People vs. Kottinger DoP: 29 Oct 1923 Ponente: Malcolm Nature: Appeal from a judgment of the CFI of Manila Quick Summary: Pictures depicting native inhabitants in their native attire and in poses showing how they live in real life is not obscene or indecent.
Facts: On November 24, 1992 detective Juan Tolentino raided Camera Supply Co. located at 110 Escolta, Manila where he found and confiscated postcards depicting non-Christian inhabitants of the Philippines in their native attire and in poses showing how they live. The six pictures are as follows: Exhibit A A-1 A-2 A-3 A-4 A-5
Legend Philippines, Bontoc Woman. Greetings from the Philippines (depicting five young boys) Ifugao Belle, Philippines Igorrot Girl, Rice Field Costume. Kalinga Girls, Philippines. Moros, Philippines.
J.J. Kottinger, the manager of the company, was charged of having kept for sale in the store, obscene and indecent pictures in violation of section 12 of Act. No. 277 (The Philippine Libel Law). The prosecution produced no evidence proving the obscenity and indecency of the postcards as they believed the postcards themselves are the best evidence of that. Dr. H. Otley Beyer, a UP professor, and corroborated by other witnesses, testified that none of the pictures showed anything that he did not see on various occasions in his studies. 1
The defendant interposed a demurrer based upon the ground that the facts alleged therein do not constitute an offense and were not contrary to law. The trial court overruled the demurrer. The defendant was found guilty of the offense. The question was one of first impression not just in the Philippines, but also in the US, Great Britain and elsewhere, which is why the case was submitted en banc for decision. Issue: 1. (technical argument) WoN section 12 prohibits the taking, selling, and publishing of alleged obscene and indecent pictures and prints. 2. (decisive issue) WoN the 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 obscene or indecent.
1 an objection that an opponent's point is irrelevant or invalid, while granting the factual basis of the point
Held: The Court disagrees with the appellant on his technical argument but agrees with him on his main contention. 1. While 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, the information is not fatally defective and covers the alleged facts. Act. No. 277, section 12 states: “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, 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 1000 dollars or by imprisonment not exceeding one year, or both.” The law provides punishment for the sale or exhibition of any obscene/indecent writing, paper, book, or other matter. “Or other matter” is added as a catch-all phrase, intended to cover kindred subjects as its antecedent. The rule of ejusdem generis is not a universal rule, and should be applied in order to carry out the legislative intent. While it may be conceded that section 12 does not cover the present case, article 571, no. 2 of the Penal Code and section 730 of the Revised Ordinances of the City of Manila may be applied. Section 730 states that not person shall “exhibit, circulate, distribute, sell […] any lewd, indecent, or obscene book, picture […] or any other thing” 2. 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. Not one parallel case could be found, so the Court perforced reason from the general to the specific, from universal principle to actual fact. “Obscenity” is defined as something offensive to chastity, decency or delicacy. “Indecency” is an act against good behavior and a just delicacy. The test for obscenity 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 is whether or not it shocks the ordinary and common sense of men as an indecency. The Libel Law does not define what constitutes obscene or indecent writings, pictures, etc. but the words “obscenity” and “indecency” are themselves descriptive, words in common use and every person of average intelligence understands their meaning. Whether a picture is obscene/indecent must depend on the circumstances of the case.
The Court turned to Federal Laws prohibiting the use and importation of obscene materials into the Philippines in order to shed light on what constitutes as obscene or indecent. “Obscene” as used in the Federal statutes makes it a criminal offense to place in the mail any obscene, lewd, or lascivious publication, signifies that form of immorality which has relation to sexual impurity, has the same meaning given at common law in prosecutions for obscene libel. In the case of U.S. vs. Harmon (regarding a violation of the Postal Law), the Court held that the word “obscene”, in the absence of a definition in the statute, is presumed to be employed by the lawmaker in the ordinary sense of the word and cannot be said to have acquired any technical significance. A standard dictionary defines “obscene” as “offensive to chastity and decency; expressing or presenting to the mind or view something which delicacy, purity, and decency forbid to be exposed. ” In Rex vs. Hicklin, the Chief Justice said “The test of obscenity is this: […] and where it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of the most impure, causing lewd thoughts of an immoral tendency.” Laws of this character are made for society in the aggregate, and not in particular. So while there may be some individuals or societies whose moral sense would neither be depraved or offended, such cannot be allowed to be a standard which obscenity/indecency is to be tested. The test, rather, is what is the judgment of the aggregate sense of the community reached by it? What is the probable effect on the sense of decency, purity and chastity of society, extending to the family (the foundation of the state)? It appears that a national standard has been set up by the Congress of the US. There are copies of reputable magazines which circulate freely throughout the US and other countries and admitted in the Philippines which contain illustrations similar to the pictures in questions. Publications of the Philippine Government (“Ifugao Law”, “Philippine Journal of Science”, Reports of the Philippine Commission for 1903, 1912, 1913) have also been offered in evidence. 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. The Court is convinced the postcards cannot be characterized as offensive to chastity, or foul, or filthy. The Court notes the statement of the proprietor of the photos that he would on his own initiative place suitable and explicit inscriptions on the pictures so that no one may be misled and may even withdraw from sale certain pictures that may be offensive to the sensibilities of his customers.
Dispositive: Judgment reversed. Information is dismissed. Defendant-appellant is acquitted with all costs de oficio. Dissenting Opinion (Romualdez) While the pictures cannot strictly be termed obscene, they must be regarded as indecent. Such pictures offend modesty and refinement, and as such, is indecent. This is shown by common sense as no woman claiming to be decent would stand before the public in Manila (where the pictures where exhibited) in the same fashion as the pictures. In non-Christian regions, such pictures may not be offensive, but in Manila, where they were exhibited, they are. K.Manibog//A2015
