PEOPLE V.

KOTTINGER

OCTOBER 29, 1923

NATURE: Appeal from a judgment of the Court of First Instance

FACTS:

On Nov. 24, 1922, detective Juan Tolentino raided the Camera Supply Co. wherein he

found and confiscated post cards which were subsequently used as evidence against the

manager J.J. Kottinger

The information against Kottinger charged him of having kept for sale in the store of
the Camera Supply Co., obscene and indecent pictures in violation of section 12 of Act no.
277 also known as the Philippine Libel Law

The Philippine Libel Law provides:

“Any person who writes, composes…sells or keeps for sale, distributes or exhibits any
obscene or indecent writing, paper, book or other matter, or who designs, copies…or
otherwise prepares any obscene picture or print,…shall be guilty of a misdemeanor and
punished…”

The pictures that were confiscated showed different Filipina women in their

traditional, native costumes

The prosecution produced no evidence, other than the postcards, to which the

fiscal admitted that these “pictures represented the natives in their native dress.

For the defendant, a U.P. professor testified that none of the poses in the pictures
were not something he had never observed when conducting studies, and that the costumes
worn were really the true costumes regularly worn by them

The trial court found Kottinger guilty and sentenced him to pay a fine of P50 with

subsidiary imprisonment in case of insolvency.

ISSUE:

Does the act defendant is charged with fall within the purview of Section 12 of the

Philippine Libel Law?

Do pictures portraying the inhabitants of the country in their native dress and as they

appear and can be seen in the regions which they live considered obscene and indecent?

HELD:

Yes, the act charged falls within the acts enumerated in Section 12.

No, the pictures are neither indecent nor obscene.

REASONING:

The act charged in the information is covered in the enumeration of Section 12 of the

Philippine Libel Law

The inclusion of the term “or other matter” serves as a catch all phrase that, while

limited to that which is the same kind as its antecedent, is also intended to cover kindred
subjects.

Even if the phrase “or other matter”be construed as “r other matter of like kind
”

the pictures and postcards are not so far unrelated from to writings, papers, books as not
to be covered by the general words.

Even if Section 12 is inapplicable, there are still other applicable articles from the

Penal Code and Revised Ordinances of the City of Manila

The pictures portraying the inhabitants of the country in their native dress and as they

appear can be seen in the regions in which they live, are not obscene or indecent within

the meaning of the Libel Law.

The word “obscene”and the term “obscenity”defined as meaning something offensive

to chastity, decency or delicacy.

“indecency”is an act against good behavior and a just delicacy.

The test ordinarily followed by the courts in determining whether something is

obscene is:

Whether the tendency of the matter charged as obscene is to deprave or

corrupt those whose minds are open to such immoral influences.

Another test is that which shocks the ordinary and common sense of men as

an indecency. Philippine statute does not attempt to define the terms obscene or indecent
pictures, writings, papers or books. But the words “obscene or indecent”are descriptive

enough and are words that are in common use and understood by any person of

average intelligence.

Whether a picture is obscene or indecent depends on the circumstances.

“obscene”as used in US Federal Statutes signifies that form of immorality which

has relation to sexual impurity.

In a US case the test of obscenity was stated as thus:

“here the tendency of the matter charged as obscene is to deprave and corrupt those whose
minds are open to such immoral influences,…and where it would suggest to the minds of the
young…thought of the most impure and libidinous character.” Judge Thayer in a US case
stated in talking about the test of obscenity:

“…rather the test, is what is the judgment of the aggregate \e sense of the

community reached by it? What is its probable, reasonable effect on the

decency, purity and chastity of society…”

There are in the US in circulation, as well as other countries, illustrations similar

to the questioned photographs in this case and also publications of the Philippine
Government that have similar illustrations.

A National Standard has been set up by the US Congress, and tested by this standard,
it would be extremely doubtful that the pictures challenged would be held obscene or indecent
in the Federal Courts.

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 would not be shocked by photographs
of this type.

The post-cards cannot be characterized as filthy, foul or offensive to chastity.