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1 101 Phil 749-755

Separate
Decision Synopsis Syllabus Cited-In
Opinions

EN BANC

[G.R. No. L-7295. June 28, 1957.]

THE PEOPLE OF THE PHILIPPINES,

plaintiff-appellee, vs. MARINA PADAN Y
ALOVA, COSME ESPINOSA, ERNESTO
REYES and JOSE FAJARDO, defendants.
MARINA PADAN Y ALOVA and JOSE
FAJARDO, defendants-appellants.

Augusto Revilla for appellant Jose Fajardo.

W.M. Bayhon for appellant Marina Padan y Alova.

Solicitor General Ambrosio Padilla and Solicitor

Jose P. Alejandro for appellee.

SYLLABUS

1. CRIMINAL LAW; OFFENSE AGAINST

MORALS AND DECENCY; CLAIM OF ART. — The
Supreme Court has had occasion to consider offenses
like the exhibition of still or moving pictures of women in
the nude, which it condemned for obscenity and 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 features. 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 especially on the youth of
the land. Considering the seriousness of the crime, the
relatively severe penalty imposed by the trial court is
proper.

DECISION

MONTEMAYOR, J : p

In the Court of First Instance of Manila, Marina

Padan, Jose Fajardo y Garcia, Cosme Espinosa, and
Ernesto Reyes were charged with a violation of Article
201 of the Revised Penal Code, said to have been
committed as follows:

That on or about the 13th day of

September, 1953, in the city of Manila,
Philippines, the said accused conspiring
and confederating together and mutually
helping one another, did then and there
willfully, unlawfully and feloniously exhibit
or cause to be exhibited inside a building at
the corner of Camba Ext. and Morga Ext.,
Tondo, this City, immoral scenes and acts,
 to wit: the said accused Jose Fajador y
Garcia, being then the manager and
Ernesto Reyes y Yabut, as ticket collector
and or exhibitor, willfully, unlawfully and
feloniously hired their co-accused Marina
Palan y Alova and Cosme Espinosa y
Abordo to act as performers or
exhibitionists to perform and in fact
performed sexual intercourse in the
presence of many spectators, thereby
exhibiting or performing highly immoral and
indecent acts or shows thereat."

Upon arraignment, all pleaded not guilty. Later,

however, Marina Padan, with the assistance of her
counsel de parte and counsel de oficio, asked for
permission to withdraw her former plea of not guilty,
which was granted, and upon rearraignment, she pleaded
guilty to the charge. In a decision dated October 12,
1953, Marina Padan was found guilty as charged and
sentenced to six months and one day of prision
correccional and a fine of P200, with subsidiary
imprisonment in case of insolvency, not to exceed one-
third of the principal penalty, with the accessory penalties
prescribed by the law, and to pay the proportionate costs.
After trial of the three remaining accused, they were all
found guilty; Cosme Espinosa and Ernesto Reyes were
sentenced each to not less than six months and one day
of prision correccional and not more than one year, one
month and eleven days of prision correccional, to pay a
fine of P500, with subsidiary imprisonment in case of
insolvency, not to exceed one-third of the principal
penalty, and to pay the proportionate costs. Jose Fajardo
was sentenced to not less than one year, one month and
ten days of prision correccional and not more than one
year eight months and twenty days, also of prision
correccional, to pay a fine of P1,000, with subsidiary
imprisonment in case of insolvency, not to exceed one-
third of the principal penalty and to pay the proportionate
costs. The army steel bed, the army woolen blanket, the
pillow, the ladies' panties, and the men's underwear,
described in Exhibit C, were declared confiscated.

The four accused appealed in the decision, the

appeal having been sent to us. Appellants Espinosa and
Reyes failed to file their briefs within the period
prescribed by law and their appeal was dismissed by
resolution of this Court of November 25, 1955, and the
decision as to them became final and executory on
January 7, 1956, as appears from the entry of judgment.

Because of her plea of guilty in the lower court,

appellant Marina in her appeal does not question her
conviction; she merely urges the reduction of the penalty
by eliminating the prison sentence. We do not feel
warranted in interfering with the exercise of discretion in
this matter, made by the lower court presided by Judge
Magno S. Gatmaitan. According to his decision of
October 12, 1953, in imposing the sentence, he already
considered Marina's plea of leniency, and so despite the
recommendation of the fiscal that she be fined P600.00 in
addition to the prison sentence of six months and one
day, his honor reduced the fine to only P200.

We believe that the penalty imposed fits the crime,

considering its seriousness. As far as we know, this is the
first time that the courts in this jurisdiction, at least this
Tribunal, have been called upon to take cognizance of an
offense against morals and decency of this kind. 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. We repeat that because of all this, the penalty
imposed by the trial court on Marina, despite her plea of
guilty, is neither excessive nor unreasonable.

Going to the appeal of Jose Fajardo y Garcia,

while he does not deny the fact of the commission of the
offense charged, he insists that he was not the manager
or the person incharge of the show or proceedings on the
night of September 13, 1953; that his participation, if he
participated at all, was to play the role of an innocent
bystander, but that because of his popularity in the
neighborhood, being popularly known as a "siga-siga"
character, he was requested by the spectators to select
the man and the woman to engage or indulge in the
actual act of coitus before the spectators; that after
making the selection, he did not even care to witness the
act but left the scene and returned to it only when he
heard a commotion produced by the raid conducted by
the police.

The evidence on his active participation and that

he was the manager and one in charge of the show is
however ample, even conclusive. We have carefully
examined such evidence, and we are satisfied that they
fully support the findings of the trial court. Such facts may
be briefly stated as follows: At the corner of Morga
Extension and Camba Extension, Tondo, Manila, was a
one story building which judging from the picture
exhibited is nothing but a shed, with a floor space of eight
by fifteen meters which was mainly used for playing ping-
pong. A ping-pong table must have been placed in the
center and on two sides were built benches in tiers, so
that the spectators seated on them could look down and
see the game. On September 13, 1953, however, the
building was used for a different purpose. It was to be the
scene of what was said to be an exhibition of human
"fighting fish", the actual act of coitus of copulation. It
must have been advertised by word of mouth; tickets
therefor were sold at P3 each, and the show was
supposed to begin at 8:00 o'clock in the evening. About
that time of the night, there was already a crowd around
the building, but the people were not admitted into it until
about an hour later, and the show did not begin until
about 9:15. The Manila Police Department must have
gotten wind of the affair; it bought tickets and provided
several of its members who later attended the show, but
in plain clothes, and after the show conducted a raid and
made arrests. At the trial, said policemen testified as to
what actually took place inside the building. About two
civilians who attended the affair gave testimony as to
what they saw.

The customers not provided with tickets actually

paid P3 at the entrance to defendant Ernesto Reyes. He
also collected tickets. In all, there were about ninety
paying customers, while about sixteen were allowed to
enter free, presumably friends of the management. Jose
Fajardo y Garcia was clearly the manager of the show.
He was at the door to see to it that the customers either
were provided with tickets or paid P3.00 entrance fee. He
even asked them from whom they had bought the tickets.
He ordered that an army steel bed be placed at the
center of the floor, covered with an army blanket and
provided with a pillow. Once the spectators, about 106 in
number, were crowded inside that small building, the
show started. Fajardo evidently to arouse more interest
among the customers, asked them to select among two
girls present who was to be one of the principal actors. By
pointing to or holding his hand over the head of each of
the two women one after the other, and judging by the
shouts of approval emitted by the spectators, he decided
that defendant Marina Padan was the subject of popular
approval, and he selected her. After her selection, the
other woman named Concha, left. Without much ado,
Fajardo selected Cosme Espinosa to be Marina's partner.
Thereafter, Cosme and Marina proceeded to disrobe
while standing around the bed. When completely naked,
they turned around to exhibit their bodies to the
spectators. Then they indulged in lascivious acts,
consisting of petting, kissing, and touching the private
parts of each other. When sufficiently aroused, they lay
on the bed and proceeded to consummate the act of
coitus in three different positions which we deem
unnecessary to describe. The four or five witnesses who
testified for the Government when asked about their
reaction to what they saw, frankly admitted that they were
excited beyond description. Then the police who were
among the spectators and who were previously provided
with a search warrant made the raid, arrested the four
defendants herein, and took pictures of Marina and
Cosme still naked and of the army bed, which pictures
were presented as exhibits during the trial.

From all this, there can be no doubt that Jose

Fajardo y Garcia contrary to what he claims, was the
person in charge of the show. Besides, as found by the
trial court and as shown by some of the tickets collected
from the spectators, submitted as exhibits, said tickets
while bearing on one side printed matter regarding an
excursion to Balara to be held on August 30, 1953, from
7:00 a.m. to 5:00 p.m., sponsored by a certain club, on
the other side appears the following typewritten form,
reading:

"P3.00 Admit one

PLEASURE SHOW

Place: P. Morga Ext. and

Camba Ext.
Time: 8:00 o'clock sharp",

and superimposed on the same is the rubber

stamped name "Pepe Fajardo," which defendant Fajardo
admits to be his name. Considering all the above
circumstances, we agree with the trial court that Jose
Fajardo is the most guilty of the four, for he was the one
who conducted the show and presumably derived the
most profit or gain from the same.

As regards the penalty imposed by the trial court

on appellant Fajardo, we agree with the Solicitor General
that the same is correct, except the minimum thereof
which is beyond the legal range, and which should be
 reduced from one year, one month, and ten days of
prision correccional to only six months of arresto mayor.

With the modification above-mentioned, the

decision appealed from by Marina Padan and Jose
Fajardo are hereby affirmed, with costs against both.

Paras, C.J., Padilla, Reyes, A., Bautista Angelo,

Labrador, Concepcion, Reyes, J.B.L., Endencia and
Felix, JJ., concur.

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