El Debate v. Topacio, 44 Phil.

280 ISSUE: W/N El Debate’s contests was a lottery, gift enterprise, or

similar scheme depending in whole or in part upon chance? - YES

DOCTRINE: Three elements of a lottery: consideration, prize,

HELD
chance.
● The case of ​Hudelson​, for the first time, stated that though
FACTS:
the number of beans in container for a guessing contest is
● El Debate, a newspaper of Manila, announced its two
definite, the ascertainment of that number could be nothing
guessing contests:
more than a mere guess because it was impossible under
● Votes for any of the winning candidates for Carnival
the circumstances to ensure the information for a correct
Queen either in the provinces or in Manila.
estimate. Therefore, it is a game of chance.
● Votes that the Queen elect will receive for the
● Clearly, the estimates for the El Debate contest still depends
Carnival queenship.
partly on chance even if there is also a factor of intelligent
● To be able to participate, one would have to pay in advance
calculation. The results for who will win the elections are
the amount of the subscription of a quarter which is
affected by so many factors and there is no way that the
equivalent to one coupon for each contest:
participants in the guessing contest will have control over
● one quarter = one coupon for each contest; up to
them. Thus, the element of chance is present.
four quarters (1 year) = four coupons for each.
● For the element of consideration, the petitioner argues that it
● Director of Posts Jose Topacio, following the advice of the
is only a gratuitous property by chance.
Atty. General refused to admit and disseminate the issues
● They are saying that the person who pays the subscription in
containing this advertisement because it was non-mailable
advance gets the full value of his money because he gets
matter according to the Administrative Code.
the newspapers anyway.
● Sec. 1954 (a) states that non-mailable matter includes,
● The Court says that though this may be true for the people
“Written or printed matter … concerning any lottery, gift
who really subscribe to the paper, this is not true for the
enterprise, or similar scheme depending in whole or in part
people who may subscribe merely to win a prize. Therefore,
upon lot or chance…”
the element of consideration is also present.
● According to American Jurisprudence, the term “lottery”
includes all schemes for the distribution of prizes by chance -
policy playing, gift exhibitions, prize concerts, raffles at fairs,
United States v. Hilario, 24 Phil. 392
etc, and various forms of gambling.
● There are three essential elements of a lottery: (a)
FACTS:
consideration, (b) prize, and (c) chance.
● Isidro Hilario was charged with violation of Section 621 of
● El Debate argues that only the element of prize is present,
Revised Ordinances of that City.
but consideration and chance are not.
 ● Hilario is an owner or in charge of the premises and billiard
hall situated in Pulung-Mayaman St. (in Manila).
● The municipal court of the CIty of Manila found him guilty of
violation of Sec. 621, Revised Ordinances by permitting the
playing a game called nones y pares for money and things of
value.
ISSUE:
(1) Do the allegations in the complaint show that the defendant
maintained or permitted to be maintained ​gambling devices upon
premises occupied by him? NO
(2) if the first question be answered in the negative, does section 621
of the Revised Ordinances of the city of Manila prohibit the keeping
or maintaining of any table or other instrument or device for the
purpose of playing other games than gambling games? NO
RULING:
The ordinance in question reads:
SEC. 621. Gambling devices, maintenance of. — No person shall set up,
keep, or maintain, or permit to be set up, kept, or maintained, on any premises
occupied or controlled by him, any table or other instrument or device for the purpose
of gaming or gambling, or with which money, liquor, or anything of value shall in any
manner be played for.
● At the time of the enactment of this municipal legislation, the
general law on the subject was to be found in the Penal
Code, Book 2, Title 6 and articles 529 and 579 and Book 4
Title 12 Chap 3 of the Civil Code.
● The provisions make a clear distinction between gambling
and betting
○ Betting in case the loser lost more than he could
afford to lose.
○ Gambling refers only to games of luck, chance, or
hazard
■ Act No. 1757 of Philippine Commission: it is
defined to include the playing ot the betting
upon games the result of which depends
whoolly or chiefly by chance.
■ It is no longer restricted to games of chance,
luck, or hazard but may include those in
which some element of skill affects the result
■ But it is not dependent wholly or chiefly upon
skills.
● The municipal board had before it the before it the provisions
of general law on gambling at the time of enactment of
Revised Ordinances.
● In Section 621 althought the phrase “gambling devices”
appears in the heading and also in the text of the section, no
attempt is made to make it more comprehensive than its
statutory signification (similar with other provisions of the
Ordinance 622-625)
● The Court ruled that it appears inconsistent and improbable
that the board would have penalized the possession or
maintenance of instruments or devices which were used for
playing games not depending upon chance or hazard and at
the same time provide no penalty for the actual participants
of such games.
● ONLY THE GAMES OF CHANCE WERE PROHIBITED.
● The enlarged definition of gambling under Act No. 1757 to
include those games the result of which depends upon
chiefly upon chance in now wise affect the qeustions under
consideration.
● Section 621 was only dealing with the subject of gambling in
its statutory sense, and paraphernalia used for that purpose
and did not prohibit the playing of games or the betting
 thereon or the possession of paraphernalia, the result of
which does not depend wholly or chiefly upon chance.
● In the case, there was nowhere alleged that nones y pares is
a gambling game, nor can this be inferred from the
allegations in the complaint.
United States v. Rafael, 23 Phil. 184
RECIT-READY:
SUMMARY:
P. Lopez & V. Rafael were charged w/ violation of Act. 1757 which
prohibited the game of “monte”in the house of their co-defendant
Cayetano Rafael. However, the case against against Cayetano was
dismissed, and the others were convicted. Only P. Lopez & V. Rafael
appealed. The issue if WON defendants Lopez & Rafael were guilty
beyond reasonable doubt of playing the prohibited game of “monte”.
SC said YES. First, game paraphernalia used in playing “monte” is
not a necessary part of the game. It is only a convenience. Hence,
while such paraphernalia may furnish evidence, it is not conclusive
evidence to prove that parties had been playing “monte”. What is
material is that there wer eyewitnesses to the playing of the
prohibited game. In this case, there were 2 or 3 witnesses presented
who had actually seen Lopez & Rafael playing “monte”. Second,
while it is true that “monte” is generally played with money, the use of
money is not a necessary element in the crime as defined by the law.
What the law prohibits absolutely is the playing of the game. The
mere fact that money was or was not used in no way constitutes an
element of the crime.​|||
FACTS:
1. Defendants, Cayetano Rafael, Perseveranda Lopez, Victor
Discipulo, Victoriano Rafael, and Guillermo Juanesa, were
charged with violation of Act. No. 1757 which prohibits the
playing of the gambling game “Monte.”
2. The case against Cayetano Rafael was dismissed because
there was no proof to connect him with the commission of the
alleged crime. The other 4 accused were convicted and
sentenced to pay P300 each, pay the costs jointly, and in case of
insolvency, suffer subsidiary imprisonment.
3. Only Lopez and V. Rafael appealed.
ISSUE:
1. WON the defendants are guilty beyond reasonable doubt of
playing the prohibited game of “Monte” = YES
RATIO:
1. First, the lower court found that there was sufficient evidence to
prove, beyond reasonable doubt, that the defendants were
playing the prohibited game even without reference to the
exhibits (tally sheets, lead pencils, and other things which they
believed had been used in connection with the game of monte).
2. ​The mere fact that the tally-sheets, lead pencils and other things
had been found at the time the defendants Lopez & Rafael were
seen gambling, could in no way furnish additional proof that 2 or
3 witnesses presented by the prosecution had actually seen the
Lopez & Rafael playing the prohibited game of ​monte​. Generally
there is certain paraphernalia used in playing the prohibited
game of ​monte​. But this paraphernalia is not a necessary part of
the game. It is only a convenience.​|||
3. When the particular paraphernalia is found, however, it of itself
may furnish some evidence, although not conclusive, that the
parties using it had been playing the prohibited game. But when
there were eyewitness to the playing of the prohibited game, the
existence of the paraphernalia could only be corroborative.​|||
4. It was not shown during the trial of the cause that the tally sheets,
lead pencils, etc., which were found at the time and place where
the defendants were gambling, had actually been used in
connection with the prohibited game.
5. The fiscal evidently presented them as evidence, simply for the
purpose of corroborating the statements of the witnesses who
positively swore that they had seen defendants Lopez and
Rafael gambling.
6. All of said exhibits might well be eliminated from the record without
affecting the positive and direct proof presented at the trial,
showing that the defendants had, beyond a reasonable doubt,
been engaged in playing the prohibited game of ​monte​.
7. Thus, SC believes that even though it be admitted that said
exhibits were inadmissible in evidence, the fact that they were
admitted in no way prejudiced the defendants Lopez & Rafael.
8. Also, it is generally true that persons who play the game of ​monte
play for money. Yet, the use of money in the game is not a
necessary element in the crime described or defined by the law.
9. Thus, it seems that the purpose of the law was to prohibit
absolutely the game of ​monte in the Philippine Islands. The mere
fact that money was or was not used in no way constitutes an
element of the crime.​|||
United States v. Samaniego, 16 Phil. 663
Facts:
● Samaniego was charged with adultery and violation of Art. 441
of the RPC for having sexual intercourse with Juana Benedicto
de Perez, a married woman
● The prosecution alleged that Samaniego and Juana, despite
Juana’s status as a married woman, willfully, illegally, and
criminally and scandalously habitually appeared together in
public places and frequented places of recreation, suspicious
places, vacant houses, and houses of bad repute during both
daytime and night time
● They also embraced each other in Juana and her husband’s
conjugal home in the presence of her family and servants
● In attempting to prove the adultery, the prosecution presented
the following witnesses (here are the acts they were caught
doing in case sir wants specifics):
○ Conchita, Juana’s daughter, said her mother and
Samaniego met each other at a dance they all attended
■ She saw Samaniego at their house standing
near the cochero’s (carriage driver’s) bed
during nighttime
■ She saw her mother approach him and she
screamed, which made everyone in the house
go to where she was . She told them there was
a stranger in the house
■ Everybody then saw Samaniego and Juana
together in their night clothes
○ The cochero said she saw Samaniego near his bed and
they talked for a while but after the cochero fell asleep,
he was awoken by Conchita’s scream and when he
went to check on her, he saw Samaniego hiding in the
kitchen and Juana rushing up the stairs
○ Caridad, Juana’s other daughter, said that when
Conchita screamed, she saw Samaniego dressed only
in drawers. Her mother blew him a kiss and told him
to leave the house.
■ She also said she would see Samaniego talking
to her mother from the window of their house
sometimes and would see them walking and
talking in public together (e.g. in the Botanical
Garden)
○ Avesilla said that Juana and Samaniego frequently ate
at the restaurant where she was a cashier
○ Cochero also said that he waited for Juana and
Samaniego when they went to a house in Calle
 Malacañang. The houses were neither empty nor of
ill-repute
Issue: ​WON Samaniego and Juana were liable for violating Art. 441
Held: ​No.
● acts complained of lack many of the elements essential to bring
them within the purview of the article of the Penal Code
invoked by the prosecution
● Every act that was in anywise public fails entirely of those
qualities which offend modesty and good morals by "grievous
scandal or enormity."
● Samaniego and Juana did not do anything scandalous in public
with the intention of causing grievous scandal
○ In fact, they were trying to be discreet about it
○ They were caught by Juana’s family in her house, a
PRIVATE place
○ Also, when they were seen together in public, they
didn’t do anything indecent - they were just walking or
talking together
● Accused are not liable because they did not do anything
scandalous in a public place
United States v. Catajay, 6 Phil. 399
FACTS:
ISSUES: ​WON the circumstances of the case constitute a commision of
the crime defined in Art. 441 of the Penal Code ​(Grave Scandal)
RELATED PROVISION: ​ART. 200, GRAVE SCANDAL
DOCTRINE:
THE ACT MUST BE PERFORMED IN A PUBLIC PLACE OR WITHIN
THE PUBLIC KNOWLEDGE OR VIEW
As a condition precedent for the existence of this crime, the offense
against decency and good customs must have been made public; if
offense does not have this element, it is clear that it does not produce
the grave scandal required by the article
WHEN THE ACTS WERE PERFORMED IN A PRIVATE HOUSE AND
SEEN BY ONE PERSON, THE CRIME IS NOT COMMITTED
If committed at night, and in a private house, and at a time when no
one was present except the accused - the mistress of the house, and
one servant, these circumstances do not constitute the degree of
publicity which is an essential element of a crime
RECIT READY:
Act complained of was committed ​at night, ​in a ​private house, ​and at a
time when no one was present except the accused, the mistress of
the house, and one servant, these circumstances do not constitute the
degree ​of publicity which is an essential element of the crime.
Instead, the law violated was Art. 571 of the penal code.
● Trial court – found accused guilty of the crime of public scandal
(Art. 441 of Penal Code;​ this is a 1906 case​)
● Acts complained of were committed at
○ Night
○ In a private house
○ And at a time when no one was present ​except ​the
accused, the mistress of the house, and one servant
HELD: ​NO. The act must be performed in a public place or within the
public knowledge or view
● Court ruled that the circumstances do not constitute that
degree of publicity which is an essential element of the crime
defined and penalized in Art. 441 of the Penal Code
● Instead, accused committed the offense defined and penalized
in No. 2 of the Art. 571 of the Penal Code
“Those who, by exhibiting prints or engravings, or by
means of other acts, shall offend against good morals
and custom without committing a crime”
● According to Reyes
The crime penalized by this article consists of acts
which are offensive to decency and good customs which,
having been committed publicly, have given rise to public
scandals to persons who have incidentally witnessed the same.
Even if the article does not so express, it is evident that as a
condition precedent for the existence of this crime, the offense
against decency and good customs must have been made
public; if the offense does not have this element, it is clear that
it does not produce the grave scandal required by the article.
DISSENTING OPINION (TORRES, J)
JUDGEMENT APPEALED SHOULD BE AFFIRMED
Granting that the facts of the case have been proved and not being
possible to convict the accused of the crime of attempted rape, or at
least of that of "abusos deshonestos," as defined in article 439 of the
Penal Code, owing to the improper qualification set forth in the
complaint, in the judgment of the undersigned, and taking into
consideration the fact that the ​act offended against good morals and
customs, public and private, and not only the companion of the
injured party in the house but also her neighbors were informed
and had notice of the act, because the attempt was publicity mad​e
People v. Go Pin, 97 Phil. 418
PEOPLE v. GO PIN
Aug. 8, 1955
Jyn E. Aragon
DOCTRINE: Paintings and pictures of women in the nude, including
sculptures of that kind are offensive to morals where they are made
and shown not for the sake of art but rather for commercial purposes,
that is, when gain and profit would appear to be the main, if not the
exclusive consideration in their exhibition, and the cause of art only of
secondary or minor importance.
RECIT-READY: ​Go Pin is an alien and a Chinese citizen who 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. The Court
held that Go Pin is guilty of violation of Art. 201 of RPC (Immoral
doctrines, obscene publications and exhibitions and indecent shows)
because the films show pictures offensive to morals, where these are
shown not for the sake of art, but for commercial purposes so that gain
and profit would appear to be the main reason for showing scenes with
slight degree of obscenity, indecency and immorality in them
FACTS:
1.) Go Pin is an alien and a Chinese citizen who 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.
2.) Go Pin initially pleaded not guilty of the information but later plead
guilty.
3.) Even with the plea of guilty, RTC evaluated the films again and noted
only a slight degree of obscenity, indecency and immorality in them.
4.) RTC sentenced Go Pin to both an imprisonment and a fine.
* 6 months and 1 day of prisión correcional
* fine of P300, with subsidiary imprisonment in case of
insolvency, and to pay the costs.
5.) Go Pin appealed contending the following:
a.) With only a slight degree of obscenity, indecency and immorality
noted by the court in the films, the prison sentence should be
eliminated from the penalty imposed.
b.) 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.
ISSUE: 1. Whether or not Go Pin is guilty of ​Art. 201
(Immoral doctrines, obscene publications and exhibitions and
indecent shows). YES.
2. Whether or not Go Pin should be suffer the penalty
of imprisonment aside from paying fines.​ YES.
Art. 201. ​Immoral doctrines, obscene publications and exhibitions and
indecent shows​. ​— The penalty of prision mayor or a fine ranging from six
thousand to twelve thousand pesos, or both such imprisonment and fine, shall
be imposed upon:
(1) Those who shall publicly expound or proclaim doctrines
openly contrary to public morals;
(2) (a) the authors of obscene literature, published with their knowledge
in any form; the editors publishing such literature; and the owners/operators
of the establishment selling the same;
​(b) Those who, in theaters, fairs, cinematographs or any other
place, exhibit, indecent or immoral plays, scenes, acts or shows, whether
live or in film, which are prescribed by virtue hereof, shall include those
which (1) glorify criminals or condone crimes; (2) serve no other purpose
but to satisfy the market for violence, lust or pornography; (3) offend any
race or religion; (4) tend to abet traffic in and use of prohibited drugs; and
(5) are contrary to law, public order, morals, and good customs,
established policies, lawful orders, decrees and edicts;
(3) Those who shall sell, give away or exhibit films, prints,
engravings, sculpture or literature which are offensive to morals. (As amended
by PD Nos. 960 and 969).
1. 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 ● Accused in this case is dedicated to the sale of human flesh and
the ill and perverting effects of these pictures. thus is considered a lewd and dissolute person. Moreover, he is
a keeper of a place that has been proven to be a house of ill
2. Considering that the accused Go Pin is an alien who is fame.
supposed to maintain a high degree of morality while he is in the
Philippines", and "considering that he engaged in a very nefarious United States v. Cruz, 38 Phil. 677
trade, which degenerates the moral character of the youth, who are
usually the regular customers of his trade", the Court held that FACTS:
appellant be sentenced to 6 months and 1 day of ​prisión correcional in
● Giner Cruz, a cochero, solicited an American soldier to go with
addition to P300 fine. This was imposed notwithstanding that the
him in his rig to find a woman of loose morals.
pictures were not so obscence, indecent and immoral but only slightly
● He secured Deliah for the soldier. Although this fact was only
so. The penalty imposed by the trial court is within the range provided
shown by the testimony of one to support a judgment of conviction
by Article 201 of the Revised Code.
if, as in this instance, it satisfies beyond a reasonable doubt.
● Section 733 of the Revised Ordinances in Manila enumerated 11
classes of individuals who are deemed vagrants. It includes people
who act as a pimp or procurer. It is defined by “one who provides
People v. Mirabien, 50 Phil. 499
gratification for the lust of others; a procurer; a panderer”
FACTS
● The clause in question standing alone within semicolons, it is not
● Joaquin Mirabien was the proprietor of a bar and restaurant
essential, in order to convict one of vagrancy because a pimp or
called New Bohemian Refreshment.
procurer, that this person have no visible means of support or be an
● When the place was raided by the Constabulary it was found
agent for a keeper of a house or prostitution, etc.
that it was a house of prostitution and the restaurant was
merely a means by which the exploitation of women could be ISSUE: W/N a pimp or procurer should have no visible means of support in
carried on. order to be convicted of vagrancy
● CFI Manila convicted him of a violation of the Vagrancy Law.
Held: Judgment AFFIRMED
ISSUE: WON the keeper of a house of prostitution may be punished
● The SC compared section 733 and the corresponding section of the
preceding Revised Ordinances. They found that the phrase “acts as
HELD: YES
pimp or procurer” was not found in old ordinances.
● Act No. 519, Vagrancy Law, is sufficiently broad to cover the
● Since the legislative body of Manila included it, it must have been
case at bar. The law enumerates as one class included in the
done with a purpose, which is to stop vile traffic in human flesh.
term vagrant every “lewd or dissolute person who lives in and
about houses of ill fame.”
United States v. Molina, 23 Phil. 471

FACTS:
● Valeriano Molina was discharged from Bilibid Prison some
time during March 1910, after serving a short sentence for a
violation of the Opium Law.
● From the time of his release until the date of his prosecution on
this charge of vagrancy, he had been engaged in no legal
occupation and was without any apparent means of support
other than that supplied him by his mother.
● Molina is an able-bodied man of 33 years of age
○ He habitually neglected to apply himself to any lawful
calling, and that he spent his time in loitering about
the streets and frequanting cockpits and places where
games of various kinds were conducted and where
gambling was carried on.
● Molina testified that he was supported by his mother. But the
evidence shows that his mother is a woman of very small
means, and that if she has any property at all, it is so small as to
be wholly inadequate to furnish even a pretence of work of an
able-bodied man.
● Molina in explaining where he got the money to bet at the
cockpits, claimed that on various occasions his mother
gave him small sums for that purpose and that when he
won he brought her the proceeds.
ISSUE:
Whether or not Molina is liable for the crime of vagrancy.
RULING: YES
● The Court opines that Molina was an idle, shiftless and
worthless man who made no attempt to follow any legal calling
and whose habits of life were those of an immoral and
dissolute good for nothing.
● In ​vagrancy​, the ​offense consists of general worthlessness;
that is to say, in being idle, and though able to work
refusing to do so, and living without labor, or on the
charity of others.
● This definition of the offense corresponds with the definition of
that class of vagrancy set forth in Section 1 of the Philippine
Vagrancy Act (Act No. 519) which states that:
"Every person having no apparent means of subsistence, who
has the physical ability to work, and who neglects to apply
himself or herself to some lawful calling . . . is a vagrant."
● The Court did not accept the claim of Molina that he was living
on the charity of his mother because of the other evidence
which discloses that he had no apparent means of support.
○ On the contrary, it was Molina’s duty to aid his mother
rather than to call upon her for aid.
● We are of opinion that one who makes no pretense to follow
any lawful calling or occupation, who makes no effort to
support himself, whose time is spent in loitering and
wandering about the streets and in frequenting cockpits and
other places where gambling is carried on, cannot be said to
have any apparent, visible, self-evident or manifest means of
support, despite his claim that he is living upon the charity of
his mother,