CONTENTS

PEOPLE VS KOTTINGER .......................................................................................................................................... 2

PEOPLE VS GO PIN .................................................................................................................................................. 6
PITA VS CA ................................................................................................................................................................ 8
QUISUMBING VS LOPEZ ........................................................................................................................................ 15
PEOPLE VS ALARCON ........................................................................................................................................... 18

1
PEOPLE VS KOTTINGER

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-20569 October 29, 1923

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
J. J. KOTTINGER, defendant-appellant.

Fisher, Dewitt, Perkins and Brady for appellant.

Attorney-General Villa-Real for appellee.

MALCOLM, J.:

The question to be here decided is whether or not pictures portraying the inhabitants of the country in native dress
and as they appear and can be seen in the regions in which they live, are absence or indecent. Surprising as it may
seem, the question is one of first impression not alone in the Philippine Islands, but in the United States, Great
Britain, and elsewhere. This will explain why a case which otherwise would be heard and voted in Division has
been submitted to the court in banc for decision.

On November 24, 1922, detective Juan Tolentino raided the premises known as Camera Supply Co. at 110
Escolta, Manila. He found and confiscated the post-cards which subsequently were used as evidence against J. J.
Kottinger, the manager of the company.

Out of these facts arose the criminal prosecution of J. J. Kottinger in the Court of First Instance of Manila. The
information filed in court charged him with having kept for sale in the store of the Camera Supply Co., obscene and
indecedent pictures, in violation of section 12 of Act No. 277. To this information, the defendant interposed a
demurrer based upon the ground that the facts alleged therein did not constitute an offense and were not contrary
to law; but trial court overruled the demurrer and the defendant duly excepted thereto. Following the presentation of
evidence by the Government and the defense, judgment was rendered finding the defendant guilty of the offense
charged and sentencing him to pay a fine of P50 with subsidiary imprisonment in case of insolvency, and the costs.

The five errors assigned by defendant-appellant in this court divide themselves into two general issues. The first
point sustained by counsel for the appellant is in nature a technical objection, growing out of the defendant's
demurrer. The second point, in reality the decesive issue, is as suggested in the beginning of the decision. We will
take upon the assignments of errors as thus classified in order.

Act No. 277 is the Philippine Libel Law. But included therein is a section, No. 12, making obscene or indecent
publications misdemeanors. Said section 12 which, it is contended by the Government, has here been violated, and
which, appellant argues, does not apply to the information and the facts, reads as follow:

Any person who writes, composes, stereotypes, prints, publishes, sells, or keeps for sale, distributes, or
exhibits any obscene or indecent writing, paper, book, or other matter, or who designs, copies, draws,
engraves, paints, or otherwise prepares any obscene picture or print, or who moulds, cuts, casts, or
otherwise makes any obscene or indecent figure, or who writes, composes, or prints any notice or
advertisement of any such writing, paper, book, print, or figure shall be guilty of a misdemeanor and
punished by a fine of not exceeding one thousand dollars or by imprisonment not exceeding one year, or
both.

2
Counsel has gone to the trouble to make a careful analysis of section 12 of the Libel Law which is intended to bear
out his thesis, first, that section 12 does not prohibit the taking, selling, and publishing of alleged obscene and
indecent pictures and prints, and second, that the information in this case charges no offense prohibited by section
12. Recall, however, that the law provides punishment, among other things, for any person who keeps for sale or
exhibits any absence or indecent writing, paper, book, or other matter, and that the information charges the
defendant, among other things, with having wilfully and feloniously kept for sale, distribution, or exhibition, obscene
and indecent pictures.

The phrase in the law "or other matter", was apparently added as a sort of "catch-all." While limited to that which is
of the same kind as its antecedent, it is intended to cover kindred subjects. The rule of ejusdem generis invoked by
counsel is by no means a rule of universal application and should be made to carry out, not to defeat, the legislative
intent. Even if the phrase "or other matter" be cobstrued to mean "or other matter of like kind," pictures and
postcards are not so far unrelated to writings, papers, and books, as not to be covered by the general words
(Commonwealth vs. Dejardin [1878], 126 Mass., 46; 30 Am. Rep., 652; Brown vs. Corbin [1889], 40 Minn., 508).

The line of argumentation is more refined that practical. Once conceded that section 12 of Act No. 277 does not
cover the present case, there yet remain for application article 571, No. 2, of the penal code, and section 730 of the
Revised Ordinances of the City of Manila. The section of the Revised Ordinances cited is most specific when it
provides in part that no person shall "exhibit, circulate, distribute, sell, offer or expose for sale, or give or deliver to
another, or cause the same to be done, any lewd, indecent, or absence book, picture, pamphlet, card, print, paper,
writing, mould, cast, figure, or any other thing."

While admittedly the information is lacking in precision and while the content of section 12 of the Libel Law is not as
inclusive as it might be, we yet conclude that the information is not fatally defective, and that said section 12 covers
the alleged facts.

We come now to decide the main issue. We repeat that our own researches have confirmed the statement of
counsel that no one parrallel case be found. We must perforce reason from the general to the specific and from
universal principle to actual fact.

The pictures which it is argued offend against the law on account of being obscene and indecent, disclose six
different postures of non-Christian inhabitants of the Philippines. Exhibit A carries the legend "Philippines, Bontoc
Woman." Exhibit A-1 is a picture of five young boys and carries the legend "Greetings from the Philippines." Exhibit
A-2 has the legend "Ifugao Belle, Philippines. Greetings from the Philippines." Exhibit A-3 has the legend "Igorot
Girl, Rice Field Costume." Exhibit A-4 has the legend "Kalinga Girls, Philippines. Exhibit A-5 has the legend "Moros
Philippines."

The prosecution produced no evidence proving the postcards obscene and indecent because it thought the post-
cards themselves the best evidence of that fact. The fiscal admitted in open court "that those pictures represented
the natives (non-Christians) in their native dress." The defendant, on the other hand, attempted to show that the
pictures as true to life. Dr. H. Otley Beyer, Professor in the University of the Philippines, corroborated by other
witnesses, testified from his studies in various parts of the Islands, such as the Mountain Province, Abra, Palawan,
and Mindanao and Sulu, that none of the pictures represented poses which he had not observed on various
occasions, and that the costumes worn by the people in the pictures are the true costumes regularly worn by them.
Are such pictures obscene or indecent?

The word "obscene" ands the term "obscenity" may be defined as meaning something offensive to chastify,
decency, or delicacy. "Indeceny" is an act against behavior and a just delicacy. The test ordinarily followed by the
courts in determining whether a particular publication or other thing is obscene within the meaning of the statutes, is
whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to
such immoral influences and into whose hands a publication or other article charged as being obscene may fall.
Another test of obscenity is that which shocks the ordinary and common sense of men as an indecency, (29 Cyc.,
1315; 8 R. C. L., 312.)

The Philippine statute does not attempt to define obscene or indecent pictures, writings, papers, or books. But the
words "obscene or indecent" are themselves descriptive. They are words in common used and every person of
average intelligence understand their meaning. Indeed, beyond the evidence furnished by the pictures themselves,
3
there is but little scope for proof bearing on the issue of obscenity or indecency. Whether a picture is obscene or
indecent must depend upon the circumstances of the case. (People vs. Muller [1884], 96 N. Y., 408; 48 Am. Rep.,
635.)

Considerable light can be thrown on the subject by turning to the Federal Laws prohibiting the use of the mails for
obscene matter and prohibiting the importation into the Philippine Islands of articles, etc., of obscene or indecent
character. (U. S. Rev. Stat., art. 3893; 36 stat. at L., 135; 7 Fed. Stat. Ann., 1194, sec. 3[b].)

"Obscene," as used in the Federal Statutes making it a criminal offense to place in the mails any obscene, lewd, or
lascivious publication, according to the united States Supreme Court and lesser Federal courts, signifies that form
of immorality which has relation to sexual impurity, and has the same meaning as is given at common law in
prosecutions for obscene libel. (Swearingen vs. U. S. [1896], 161 U. S., 446; U. S. vs. Males [1892], 51 Fed., 41; 6
Words and Phrases, 4888, 4889.)

The case of United States vs. Harmon ([189], 45 Fed., 414), grew out of an indictment for despositing an obscene
publication in a United States post-office in violator of the Postal Law. Judge Philips said:

The statute does not undertake to define the meaning of the terms "obscene," etc., further than may be implied by
the succeeding phrase, "or other publication of an indecent character." On the well-organized canon of construction
these words are presumed to have been employed by the law-maker in their ordinary acceptation and use.

As they cannot be said to have acquired any technical significance as applied to some particular matter,
calling, or profession, but are terms of popular use, the court might perhaps with propriety leave their import
to the presumed intelligence of the jury. A standard dictionary says that "obscene" mean "offensive to
chastity and decency; expressing or presenting to the mind or view something which delicacy, purity, and
decency forbid to be exposed." This mere dictionary definition may be extended or amplified by the courts
in actual practice, preserving, however, its essential though, and having always due regard to the popular
and proper sense in which the legislature employed the term. Chief Justice Cockburn, in Rex vs. Hicklin (L.
R. 3 Q. B., 360), said: "The test of obscenity is this: Where the tendency of the matter charged as obscene
is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a
publication of this sort may fall;" and where "it who suggest to the minds of the young of either sex, or even
to persons of more advanced years, thoughts of the most impure and libidinous character." So, also, it has
been held that a book is obscene which is offensive to decency or chastity, which is immodest, which is
indelicate, impure, causing lewd thoughts of an immoral tendency." U. S. vs. Bennet, 16 Blatchf., 338.
Judge Thayer, in U. S. vs. Clarke, 38 Fed. Rep., 732, observed:

"The word "obscene" ordinarily means something which is offensive to chastity; something that is
foul or filthy, and for that reason is offensive to pure-minded persons. That is the meaning of the
word in the concrete; but when used, as in the statute, to describe the character of a book,
pamphlet, or paper, it means containing immodest and indecent matter, the reading whereof would
have a tendency to deprave and corrupt the minds of those into whose hands the publication might
fall whose minds are open to such immoral influences."

Laws of this character are made for society in the aggregate, and not in particular. So, while there may be
individuals and societies of men and women of peculiar motions are idiosyncrasies, whose moral sense
would neither be depraved nor offended by the publication now under consideration, yet the exceptional
sensibility, or want of sensibility, of such cannot be allowed as a standard by which its obscenity or
indecency is to be tested. Rather is the test, what is the judgment of the aggregate sense of the community
reached by it? What is its probable, reasonable effect on the sense of decency, purity, and chastity of
society, extending to the family, made up of men and women, young boys and girls, the family, which is
the common nursery of mankind, the foundation rock upon which the state reposes?

. . . To the pure all things are pure, is too poetical for the actualities of practical life. There is in the popular
conception and heart such a thing as modesty. It was born in the Garden of Eden. After Adam and Eve ate
of the fruit of the tree of knowledge they passed from the condition of perfectibility which some people
nowadays aspire to, and, their eyes being opened, they discerned that there was both good and evil; "and
they knew that they were naked; and they sewed fig leaves together, and made themselves aprons." From
4
 that day to this civilized man has carried with him the sense of shame, the feeling that there were some
things on which the eye the mind should not look; and where men and women become so depraved
by the use, or so insensate from perverted education, that they will not evil their eyes, nor hold their
tongues, the government should perform the office for them in protection of the social compact and the
body politic.

As above intimated, the Federal statue prohibits the importation or shipment into the Philippine Islands of the
following: "Articles, books, pamphlets, printed matter, manuscripts, typewritten matter, paintings, illustrations,
figures or objects of obscene or indecent character or subversive of public order." There are, however, in the
record, copies of reputable magazines which circulate freely thruout the United States and other countries, and
which are admitted into Philippines without question, containing illustrations identical in nature to those forming the
basis of the prosecution at bar. Publications of the Philippine Government have also been offered in evidence such
as Barton's "Ifugao Law," the "Philippine Journal of Science" for October, 1906, and the Reports of the Philippine
Commission for 1903, 1912, and 1913, in which are found illustrations either exactly the same or nearly akin to
those which are now impugned.

It appears therefore that a national standard has been set up by the Congress of the United States. Tested by that
standard, it would be extremely doubtful if the pictures here challenged would be held obscene or indecent by any
state of Federal court. It would be particularly unwise to sanction a different type of censorship in the Philippines
that in the United States, or for that matter in the rest of the world.

The pictures in question merely depict persons as they actually live, without attempted presentation of persons in
unusual postures or dress. The aggregate judgment of the Philippine community, the moral sense of all the people
in the Philippines, would not be shocked by photographs of this type. We are convicted that the post-card pictures
in this case cannot be characterized as offensive to chastity, or foul, or filthy.

We readily understand the laudable motives which moved the Government to initiate this prosecution. We fully
appreciate the sentiments of colleagues who take a different view of the case. We would be the last to offend the
sensibilities of the Filipino people and the sanction anything which would hold them up to ridicule in the eyes of
mankind. But we emphasize that we are not deciding a question in political theory or in social ethics. We are
dealing with a legal question predicated on a legal fact, and on this question and fact, we reach the conclusion that
there has not been proved a violation of section 12 of the Libel Law. When other cases predicated on other states
of facts are brought to our attention, we will decide them as they arise.

We seem to recall the statement of counsel that the proprietor of the photographic concern whom he represents
would on his own initiative place suitable and explicit inscriptions on the pictures so that no one may be misled as
to them. Indeed, he might even go further and out of consideration for the natural sensibilities of his customers,
withdraw from sale certain pictures which can be pointed out to him.

We hold that pictures portraying the inhabitants of the country in native dress and as they appear and can be seen
in the regions in which they live, are not obscene or indecent within the meaning of the Libel Law. Disagreeing
therefore with the appellant on his technical argument but agreeing with him on his main contention, it becomes our
duty to order the dismissal of the information. 1awph!l.net

Judgment is reversed, the information is dismissed, and the defendant-appellant is acquitted with all costs de oficio.
So ordered.

5
PEOPLE VS GO PIN

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-7491 August 8, 1955

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GO PIN, defendant-appellant.

J. Perez Cardenas and Castao and Ampil for defendant.

Office of the Solicitor General Querube C. Makalintal and Solicitor Jesus A. Avancea for appellee.

MONTEMAYOR, J.:

Go Pin, an alien and a Chinese citizen, was charged with a violation of Article 201 of the Revised Penal Code for
having exhibited in the City of Manila at the Globe Arcade, a recreation center, a large number of one-real 16-
millimeter films about 100 feet in length each, which are allegedly indecent and/or immoral. At first, he pleaded not
guilty of the information but later was allowed by the court to change his plea to that of guilty which he did. Not
content with the plea of guilty the trial court had the films in question projected and were viewed by it in order to
evaluate the same from the standpoint of decency and morality. Thereafter, and considering the plea of guilty
entered by the accused, and the fact that after viewing the films the trial court noted only a slight degree of
obscenity, indecency and immorality in them, it sentenced the appellant to 6 months and 1 day of prision
correcciconal and to pay a fine of P300, with subsidiary imprisonment in case of insolvency, and to pay the costs.
He is now appealing from the decision.

Go Pin does not deny his guilt but he claims that under the circumstances surrounding the case, particularly the
slight degree of obscenity, indecency and immorality noted by the court in the films, the prison sentence should be
eliminated from the penalty imposed. His counsel brings to our attention some authorities to the effect that paintings
and pictures of women in the nude, including sculptures of that kind are not offensive because they are made and
presented for the sake of art. We agree with counsel for appellant in part. If such pictures, sculptures and paintings
are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in
art, there would be no offense committed. However, the pictures here in question were used not exactly for art's
sake but rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being
commercialized so that the cause of art was of secondary or minor importance. Gain and profit would appear to
have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the
persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists
and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their
artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love for
excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves
from the ill and perverting effects of these pictures.

Before rendering sentence the trial court asked the prosecuting attorney for this recommendation and said official
recommendation that "considering that the accused Go Pin is an alien who is supposed to maintain a high degree
of morality while he is in the Philippines", and "considering that he engaged in a very nefarious trade, which
degenerates the moral character of our youth, who are usually the regular customers of his trade", he
recommended that appellant be sentenced to 2 years imprisonment and a fine of P300. Notwithstanding this
recommendation, the trial court as already said, probably considering its opinion that the pictures were not so
obscene, indecent and immoral but only slightly so, gave appellant only 6 months and 1 day of prision
correccional in addition to P300 fine.

6
The penalty imposed by the trial court is within the range provided by Article 201 of the Revised Code. We are
satisfied that in imposing the penalty the trial court made use of its sound discretion, and we find no reason for
modifying the said sentence. The Solicitor General in his brief even urges that we recommend to the proper
authorities that deportation proceedings be instituted against appellant as an undesirable alien. The trial court could
have done this but did not do so, believing perhaps that it was warranted. We repeat that we do not feel justifi ed in
interfering with the discretion of the trial court in the imposition of the sentence in this case.

In view of the foregoing, the decision appealed from is affirmed, with costs.

7
PITA VS CA

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 80806 October 5, 1989

LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.

William C. Arceno for petitioner.

Casibang, Perello and De Dios for private respondent.

SARMIENTO, J.:

The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of the Court of
Appeals, 1 rejecting his appeal from the decision of the Regional Trial Court, dismissing his complaint for injunctive
relief. He invokes, in particular, the guaranty against unreasonable searches and seizures of the Constitution, as
well as its prohibition against deprivation of property without due process of law. There is no controversy as to the
facts. We quote:

On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of
Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary Services
Bureau, Western Police District, INP of the Metropolitan Police Force of Manila, seized and
confiscated from dealers, distributors, newsstand owners and peddlers along Manila sidewalks,
magazines, publications and other reading materials believed to be obscene, pornographic and
indecent and later burned the seized materials in public at the University belt along C.M. Recto
Avenue, Manila, in the presence of Mayor Bagatsing and several officers and members of various
student organizations.

Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and
co-edited by plaintiff Leo Pita.

On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ of
preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as superintendent of
Western Police District of the City of Manila, seeking to enjoin and/or restrain said defendants and
their agents from confiscating plaintiffs magazines or from otherwise preventing the sale or
circulation thereof claiming that the magazine is a decent, artistic and educational magazine which
is not per seobscene, and that the publication is protected by the Constitutional guarantees of
freedom of speech and of the press.

By order dated December 8, 1 983 the Court set the hearing on the petition for preliminary
injunction on December 14,1983 and ordered the defendants to show cause not later than
December 13, 1983 why the writ prayed for should not be granted.

On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary restraining
order. against indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy"
Magazines, pending hearing on the petition for preliminary injunction in view of Mayor Bagatsing's

8
 pronouncement to continue the Anti-Smut Campaign. The Court granted the temporary restraining
order on December 14, 1983.

In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing admitted the
confiscation and burning of obscence reading materials on December 1 and 3, 1983, but claimed
that the said materials were voluntarily surrendered by the vendors to the police authorities, and
that the said confiscation and seizure was (sic) undertaken pursuant to P.D. No. 960, as amended
by P.D. No. 969, which amended Article 201 of the Revised Penal Code. In opposing the plaintiffs
application for a writ of preliminary injunction, defendant pointed out that in that anti- smut
campaign conducted on December 1 and 3, 1983, the materials confiscated belonged to the
magazine stand owners and peddlers who voluntarily surrendered their reading materials, and that
the plaintiffs establishment was not raided.

The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.

On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ of
preliminary injunction, raising the issue as to "whether or not the defendants and/or their agents
can without a court order confiscate or seize plaintiffs magazine before any judicial finding is made
on whether said magazine is obscene or not".

The restraining order issued on December 14,1983 having lapsed on January 3,1984, the plaintiff
filed an urgent motion for issuance of another restraining order, which was opposed by defendant
on the ground that issuance of a second restraining order would violate the Resolution of the
Supreme Court dated January 11, 1983, providing for the Interim Rules Relative to the
Implementation of Batas Pambansa Blg. 129, which provides that a temporary restraining order
shall be effective only for twenty days from date of its issuance.

On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support of his
opposition to the issuance of a writ of preliminary injunction.

On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16,
1984 "for the parties to adduce evidence on the question of whether the publication 'Pinoy Playboy
Magazine alleged (sic) seized, confiscated and/or burned by the defendants, are obscence per se
or not".

On January 16, 1984, the Court issued an order granting plaintiffs motion to be given three days "to
file a reply to defendants' opposition dated January 9, 1984, serving a copy thereof to the counsel
for the defendants, who may file a rejoinder within the same period from receipt, after which the
issue of Preliminary Injunction shall be resolved".

Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his Comment
on plaintiff s supplemental Memorandum on January 20, 1984, and plaintiff filed his "Reply-
Memorandum" to defendants' Comment on January 25, 1984.

On February 3, 1984, the trial court promulgated the Order appealed from denying the motion for a
writ of preliminary injunction, and dismissing the case for lack of merit. 2

The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:

We cannot quarrel with the basic postulate suggested by appellant that seizure of allegedly
obscene publications or materials deserves close scrutiny because of the constitutional guarantee
protecting the right to express oneself in print (Sec. 9, Art. IV), and the protection afforded by the
constitution against unreasonable searches and seizure (Sec. 3, Art.IV). It must be equally
conceded, however, that freedom of the press is not without restraint as the state has the right to
protect society from pornographic literature that is offensive to public morals, as indeed we have
laws punishing the author, publishers and sellers of obscene publications (Sec. I , Art. 201,

9
 Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969). Also well settled is the rule
that the right against unreasonable searches and seizures recognizes certain exceptions, as when
there is consent to the search or seizure, (People vs. Malesugui 63 Phil. 22) or search is an
incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is
conducted in a vehicle or movable structure (See Papa vs. Magno, 22 SCRA 857). 3

The petitioner now ascribes to the respondent court the following errors:

1. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that
the police officers could without any court warrant or order seize and confiscate petitioner's
magazines on the basis simply of their determination that they are obscene.

2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that
the trial court could dismiss the case on its merits without any hearing thereon when what was
submitted to it for resolution was merely the application of petitioner for the writ of preliminary
injunction. 4

The Court states at the outset that it is not the first time that it is being asked to pronounce what "obscene" means
or what makes for an obscene or pornographic literature. Early on, in People vs. Kottinger, 5 the Court laid down the
test, in determining the existence of obscenity, as follows: "whether the tendency of the matter charged as obscene,
is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a
publication or other article charged as being obscene may fall." 6 "Another test," so Kottinger further declares, "is
that which shocks the ordinary and common sense of men as an indecency. " 7 Kottinger hastened to say, however,
that "[w]hether a picture is obscene or indecent must depend upon the circumstances of the case, 8 and that
ultimately, the question is to be decided by the "judgment of the aggregate sense of the community reached by it." 9

Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a problem that has
grown increasingly complex over the years. Precisely, the question is: When does a publication have a corrupting
tendency, or when can it be said to be offensive to human sensibilities? And obviously, it is to beg the question to
say that a piece of literature has a corrupting influence because it is obscene, and vice-versa.

Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave the final say to a
hypothetical "community standard" whatever that is and that the question must supposedly be judged from
case to case.

About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article 201 of the
Revised Penal Code. Go Pin, was also even hazier:

...We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown
in art exhibit and art galleries for the cause of art, to be viewed and appreciated by people
interested in art, there would be no offense committed. However, the pictures here in question were
used not exactly for art's sake but rather for commercial purposes. In other words, the supposed
artistic qualities of said pictures were being commercialized so that the cause of art was of
secondary or minor importance. Gain and profit would appear to have been the main, if not the
exclusive consideration in their exhibition; and it would not be surprising if the persons who went to
see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and
persons interested in art and who generally go to art exhibitions and galleries to satisfy and
improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste,
and lust, and for love for excitement, including the youth who because of their immaturity are not in
a position to resist and shield themselves from the ill and perverting effects of these pictures. 11

xxx xxx xxx

As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided.
It is easier said than done to say, indeed, that if "the pictures here in question were used not exactly for art's sake
but rather for commercial purposes," 12 the pictures are not entitled to any constitutional protection.

10
It was People v. Padan y Alova , 13 however, that introduced to Philippine jurisprudence the "redeeming" element
that should accompany the work, to save it from a valid prosecution. We quote:

...We have had occasion to consider offenses like the exhibition of still or moving pictures of
women in the nude, which we have condemned for obscenity and as offensive to morals. In those
cases, one might yet claim that there was involved the element of art; that connoisseurs of the
same, and painters and sculptors might find inspiration in the showing of pictures in the nude, or
the human body exhibited in sheer nakedness, as models in tableaux vivants. But an actual
exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In
it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity,
indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and
lewdness, and exerting a corrupting influence specially on the youth of the land. ... 14

Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition was
attended by "artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and
improve their artistic tastes," 15 could the same legitimately lay claim to "art"? For another, suppose that the
exhibition was so presented that "connoisseurs of [art], and painters and sculptors might find inspiration," 16 in it,
would it cease to be a case of obscenity?

Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted an ad lib of
Ideas and "two-cents worths" among judges as to what is obscene and what is art.

In a much later decision, Gonzalez v. Kalaw Katigbak, 17 the Court, following trends in the United States, adopted
the test: "Whether to the average person, applying contemporary standards, the dominant theme of the material
taken as a whole appeals to prurient interest." 18 Kalaw-Katigbak represented a marked departure from Kottinger in
the sense that it measured obscenity in terms of the "dominant theme" of the work, rather than isolated passages,
which were central toKottinger (although both cases are agreed that "contemporary community standards" are the
final arbiters of what is "obscene"). Kalaw-Katigbak undertook moreover to make the determination of obscenity
essentially a judicial question and as a consequence, to temper the wide discretion Kottinger had given unto law
enforcers.

It is significant that in the United States, constitutional law on obscenity continues to journey from development to
development, which, states one authoritative commentator (with ample sarcasm), has been as "unstable as it is
unintelligible." 19

20
Memoirs v. Massachusettes, a 1966 decision, which characterized obscenity as one "utterly without any
redeeming social value," 21 marked yet another development.

22
The latest word, however, is Miller v. California, which expressly abandoned Massachusettes, and established
"basic guidelines," 23 to wit: "(a) whether 'the average person, applying contemporary standards' would find the
work, taken as a whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a
whole, lacks serious literary, artistic, political, or scientific value." 24

(A year later, the American Supreme Court decided Hamling v. United States 25 which repeated Miller, and Jenkins
v. Georgia, 26 yet another reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion
picture, Carnal Knowledge, in the absence of "genitals" portrayed on screen, although the film highlighted
contemporary American sexuality.)

The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed to the
reluctance of the courts to recognize the constitutional dimension of the problem . 27 Apparently, the courts have
assumed that "obscenity" is not included in the guaranty of free speech, an assumption that, as we averred, has
allowed a climate of opinions among magistrates predicated upon arbitrary, if vague theories of what is acceptable
to society. And "[t]here is little likelihood," says Tribe, "that this development has reached a state of rest, or that it
will ever do so until the Court recognizes that obscene speech is speech nonetheless, although it is subject as in
all speech to regulation in the interests of [society as a whole] but not in the interest of a uniform vision of how
human sexuality should be regarded and portrayed." 28
11
In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police power, to
suppress smut provided it is smut. For obvious reasons, smut is not smut simply because one insists it is smut. So
is it equally evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid
advance of civilization. What shocked our forebears, say, five decades ago, is not necessarily repulsive to the
present generation. James Joyce and D.H. Lawrence were censored in the thirties yet their works are considered
important literature today. 29 Goya's La Maja desnuda was once banned from public exhibition but now adorns the
world's most prestigious museums.

But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said earlier, it is the
divergent perceptions of men and women that have probably compounded the problem rather than resolved it.

What the Court is impressing, plainly and simply, is that the question is not, and has not been, an easy one to
answer, as it is far from being a settled matter. We share Tribe's disappointment over the discouraging trend in
American decisional law on obscenity as well as his pessimism on whether or not an "acceptable" solution is in
sight.

In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect" definition of
"obscenity", if that is possible, as evolving standards for proper police conduct faced with the problem, which, after
all, is the plaint specifically raised in the petition.

However, this much we have to say.

Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not its protection. In
free expression cases, this Court has consistently been on the side of the exercise of the right, barring a "clear and
present danger" that would warrant State interference and action. 30 But, so we asserted in Reyes v.
Bagatsing,31 "the burden to show the existence of grave and imminent danger that would justify adverse action ...
32
lies on the. . . authorit[ies]."

"There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and
present danger." 33 "It is essential for the validity of ... previous restraint or censorship that the ... authority does not
rely solely on his own appraisal of what the public welfare, peace or safety may require." 34

"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present
danger test." 35

The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we may arrive at
one-but rather as a serious attempt to put the question in its proper perspective, that is, as a genuine constitutional
issue.

It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due process and illegal
search and seizure.

As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the presumption is that
the speech may validly be said. The burden is on the State to demonstrate the existence of a danger, a danger that
must not only be: (1) clear but also, (2) present, to justify State action to stop the speech. Meanwhile, the
Government must allow it (the speech). It has no choice. However, if it acts notwithstanding that (absence of
evidence of a clear and present danger), it must come to terms with, and be held accountable for, due process.

The Court is not convinced that the private respondents have shown the required proof to justify a ban and to
warrant confiscation of the literature for which mandatory injunction had been sought below. First of all, they were
not possessed of a lawful court order: (1) finding the said materials to be pornography, and (2) authorizing them to
carry out a search and seizure, by way of a search warrant.

The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the state has the right
to protect society from pornographic literature that is offensive to public morals." 36 Neither do we. But it brings us
back to square one: were the "literature" so confiscated "pornographic"? That we have laws punishing the author,
12
publisher and sellers of obscence publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960
and P.D. No. 969)," 37 is also fine, but the question, again, is: Has the petitioner been found guilty under the
statute?

The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to seize property in
disregard of due process. In Philippine Service Exporters, Inc. v. Drilon, 38 We defined police power as "state
authority to enact legislation that may interfere with personal liberty or property in order to promote the general
welfare ." 39Presidential Decrees Nos. 960 and 969 are, arguably, police power measures, but they are not, by
themselves, authorities for high-handed acts. They do not exempt our law enforcers, in carrying out the decree of
the twin presidential issuances (Mr. Marcos'), from the commandments of the Constitution, the right to due process
of law and the right against unreasonable searches and seizures, specifically. Significantly, the Decrees
themselves lay down procedures for implementation. We quote:

Sec. 2. Disposition of the Prohibited Articles. The disposition of the literature, films, prints,
engravings, sculptures, paintings, or other materials involved in the violation referred to in Section 1
hereof (Art. 201), RPC as amended) shall be governed by the following rules:

(a) Upon conviction of the offender, to be forfeited in favor of the Government to be destroyed.

(b) Where the criminal case against any violator of this decree results in an acquittal, the
obscene/immoral literature, films, prints, engravings, sculptures, paintings or other materials and
articles involved in the violation referred to in Section 1 (referring to Art. 201) hereof shall
nevertheless be forfeited in favor of the government to be destroyed, after forfeiture proceedings
conducted by the Chief of Constabulary.

(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen
(15) days after his receipt of a copy of the decision, appeal the matter to the Secretary of National
Defense for review. The decision of the Secretary of National Defense shall be final and
unappealable. (Sec. 2, PD No, 960 as amended by PD No. 969.)

Sec. 4. Additional Penalties. Additional penalties shall be imposed as follows:

1. In case the offender is a government official or employee who allows the violations of Section I
hereof, the penalty as provided herein shall be imposed in the maximum period and, in addition,
the accessory penalties provided for in the Revised Penal Code, as amended, shall likewise be
imposed .40

Under the Constitution, on the other hand:

SEC. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined by the judge, or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be seized.

It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become
unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP, 43 We counter-minded the orders of the
Regional Trial Court authorizing the search of the premises of We Forum and Metropolitan Mail, two Metro Manila
dailies, by reason of a defective warrant. We have greater reason here to reprobate the questioned raid, in the
complete absence of a warrant, valid or invalid. The fact that the instant case involves an obscenity rap makes it no
different from Burgos, a political case, because, and as we have indicated, speech is speech, whether political or
"obscene".

The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then prevailing),
provide:

13
 SEC. 12. Search without warrant of personarrested. A person charged with an offense may be
searched for dangerous weapons or anything which may be used as proof of the commission of the
offense. 44

but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the arrest must
be on account of a crime committed. Here, no party has been charged, nor are such charges being readied against
any party, under Article 201, as amended, of the Revised Penal Code.

We reject outright the argument that "[t]here is no constitutional nor legal provision which would free the accused of
all criminal responsibility because there had been no warrant," 45 and that "violation of penal law [must] be
punished." 46 For starters, there is no "accused" here to speak of, who ought to be "punished". Second, to say that
the respondent Mayor could have validly ordered the raid (as a result of an anti-smut campaign) without a lawful
search warrant because, in his opinion, "violation of penal laws" has been committed, is to make the respondent
Mayor judge, jury, and executioner rolled into one. And precisely, this is the very complaint of the petitioner.

We make this resume.

1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion,
an obscenity rap is in order;

2. The authorities must convince the court that the materials sought to be seized are "obscene",
and pose a clear and present danger of an evil substantive enough to warrant State interference
and action;

3. The judge must determine whether or not the same are indeed "obscene:" the question is to be
resolved on a case-to-case basis and on His Honor's sound discretion.

4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for;

5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code;

6. Any conviction is subject to appeal. The appellate court may assess whether or not the
properties seized are indeed "obscene".

These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against
abuse of official power under the Civil Code" 47 or the Revised Penal code . 48

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and SET ASIDE. It
appearing, however, that the magazines subject of the search and seizure ave been destroyed, the Court declines
to grant affirmative relief. To that extent, the case is moot and academic.

SO ORDERED.

14
QUISUMBING VS LOPEZ

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-6465 January 31, 1955

NORBERTO QUISUMBING, petitioner-appellant,

vs.
EUGENIO LOPEZ, ET AL., respondents-appellees.

Quisumbing, Sycip, Quisumbing and Salazar for petitioner.

San Juan, Africa, Yiguez and Benedicto for respondents.

PARAS, C.J.:

The respondents Eugenio Lopez, Ernesto del Rosario and Roberto Villanueva are the publisher, editor-in-chief, and
general manager respectively of The Manila Chronicle, a daily newspaper published and circulated in English in the
City of Manila. On July 15, 1949, the petitioner, Norberto Quisumbing, filed a complaint against said respondents in
the Court of First Instance of Manila for the recovery of damages in the sum of P50,000 as a result of the following
alleged libelous publication in The Manila Chronicle of November 7, 1947:

NBI MEN RAID OFFICES OF 3 CITY USURERS

Giving effect to the announced NBI policy of not allowing usury cases to be settled extrajudicially, agents of
anti-usury board, National Bureau of Investigation, yesterday raided the business offices of three alleged
Manila money lenders.

Raided were the offices of Norberto Quisumbing, a businessman and broker, at the Trade and Commerce,
and Ngo Seng and Go Pin, at 530 Elcano Street Binondo.

The anti-usury board acted following receipt of a complaint against the three businessmen. Adolfo N.
Feliciano, chief of the anti-usury division, disclosed yesterday that criminal action against the three will
soon be filed the city fiscal's office.

The raids were conducted under the supervision of Agents Alfredo D. San Miguel and Justo I. Ibay.

After answer and trial the Court of First Instance of Manila rendered a judgment dismissing the complaint from
which the petitioner appealed to the Court of Appeals. The latter Court, in its decision promulgated on January 19,
1953, affirmed the judgment of the court of origin; and the case is now before us on petition for review
oncertiorari filed by the petitioner.

The Court of Appeals found "that the context of the article in question, is a fair, impartial and true report of official or
public proceeding authorized by law. The news item was the result of a press release in connection with an official
investigation of the Anti-Usury Division, N.B.I., and was a substantial, if not a faithful reproduction of the said press
release which was, in turn, an accurate report of the official proceedings taken by the Anti-Usury Division. The
article merely reported a raid on the 'business offices of three alleged money lenders'; and related the steps
actually taken or to be taken by the proper officials relative to the investigation. It did not go beyond the actual
report of official actuations. The theory of the petitioner, stripped of incidentals, is that while the body of the news
item may be considered as being a fair, impartial and accurate report of an official investigation of the Anti-Usury
Division of the National Bureau of Investigation and therefore privileged, its headline NBI MEN RAID OFFICES OF
3 CITY USURERS", admittedly not forming part of the basic press release but merely added by the respondents, is

15
libelous per se, because the petitioner had thereby been branded and condemned as a "usurer" when as a matter
of fact no criminal charge was even filed against him for the crime of usury in any court of justice. The petitioner has
cited American authorities to the effect that the headline, in which "sting" is frequently found, when unsupported by
the article, is in itself libelous; or that the headline may be libelous while the body is privileged. Typical citations are
the following:

The headline of an article or paragraph, being so conspicuous as to attract the attention of persons who
look casually over a paper without carefully reading all its contents, may in itself inflict very serious injury
upon a person, both because it may be the only part of the article which is read, and because it may cast a
graver imputation than all the other words following it. There is no doubt that in publications concerning
private persons, as well as in all other publications which are claimed to be libelous, the headlines directing
the attention to the publication may be considered as a part of it and may even justify a court in regarding
the publication as libelous when the body of the article is not necessarily so. (Note to McAllister vs. Detroit
Free Press Co., 15 Am. St. Rep. 347).

Headlines which are voluntarily defamatory statements of the publisher are not privileged even though they
head a privileged report of a judicial or other public proceedings. (Dorr vs. United States, 105 U.S. 138, 49
L. ed. 128, 24 S. Ct. 808; Brown vs. Globe Printing Co., 213 Mo. 611, 112 S.W. 462, 127 Am St. Rep. 627.)

It is not necessary to reiterate the rule that the headline of an article might be libelous while the body of the
article is privileged. The whole libel might be included in the headlines. In fact, the dissemination of a libel is
more effectually done through catchy and sensational headlines and scarehead comment than through the
material in an article, because, as is well known, a majority of readers do not peruse the body of articles.
(Express Pub. Co. vs. Lancaster [1924], 270 S.W. 229.)

Upon the other hand, the respondents contend that the published matter alleged to be libelous must be construed
as a whole (Jimenez vs. Reyes, 27 Phil., 52; U.S., vs. O'Connel, 37 Phil., 767; U.S., vs. Sotto, 38 Phil., 666). The
Court of Appeals adopted this contention and invoked the following rule: "The article must be construed as an
entirely including the headlines, as they may enlarge, explain, or restrict or be enlarged, explained or strengthened
or restricted by the context . . .. Whether or not it is libelous, depends upon the scope, spirit and motive of the
publication taken in its entirely." (Wiley vs. Oklahoma Press Pub. Co., 106 Okla., 52; 233 Pacc., 244; 40 ALR 573;
also Wing vs. Wing, 66 Mo. 62; 22 Am. Rep. 481; Dorr vs. U.S., 195 U.S., 138, 49 L Ed. 128.) Indeed, the appellant
cited in his brief the following cases in support of the same proposition that the whole article including the headline
must be read and construed together:

A publication claimed to be defamatory must be read and construed in the sense in which the readers to
whom it is addressed would ordinarily understand it. So, the whole item, including display lines, should be
read and construed together, and its meaning and signification thus determined. (Commercial Pub.
Co. vs.Smith [1907], 79 C.G.A. 410, 149 Fed., 704.)

In order to ascertain the meaning of a published article, the whole of the article must be considered, each
phrase must be construed in the light of the entire publication, and the words are to be taken in their natural
and obvious meaning and in the sense that fairly belongs to them. The headlines of a newspaper must also
be read in connection with the language which follows. (Whillfred Coal Co. vs. Sapp [1915], 193 Ill. App.
400.)

We are of the opinion that the appealed decision is correct. The petitioner, while assuming that the article in
question is privileged, argues that the headline (libelous per se) added by the respondents rendered the same
actionable, because said headline is not borne out by the facts recited in the context. We believe that nobody
reading the whole news item would come to the conclusion that the petitioner had been accused or convicted of
usury. We agree with the Court of Appeals that the headline complained of may fairly be said to contain a correct
description of the news story. the fact that the raid was conducted by anti-usury agents following receipt of a
complaint against the petitioner and two others, coupled with the announcement by the Chief of the NBI Anti -Usury
Division that criminal action would be filed in the city fiscal's office, naturally would lead one to think that the
persons involved were userers. Nothing in the headline or the context of the article suggested the idea that the
petitioner was already charged with or convicted of the crime of usury. The word "userer" simply means one who
practices usury or even a mere money lender (Webster New Int. Dictionary), but certainly not a usury convict. One
16
reason invoked in the authorities cited by the appellant for basing an action for libel on the headline, is that often
times it is the only part of the article which is read. If so, the petitioner's positions would be untenable, since by
reading merely the headline in question nobody would even suspect that the petitioner was referred to; and "libel
cannot be committed except against somebody and that somebody must be properly identified"
(People vs.Andrada, 37 Off. Gaz., 1763). It may be insisted that the identity of the petitioner is revealed in the body
of the news item, but we should remember that nowhere in the context is the petitioner portrayed as one charged
with or convicted of the crime of usury.

The Court of Appeals found as a fact that "there is no evidence in the record to prove that the publication of the
news item under consideration was prompted by personal ill will or spite, or that there was intention to do harm,"
and that on the other hand there was "an honest and high sense of duty to serve the best interests of the public,
without self-seeking motive and with malice towards none." Every citizen of course has the right to enjoy a good
name and reputation, but we do not consider that the respondents, under the circumstances of this case, had
violated said right or abused the freedom of the press. The newspapers should be given such leeway and tolerance
as to enable them to courageously and effectively perform their important role in our democracy. In the preparation
of stories, press reporters and edition usually have to race with their deadlines; and consistently with good faith and
reasonable care, they should not be held to account, to a point of suppression, for honest mistakes or imperfection
in the choice of words.

Wherefore, the decision of the Court of Appeals is hereby affirmed with costs against the petitioner. So ordered.

17
PEOPLE VS ALARCON

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 46551 December 12, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,

vs.
SALVADOR ALARCON, ET AL., accused.
FEDERICO MANGAHAS, respondent-appellant.

Araneta, Zaragoza & Araneta for appellant.

Assistant Solicitor-General Salvador Abad Santos for appellee.

LAUREL, J.:

As an aftermath of the decision rendered by the Court of first Instance of Pampanga in criminal case No. 5733, The
People of the Philippines vs. Salvador Alarcon, et al., convicting the accused therein except one of the crime
of robbery committed in band, a denunciatory letter, signed by Luis M. Taruc, was addressed to His Excellency, the
President of the Philippines. A copy of said letter found its way to the herein respondent, Federico Magahas who,
as columnist of the Tribune, a newspaper of general circulation in the Philippines, quoted the letter in an article
published by him in the issue of that paper of September 23, 1937. The objectionable portion is inserted in the
following petition of the provincial fiscal of Pampanga, filed with the Court of First Instance of that province on
September 29, 1937:

PETICION PARA QUE FEDERICO MAGAHAS SEA CASTIGADO POR DESACATO

Comparece el fiscal provincial que suscribe y al Hon. Juzgado, como motivos de accion, restuosamente
alega:

1. Que el 23 de julio de 1937, el que suscribe presento una querella en la causa arriba titulada, por el delito de
ROBO EN CUADRILLA, habiendose celebrado la vista de esta causa durante los dias 28, 29 y 30 del mismo mes
y ao;

2. Que el 2 de agosto de 1937, el Hon. Juzgado dicto su decision declarando culpables a los cincuenta y dos
acusados, y condenando al acusado Ricardo Serrano 1. como jefe de la cuadrilla, a una pena indeterminada no
menor de cuatro meses de arresto mayor, ni mayor de cuatro aos de prision correccional, y a todos los demas
acusados a una pena indeterminada no menor de cuatro meses de arresto mayor, ni mayor de cuatro a os de
prision correccional, y a todos los demas acusados a una pena indeterminada no menor de dos meses y un dia de
arresto mayor, ni mayor de tres aos, ocho meses y un dia de prision correccional y al pago proporcional de las
costas;

3. Que el 9 de agosto de 1937, no estando conformes de esta decision, los referidos acusados presentaron su
escrito de apelacion para ante la Corte de Apelaciones;

4. Que el 23 de septiembre de 1937, el recurrido Federico Mangahas escribio, redacto, imprimio y publico e hizo
que se publicara en el periodico diario The Tribune que se edite en la Ciudad de Manila y de general circulacion en
las Islas Filipinas, en su numero correspondiente a dicha fecha, un articulo que hacia referencia a este Hon.
Juzgado y a la actuacion de este en esta causa, cuyo articulo en parte es del tenor siguiente:

18
'Fifty-two (52) tenants in Floridablanca, Pampanga, have been charged and convicted on a trumped up charge of
robbery in band because they took each a few cavans of palay for which they issued the corresponding receipts,
from the bodega in the hacienda where they are working. These tenants contend that they have the right to take the
palay for their food as the hacienda owner has the obligation to give them rations of palay for their maintenance
and their families to be paid later with their share of their crop. But this is not all. When the convicted tenants
appealed the case and were released on bail pending their appeal, court and public officials exerted pressure upon
one of their bondsmen, as this bondsman informed the tenants, to withdraw his bail for them, and the fifty-two
tenants were arrested again and put in jail.'lawphil.net

5. Que la publicacion de este articulo acotado constituye un verdadero desacato al Tribunal, porque tiene por
objeto obstaculizar la recta administracion de justicia, y tiende, ademas, a impresionar en el animo del Tribunal y a
ejercer influencia en la decision que se dictare en este causa;

6. Que la publicacion de dicho articulo es igualmente un verdadero desacato a este Hon. Juzgado, por ser
completamente falsos y tendenciosos los hechos expuestos en el mismo como hechos ejecutados por este Hon.
Juzgado;

7. Que el recurrido Federico Mangahas con dicho articulo acotado, voluntaria, maliciosa y deliberadamente trato y
se propuso atacar la honra, virtud y reputacion de este Hon. Juzgado exponiendolo el menosprecio y ridiculo del
publico por las imputaciones falsas, maliciosas y difamatorias contenidas en dicho articulo.

Por tanto, pide se sirva ordenar el emplazamiento del recurrido Federico Mangahas, c/o T.V.T. Publishing
Corporation, Calle Florentino Torres, Manila, para que comparezca ante este Hon. Juzgado y conteste a la
presente peticion, y, previos los tramites legales, dicho recurido sea castigado por desacato. Pide
igualmente se sirva dictar cualquier otra resolucion que en derecho proceda.

San Fernando, Pampanga, septiembre 23, 1937.

On the same date, the lower court ordered the respondent to appear and show cause. The respondent appeared
and filed an answer, alleging:

1. That he did not draft and write the paragraph above quoted in the petition of the Provincial Fiscal, but the
same is merely a part of a letter addressed to the President of the Philippines, certified copy of which is
hereto attached, and marked Exhibit "1."

2. That he caused the said letter to be copied without comments or remarks as may be seen from the
attached issue of the "The Tribune" on September 23, 1937, marked Exhibit "2."

3. That in having the said letter copied it was not the intention, much less the purpose and design of the
respondent to attack the honor, virtue and reputation of this Honorable Court but merely cited it as an
instance of the popular tendency to resort to the President in everything.

4. That far from reflecting on the honor, virtue and reputation of this Honorable Court, the publication of the
letter to the President simply constitutes an indirect criticism of the methods of the Popular Front in building
up its political prestige.

5. That the publication of the letter in question did not and does not embarrass, impede, intimidate or
influence this Honorable Court in the exercise of its judicial functions, or prevent an impartial trial in this
case, inasmuch as the case has already been decided.

6. That the respondent alleges that this case is no longer pending before this Hon. Court and therefore the
Court has lost its jurisdiction over it.

7. The respondents contends that the portion of the article quoted by the provincial fiscal in his petition for
contempt does not constitute contempt of court because it does not attack nor question the judgment of the
Court but only explain the side of the defendant.
19
 8. "The general rule is that to constitute any publication a contempt it must have reference to a matter then
pending in court, and be of a character tending to the injury of pending proceeding before if and of the
subsequent proceeding. It is accordingly held that libelous comments upon a sentence already passed in a
criminal proceeding is not a contempt." (Percival v. State, 45 Neb., 741 50 Am. St. Rept., 568; 64 NW. 221;
68 L. R.A., 255.)

9. "But comment upon the lower court's decision was held not contemptous because relating to a
concluded matter, in Re Dalton, 46 Jan., 256; 26 Pac., 673 and Dumhan v. State, 6 Iowa, 245; although the
case was then pending on appeal." (68 L.R.A., 262.) (Underlining ours.)

10. That the publication of the letter in question is in line with the constitutional guarantee of freedom of the
press.

On November 29, 2937, the lower court entered an order, the dispositive part of which read thus:

Considerando, sin embargo, todas las circunstancias del case, el Juzgado solamente impone al recurrido
una multa nominal de P25, o en case de insolvencia, cinco dias de prision sin perjuico de la accion por
libelo que el fiscal creyere conviniente incoar contra Luis M. Taruc.

Asi se ordena.

Respondent Magahas appealed from this order to the Court of Appeals which later certified the case to this
Court as involving only a question of law assigning the following errors allegedly committed by the trial court;

I. The lower court erred in finding the respondent guilty of contempt of court.

II. The lower court erred in considering the letter quoted in the article in question as falling under the Rules
on the Investigation of Judges of First Instance.

III. The lower court erred in taking jurisdiction of the motion for contempt.

Consideration of the first error is all that is necessary as the same will lead incidentally to the disposition of the
other two.

The elements of contempt by newspaper publications are well defined by the cases adjudicated in this as in other
jurisdictions. Newspaper publications tending to impede, obstruct, embarrass, or influence the courts in
administering justice in a pending suit or proceeding constitutes criminal contempt which is summarily punishable
by the courts. The rule is otherwise after the cause is ended. (In re Lozano and Quevedo, 54 Phil., 801; In
reAbistado, 57 Phil., 668.) It must, however, clearly appear that such publications do impede, interfere with, and
embarrass the administration of justice before the author of the publications should be held for contempt. (Nixon v.
State 207 Ind., 426, 193 N.E., 591, 97 A.L.R., 894.) What is thus sought to be shielded against the influence of
newspaper comments is the all-important duty of the court to administer justice in the decision of a pending case.
There is no pending case to speak of when and once the court has come upon a decision and has lost control
either to reconsider or amend it. That, we believe, is the case at bar, for here we have a concession that the letter
complained of was published after the Court of First Instance of Pampanga had decided the aforesaid criminal case
for robbery in band, and after that decision had been appealed to the Court of Appeals. The fact that a motion to
reconsider its order confiscating the bond of the accused therein was subsequently filed may be admitted; but, the
important consideration is that it was then without power to reopen or modify the decision which it had rendered
upon the merits of the case, and could not have been influenced by the questioned publication.

If it be contended, however, that the publication of the questioned letter constitutes contempt of the Court of
Appeals where the appeal in the criminal case was then pending, as was the theory of the provincial fiscal below
which was accepted by the lower court, we take the view that in the interrelation of the different courts forming our
integrated judicial system, one court is not an agent or representative of another and may not, for this reason,
punish contempts in vindication of the authority and decorum which are not its own. The appeal transfer the

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proceedings to the appellate court, and this last word becomes thereby charged with the authority to deal with
contempts committed after the perfection of the appeal.

The Solicitor-General, in his brief, suggests that "even if there had been nothing more pending before the trial court,
this still had jurisdiction to punish the accused for contempt, for the reason that the publication scandalized the
court. (13 C.J., p. 37, 45; 6 R.C.L., 513.)" The rule suggested, which has its origin at common law, is involved in
some doubt under modern English law and in the United States, "the weight of authority, however, is clearly to the
effect that comment upon concluded cases is unrestricted under our constitutional guaranty of the liberty of the
press." (Annotations, 68 L.R.A., 255.) Other considerations argue against our adoption of the suggested holding. As
stated, the rule imported into this jurisdiction is that "newspaper publications tending to impede, obstruct,
embarrass, or influence the courts in administering justice in a pending suit or proceeding constitute criminal
contempt which is summarily punishable by the courts; that the rule is otherwise after the case is ended." (In
re Lozano and Quevedo, supra; In re Abistado, supra.) In at least two instances, this Court has exercised the power
to punish for contempt "on the preservative and on the vindicative principle" (Villavicencio vs. Lukban, 39 Phil.,
778), "on the corrective and not on the retaliatory idea of punishment". In re Lozano and Quevedo, supra.)
Contempt of court is in the nature of a criminal offense (Lee Yick Hon vs. Collector of Customs, 41 Phil., 548), and
in considering the probable effects of the article alleged to be contemptuous, every fair and reasonable inference
consistent with the theory of defendant's innocence will be indulged (State v. New Mexican Printing Co., 25 N. M.,
102, 177 p. 751), and where a reasonable doubt in fact or in law exists as to the guilt of one of constructive
contempt for interfering with the due administration of justice the doubt must be resolved in his favor, and he must
be acquitted. (State v. Hazeltine, 82 Wash., 81, 143 p. 436.) The appealed order is hereby reversed, and the
respondent acquitted, without pronouncement as to costs. So ordered.

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