GAUDENCIO FERNANDO & RUDY ESTORNINOS v CA
consideration in their exhibition. The
RTC: Violation of Art. 201 and PD Nos. 960 and 969
SC: RTC ruling affirmed
FACTS:
 Acting on reports of sale and distribution of
pornographic materials, officers of the PNP-CIDG
NCR conducted police surveillance on the store
bearing the name of Gaudencio E. Fernando
Music Fair (Music Fair).
 Judge Perfecto Laguio of the RTC of Manila issued
a search warrant for violation of Article 201 of the
RPC against petitioner Gaudencio E. Fernando
and a certain Warren Tingchuy.
o The warrant ordered the search of
Gaudencio E. Fernando Music Fair at 564
Quezon Blvd., corner Zigay Street,
Quiapo, Manila, and the seizure of some
items
 On the same day, police officers of the PNP-CIDG
NCR served the warrant on Rudy Estorninos, who,
according to the prosecution, introduced himself
as the store attendant of Music Fair.
 The police searched the premises and
confiscated twenty-five (25) VHS tapes and ten
(10) different magazines, which they deemed
pornographic.
 Petitioners and Tingchuy were charged with
unlawfully, feloniously, publicly and jointly
exhibiting indecent or immoral acts, scenes or
shows at Music Fair, by then and there selling and
exhibiting obscene copies of x-rated VHS Tapes,
lewd films depicting men and women having
sexual intercourse, lewd photographs of nude
men and women in explicating positions which
acts serve no other purpose but to satisfy the
market for lust or pornography to public view.
RTC:
 Acquitted Tingchuy for lack of evidence to prove
his guilt
 Convicted herein petitioners of violation of Art. 201
and PD Nos. 960 and 969
 The VHS tapes and the nine (9) magazines utilized
as evidence in this case are hereby confiscated in
favor of the government as they are obscene
o Pictures of men and women in the nude
doing the sexual act appearing in the
nine (9) confiscated magazines namely
Dalaga, Penthouse, Swank, Erotic, Rave,
Playhouse, Gallery and two (2) issues of
QUI are offensive to morals and are made
and shown not for the sake of art but
rather for commercial purposes, that is
gain and profit as the exclusive
pictures in the magazine exhibited
indecent and immoral scenes and
acts…The exhibition of the sexual act in
their magazines is but a clear and
unmitigated obscenity, indecency and
an offense to public morals, inspiring…lust
and lewdness, exerting a corrupting
influence especially on the youth.
o The VHS tapes also [exhibit] nude men
and women doing the sexual intercourse.
The tape entitled "Kahit sa Pangarap
Lang" with Myra Manibog as the actress
shows the naked body of the actress. The
tape exhibited indecent and immoral
scenes and acts. Her dancing
movements excited the sexual instinct of
her male audience. The motive may be
innocent, but the performance was
revolting and shocking to good minds...
CA:
 Affirmed in toto RTC decision
CONTENTION OF THE PETITIONERS:
 Respondent court erred in convicting petitioner
Fernando even if he was not present at the time
of the raid
o Fernando contends that since he was not
charged as the owner of an
establishment selling obscene materials,
the prosecution must prove that he was
present during the raid and that he was
selling the said materials. Moreover, he
contends that the appellate court’s
reason for convicting him, on a
presumption of continuing ownership
shown by an expired mayor’s permit, has
no sufficient basis since the prosecution
failed to prove his ownership of the
establishment.
 Respondent erred in convicting petitioner
Estorninos who was not doing anything illegal at
the time of the raid.
o Estorninos, on the other hand, insists that
he was not an attendant in Music Fair, nor
did he introduce himself so.
 The prosecution failed to prove that at the time of
the search, they were selling pornographic
materials.
SOLICITOR GENERAL:
 counters that owners of establishments selling
obscene publications are expressly held liable
 under Article 201, and petitioner Fernando’s
ownership was sufficiently proven.
 As the owner, Fernando was naturally a seller of
the prohibited materials and liable under the
Information.
 Estorninos was identified by Barangay Chairperson
Socorro Lipana as the store attendant, thus he was
likewise liable.
SC:
 As obscenity is an unprotected speech which the
State has the right to regulate, the State in
pursuing its mandate to protect, as parens
patriae, the public from obscene, immoral and
indecent materials must justify the regulation or
limitation.
 One such regulation is Article 201 of the Revised
Penal Code. To be held liable, the prosecution
must prove that:
o (a) the materials, publication, picture or
literature are obscene;
o (b) the offender sold, exhibited, published
or gave away such materials.
 Necessarily, that the confiscated
materials are obscene must be
proved.
 There is no perfect definition of "obscenity" but the
latest word is that of Miller v. California which
established basic guidelines, to wit:
o (a) whether to the average person,
applying contemporary standards would
find the work, taken as a whole, appeals
to the prurient interest;
o (b) whether the work depicts or describes,
in a patently offensive way, sexual
conduct specifically defined by the
applicable state law; and
o (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or
scientific value.
 It would be a serious misreading of Miller to
conclude that the trier of facts has the unbridled
discretion in determining what is "patently
offensive."
 Obscenity is an issue proper for judicial
determination and should be treated on a case to
case basis and on the judge’s sound discretion.
 In this case, petitioners neither presented contrary
evidence nor questioned the trial court’s findings.
There is also no showing that the trial court, in
finding the materials obscene, was arbitrary.
ON FERNANDO NOT BEING PRESENT DURING RAID
 We emphasize that mere possession of obscene
materials, without intention to sell, exhibit, or give
them away, is not punishable under Article 201,
considering the purpose of the law is to prohibit
the dissemination of obscene materials to the
public.
 The offense in any of the forms under Article 201 is
committed only when there is publicity.
 The law does not require that a person be caught
in the act of selling, giving away or exhibiting
obscene materials to be liable, for as long as the
said materials are offered for sale, displayed or
exhibited to the public.
o In the present case, we find that
petitioners are engaged in selling and
exhibiting obscene materials.
 Notably, the subject premises of the search
warrant was the Gaudencio E. Fernando Music
Fair, named after petitioner Fernando. The
mayor’s permit was under his name. Even his bail
bond shows that he lives in the same place.
ON MAYOR’S PERMIT BEING EXPIRED
 The mayor’s permit dated August 8, 1996, shows
that he is the owner/operator of the store.
 While the mayor’s permit had already expired, it
does not negate the fact that Fernando owned
and operated the establishment.
o It would be absurd to make his failure to
renew his business permit and illegal
operation a shield from prosecution of an
unlawful act. Furthermore, when he
preferred not to present contrary
evidence, the things which he possessed
were presumptively his.
ON ESTORNINOS BEING THE STORE ATTENDANT
 Petitioner Estorninos is likewise liable as the store
attendant actively engaged in selling and
exhibiting the obscene materials.
 Prosecution witness Police Inspector Tababan,
who led the PNP-CIDG NCR that conducted the
search, identified him as the store attendant upon
whom the search warrant was served.
o Tababan had no motive for testifying
falsely against Estorninos and we uphold
the presumption of regularity in the
performance of his duties.
DECISION:
 Petitioners guilty of violation of Article 201
 RTC ruling affirmed
US v EUGENIO GACUTAN
CFI: Bribery under Articles 385 and 389 of the Penal Code
SC: Guilty of Bribery of Justice of the Peace under Article
382 of the Penal Code
FACTS:
 Domingo Pascua, on July 20, 1912, filed in
appellant Gacutan’s court, he being the justice of
the peace in and for the municipality of Solana in
the Province of Cagayan, a complaint against
one Elias Pagulayan for the theft of a horse
 Before the case was decided, Pascua, due to
Gacutan’s request, gave him a female carabao
worth about P80, in consideration of which
appellant agreed to decide said action adversely
to Pagulayan
 The carabao was delivered to appellant.
Thereafter, the accused decided the case
against Pagulayan, convicting him of larceny
CONTENTION OF GACUTAN
 He claimed to have proved by his witnesses and
by declarations that Pascua borrowed P20 from
the appellant and promised, in case of his failure
to repay the sum loaned, that he would give the
appellant a carabao in settlement thereof, and
that said carabao in question was delivered to
appellant in pursuance of said agreement.
presidio correccional in its maximum
degree and a fine of not less than the
value of the gift and not more than
double such value shall be imposed.
 It certainly is an act injustice to convict a person
charged with a crime without regard to what the
evidence in the case may be. The accused
promised Pascua to convict Pagulayan regardless
of the evidence in the case and apparently
carried out his promise. In consideration thereof
he was to receive and did receive a carabao
worth P80. It is an act of injustice for a judicial
officer to decide a case pending before him
regardless of what the evidence may show.
DECISION:
 Guilty of violating Art. 382 of the Penal Code which
sanctions Bribery of Justice of the Peace
o A justice of the peace who receives
money or other valuable thing in
consideration of his agreement to decide
an action in favor of the person giving the
money or other valuable thing, without
regard as to what the evidence in the
case may be is guilty of Bribery of Justice
of the Peace

SC:
 We do not hesitate in concluding that from the
evidence remains no doubt of the guilt of the
accused of the crime of bribery.

 We are of the opinion that the accused should

have been convicted under article 382 of the
Penal Code, which provides that:

o Any public officer who shall agree to

commit any act of injustice not
constituting a crime in connection with
the exercise of the powers of his office, in
consideration of any offer or promise or of
any gift or present received by such
officer, personally or through the
mediation of another, shall, if the act of
injustice be committed, suffer the penalty
of presidio correccional in its medium and
minimum degrees and pay a fine of not
less than the value of the gift and not
more than three times such value; if the
act of injustice shall not have been
committed, a penalty ranging from
arresto mayor in its maximum degree to
SALVADOR DE VERA v HON. BENJAMIN PELAYO, Presiding
Judge, RTC, Pasig City
The case is a petition for certiorari and mandamus1
assailing the Evaluation Report of the Evaluation and
Investigation Office, Office of the Ombudsman, dated
October 2, 1998 referring petitioner’s complaint to the
Supreme Court and its Memorandum, dated January 4,
1999,2 denying petitioner’s motion for reconsideration.
We state the relevant facts.
Petitioner is not a member of the bar. Possessing some
awareness of legal principles and procedures, he
represents himself in this petition.
On August 28, 1996, petitioner instituted with the Regional
Trial Court, Pasig City a special civil action for certiorari,
prohibition and mandamus to enjoin the municipal trial
court from proceeding with a complaint for ejectment
against petitioner.3 When the Judge originally assigned to
the case inhibited himself, the case was re-raffled to
respondent Judge Benjamin V. Pelayo.4
On July 9, 1998, the trial court denied petitioner’s
application for a temporary restraining order. Petitioner
moved for reconsideration. The court denied the same on
September 1, 1998.5
On September 23, 1998, petitioner filed with the Office of
the Ombudsman an affidavit-complaint6 against Judge
Pelayo, accusing him of violating Articles 2067 and 2078 of
the Revised Penal Code and Republic Act No. 3019.9
On October 2, 1998, Associate Graft Investigation Officer,
Erlinda S. Rojas submitted an Evaluation Report
recommending referral of petitioners’ complaint to the
Supreme Court. Assistant Ombudsman Abelardo L.
Apotadera approved the recommendation.10 We quote
the decretal portion of the report:11
"FOREGOING CONSIDERED, and in accordance with the
ruling in Maceda vs. Vasquez, 221 SCRA 464, it is
respectfully recommended that the instant complaint be
referred to the Supreme Court for appropriate action. The
same is hereby considered CLOSED and TERMINATED
insofar as this Office is concerned."
On October 13, 1998, the Office of the Ombudsman
referred the case to the Court Administrator, Supreme
Court.12
On November 6, 1998, petitioner moved for the
reconsideration of the Evaluation Report.
On January 4, 1999, the Ombudsman denied the motion
for reconsideration.13
Hence, this petition.14
The issue is whether or not the Ombudsman has jurisdiction
to entertain criminal charges filed against a judge of the
regional trial court in connection with his handling of cases
before the court.
Petitioner criticizes the jurisprudence15 cited by the Office
of the Ombudsman as erroneous and not applicable to his
complaint. He insists that since his complaint involved a
criminal charge against a judge, it was within the authority
of the Ombudsman not the Supreme Court to resolve
whether a crime was committed and the judge
prosecuted therefor.
The petition can not succeed.
We find no grave abuse of discretion committed by the
Ombudsman. The Ombudsman did not exercise his power
in an arbitrary or despotic manner by reason of passion,
prejudice or personal hostility.16 There was no evasion of
positive duty. Neither was there a virtual refusal to perform
the duty enjoined by law.17
We agree with the Solicitor General that the Ombudsman
committed no grave abuse of discretion warranting the
writs prayed for.18 The issues have been settled in the case
of In Re: Joaquin Borromeo.19 There, we laid down the rule
that before a civil or criminal action against a judge for a
violation of Art. 204 and 205 (knowingly rendering an unjust
judgment or order) can be entertained, there must first be
"a final and authoritative judicial declaration" that the
decision or order in question is indeed "unjust." The
pronouncement may result from either:20
(a).....an action of certiorari or prohibition in a higher court
impugning the validity of the judgment; or
(b).....an administrative proceeding in the Supreme Court
against the judge precisely for promulgating an unjust
judgment or order.
Likewise, the determination of whether a judge has
maliciously delayed the disposition of the case is also an
exclusive judicial function.21
"To repeat, no other entity or official of the Government,
not the prosecution or investigation service of any other
branch, not any functionary thereof, has competence to
review a judicial order or decision -- whether final and
executory or not -- and pronounce it erroneous so as to lay
the basis for a criminal or administrative complaint for
rendering an unjust judgment or order. That prerogative
belongs to the courts alone (underscoring ours)."22

This having been said, we find that the Ombudsman acted

in accordance with law and jurisprudence when he
referred the cases against Judge Pelayo to the Supreme
Court for appropriate action.

WHEREFORE, there being no grave abuse of discretion

amounting to lack or excess of jurisdiction committed by
the respondent, we DISMISS the petition and AFFIRM the
Evaluation Report of the Evaluation and Investigation
Office, Office of the Ombudsman dated October 2, 1998
and its memorandum, dated January 4, 1999, in toto.

No costs.

SO ORDERED.