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

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  oflcio, 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 correctional, 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 imperson 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 build- ing 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  or 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 Pajardo 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  correctional 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.