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El Debate v. Topacio, 44 Phil. 280
DOCTRIN TRINE: E: Thre Three e elem lements ents of a lott lotter ery y: cons consid ide erati ratio on, pri prize, ze, chance. FACTS: ● El Debate, a newspaper of Manila, announced its two guessing contests: ● Votes otes for for any of the the winni innin ng cand andida idates tes for for Carniv rnival al Queen either in the provinces or in Manila. ● Votes that the Queen elect will receive for the Carnival queenship. ● To be abl able to part partic iciipat pate, one one would ould have ave topayin adva advanc nce e the amount of the subscription of a quarter which is equivalent to one coupon for each contest: ● one quarter = one coupon for each contest; up to four quarters (1 year) = four coupons for each. ● Direc rector tor of Post Posts s Jos Jose Topa Topac cio, io, foll ollowin owing g the the advi dvice of the the Atty. General refused to admit and disseminate the issues cont contai aini ning ng this this adve advert rtis isem emen entt beca becaus use e it was was nonnon-ma mail ilab able le matter according to the Administrative Code. ● Sec. 1954 (a) states that non-mailable matter includes, “Writ Writtten or prin rinted ted matt atter … conce oncern rnin ing g any any lott ottery, ery, gift gift ente enterp rpri rise se,, or simi simila larr sche scheme me depe depend ndin ing g in whol whole e or in part part upon lot or chance…” ● According to American Jurisprudence, the term “lottery” incl includ udes es all all sche scheme mes s for for the the dist distri ribu buti tion on of priz prizes es by chan chance ce policy policy playin playing, g, gift gift exhibi exhibitio tions, ns, prize prize concer concerts, ts, raffle raffles s at fairs, fairs, etc, and various forms of gambling. ● There are three essential elements of a lottery: (a) consideration, (b) prize, and (c) chance. ● El Debate argues that only the element of prize is present, but consideration and chance are not.
ISSU ISSUE: E: W/N W/N El Deba Debate te’s ’s cont contes ests ts was was a lott lotter ery, y, gift gift ente enterp rpri rise se,, or similar scheme depending in whole or in part upon chance? - YES HELD ●
The case of Hudelson Hudelson,, for for the the firs firstt tim time, sta stated ted that hat thou hough the the num number ber of bea beans in con contai tainer ner for for a gue guessin ssing g cont conte est is defi defini nite te,, the the asce ascert rtai ainm nmen entt of that that numb number er coul could d be noth nothin ing g more ore tha than a mere mere gue guess bec becaus ause it was impo impos ssibl sible e und under the the circ ircums umstanc tance es to ensur nsure e the the info inform rmat atiion for for a corr correc ectt estimate. Therefore, it is a game of chance. Clea Clearl rly, y, the the esti estima mate tes s for for the the El Deba Debate te cont contes estt stil stilll depe depend nds s part partly ly on chan chanc ce even even if ther there e is also lso a fac factor tor of int intell ellige igent calc alcula ulatio tion. The res result ults for for who who will will win the the elec lectio tions are are affected by so many factors and there is no way that the part partic icip ipan ants ts in the the gues guessi sing ng cont contes estt will will have have cont contro roll over over them. Thus, the element of chance is present. For For the the elem elemen entt of cons consid ider erat atio ion, n, the the peti petiti tion oner er argu argues es that that it is only a gratuitous property by chance. They They are are sayi saying ng that that the the pers person on who who pays pays the the subs subscr crip ipti tion on in adva advanc nce e gets ets the ful full valu value e of his his mone money y bec becaus ause he gets ets the newspapers anyway. The Court says that though this may be true for the people who really subscribe to the paper, this is not true for the peop people le who who may may subs subscr crib ibe e mere merely ly to win win a priz prize. e. Ther Theref efor ore, e, the element of consideration is also present.
United States v. Hilario, 24 Phil. 392 FACTS:
Isidro Hilario was charged with violation of Section 621 of Revised Ordinances of that City.
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 guiltyof violation of Sec. 621, Revised Ordinances by permitting the playing a game called nones y pares for money and things of value.
(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
The ordinance in question reads: ● SEC. 621. Gambling devices, maintenance of. — No p erson sh all set u p, ke ep , o r m ai nta in , o r p er mi t t o b e s et u p, k ep t, o r m ai nta in ed , o n a ny p re mi se s occupied or controlled by him, any tableor other instrument or device for the purpose of gaming or gambling, or with which money, liquor, or anything of value shall inany 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 restrictedto gamesof chance, luck, or hazard but may include those in which some element of skill affects the result ■ But itis not dependent wholly orchieflyupon 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 ofgambling 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, therewas nowhere alleged that nonesy pares is a gambling game, nor can this be inferred from the allegations in the complaint.
United States v. Rafael, 23 Phil. 184
charged with violation of Act. No. 1757 which prohibits the playing of the gambling game “Monte.” 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. Only Lopez and V. Rafael appealed.
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 wayconstitutes an element of the crime.||| FACTS:
Defendants, Cayetano Rafael, Perseveranda Lopez, Victor Discipulo, Victoriano Rafael, and Guillermo Juanesa, were
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): ○ Conchit a, Juana’s daught er, said her mot her 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 toldthem 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 hidingin the kitchen and Juana rushing up the stairs ○ Caridad, Juana’s ot her daug hter, 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 shewould seeSamaniego 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 essentialto 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 scandalousin 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 bec ause they did no t do anything scandalous in a public place United States v. Catajay, 6 Phil. 399
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 isclear 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 timewhen 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, andata 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 essent ial element of the crime. Instead, the law violated was Art. 571 of the penal c ode.
FACTS: ● Trial court – found accused guiltyof the crime of publicscandal (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 ISSUES: WON the circumstances of the case constitute a commision of the crime defined in Art. 441 of the Penal Code (Grave Scandal)
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 of fensive to dec ency and good customs which, having been committed publicly, have given rise to public scandals to persons who have incidentally witnessedthe 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 Co de, owing t o the impro per qualification set fo rth in the complaint, in t he judgment o f the undersigned, and taking int o 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 GlobeArcade, a recreation center, a large number of one-real 16-millimeter films about 100feet in length each, which are allegedly indecent and/or immoral. The Court held that Go Pin is guilty of vio lation 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 forcommercial purposes so that gain and profit would appear to be the main reason forshowing scenes with slight degree of obscenity, indecency and immorality in them
FACTS: 1.) Go Pin is an alien and a Chinese citizen who was c harged 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:
thousand to twelve thousand pesos, or both such imprisonment andfine,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, publishedwith their knowledge
in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; (b)Thosewho,in theaters,fairs, cinematographs or anyother 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 criminalsor condone crimes; (2)serve no other purpose but to satisfy the market forviolence, lust or pornography; (3)offend any race or religion;(4) tend to abet traffic in anduse of prohibited drugs;and (5) are contrary to law, public order, morals, and good customs,
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.
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 tomorals. (Asamended by PD Nos. 960 and 969).
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 c ommitted. 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. — Th e pe na lty of p ri si on m ayo r or a fi ne r an gi ng f rom s ix
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 thecause of artwas of secondaryor 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, andlust, 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. Considering that the accused Go Pin is an alien who is 2. supposed t o 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 the youth, who are usually t he regular customers o f his trade", the Court held that appellant be sentenced to 6 months and 1 day of prisión correcional in addition to P300 fine. This was imposed notwithstanding that the pictures were not so obscence, indecent and immoral but only slightly so. The penalty imposed by the trial court iswithin the range provided by Article 201 of the Revised Code.
United States v. Cruz, 38 Phil. 677 FACTS:
● People v. Mirabien, 50 Phil. 499 FACTS ● Joaquin Mirabien was the proprietor of a bar and restaurant called New Bohemian Refreshment. ● When the place was raided by the Constabulary it was found that it w as a house of prostitution and t he restaurant was merely a means by which the exploitation of women could be carried on. ● CFI Manila convicted him of a violation of the Vagrancy Law.
Accused in this caseis dedicated to the sale of human flesh and thus is considered a lewd anddissolute person. Moreover,he is a keeper of a place t hat has been pro ven to be a ho use of ill fame.
Giner Cruz, a cochero, solicited an American soldier to go with him in his rig to find a woman of loose morals. He secured Deliah for the soldier. Although this fact was only shown by the testimony of one to support a judgment of conviction 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 gratification for the lust of others; a procurer; a panderer” The clause in question standing alone within semicolons, it is not essential, in order to convict one of vagrancy because a pimp or procurer, that this person have no visible means of support or be an agent for a keeper of a house or prostitution, etc.
ISSUE: W/N a pimp or procurer should have no visible means of support in order to be convicted of vagrancy Held: Judgment AFFIRMED
ISSUE: WON the keeper of a house of prostitution may be punished HELD: YES ● Act No. 519, Vagrancy Law, is sufficiently broad to cover the case at bar. The law enumerates as one class included in the term vagrant every “lewd or dissolute person who lives in and about houses of ill fame.”
The SC compared section 733 and the corresponding section of the preceding Revised Ordinances. They found that the phrase “acts as pimp or procurer” was not found in old ordinances. Since the legislative body of Manila included it, it must have been done with a purpose, which is to stop vile traffic in human flesh.
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 timeof 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 t hat his mo ther 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 manwho 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 offensecorrespondswith 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 lawf ul calling or o ccupation, 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,