People v. Cardona

57 P.R. 682
CourtSupreme Court of Puerto Rico
DecidedDecember 6, 1940
DocketNo. 8229
StatusPublished

This text of 57 P.R. 682 (People v. Cardona) is published on Counsel Stack Legal Research, covering Supreme Court of Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Cardona, 57 P.R. 682 (prsupreme 1940).

Opinion

Mb. Justice Tbavieso

delivered the opinion of the court.

The defendant-appellant was convicted and sentenced to pay a fine of $150, or to imprisonment in default thereof, for [683]*683a violation of Act No. 25 of July 17, 1935 (Session Laws, (2) p. 152), in that he “unlawfully, criminally, wilfully, and maliciously had established as owner a boli-pool bank and was engaged in the operation of said boli-pool bank, known by the name of ‘La Favorita,’ which is a clandestine combination, by means of the distribution and sale of tickets through agents, related to the National Lottery of Santo Domingo, which is a clandestine lottery in Puerto Rico.”

We will examine the eight assignments of error on which this appeal is based in the same order in which they appear in the brief of the appellant.

1. That the lower court erred in overruling the peremptory demurrer.

The ground of said demurrer was that the complaint failed to allege that the defendant knew that the tickets and implements which were seized were “knowingly” used for the prohibited game of boli-pool.

The lower court acted correctly in'overruling said demurrer. Section 4 of Act No. 25, supra, punishes “every person caught carrying or conveying any slip of paper, note, ticket, notebook, list of numbers, or implements, knowing that the same are used for the illegal games of 'bolita/ ‘boli-pool/ clandestine combinations related to the pools of the hippodromes of Puerto Rico and clandestine lotteries; and every person who buys them or any other similar ones which are proved to represent any ticket, chance, share, or interest in said illegal games or connected with the playing thereof”; and “every owner, proxy, agent, person in charge, director, or manager of the games prohibited by this Act.” Section 5 of the same act punishes “every owner of a printery or photoengraving shop who knowingly permits or allows to be printed or engraved in his establishment, notes, tickets, slips of paper, notebooks, or any other material that may be used and distributed in the operation of the illegal games generally known as ‘bolita,’ ‘boli-pool.’ ” As may be seen, an allega-[684]*684ti on that the act was done “knowingly” is necessary where there is involved the carrying, conveying, or printing of the tickets, bnt it is otherwise where the accusation is directed against the person who operates, as owner, the prohibited game, or against the person who sells the tickets. And it is natural and logical that this should be so, since it is possible that a person may carry, convey, or print notes or tickets without knowing that the same are to be used unlawfully. But it can not be presumed that a person who sells boli-pool tickets or who operates said games as owner, agent, or proxy does so without knowing that he is violating the law. If the prosecuting attorney were required to allege and prove that a person who sold a boli-pool ticket or operated said'game as owner did it knowingly, this would be tantamount to admitting that ignorance of the law is a good excuse for the noncompliance therewith.

2, 3, and 4. That the lower court erred in prohibiting the witness Jusino from answering a question propounded by the defense in connection with his complicity in the crime charged against the appellant; in not holding that said Jusino, the only witness testifying against the appellant, was an accomplice or confederate; and in convicting the defendant on the sole, uncorroborated testimony of an accomplice.

The witness Jusino testified that he saw Pascual Feliciano, a boy, sel] a ticket to Octavio Méndez Olivencia, that said ticket drew a prize; that the banker Baldomero Cardona, defendant herein, refused to pay said prize; that he knew that Cardona was the banker because the latter operated.a bank known as “La Favorita”; that the number which the district attorney exhibited to him was the same number that the boy sold; that he knew that Baldomero Car-dona was the owner of the bank “La Favorita” because the latter distributed those tickets and lived near his house, and that the witness saw him pay some boli-pool tickets; that he bought tickets from the defendant and bought them on many occasions.

[685]*685On cross-examination tire witness ratified and amplified ids testimony on direct examination, stating that on several occasions he had seen Pascual Feliciano distribute notebooks for the sale of the tickets; that he bought tickets from Feliciano and from the defendant personally, from the same notebook from which the ticket sold to Octavio Méndez Oli-vencia had been taken. The incident giving rise to the assignments under discussion occurred thus:

J'Q. Did you also sell those tickets?
“District Attorney: Do not answer that question. I object because it tends to incriminate the witness.
“Mr. Gelpi: Then I am going to ask that all of the testimony of the witness be stricken out as he stated that hejrarchased boli-pooi, tickets and that would also incriminate him.
“Judge: One who buys boli-pool tickets does uot violate the law.
“Mr. Gelpi: Then we take an exception on the following grounds: That the question put to the witness is relevant, inasmuch as it tends to ascertain everything relating to the transaction as to the bolipool bank which is claimed to belong to the defendant, and also because the right not to be incriminated is the right of the person who takes the witness stand, which right when violated must be asserted by him before the court in order that the latter may determine said right, it not being within the power of the judge presiding over the court or of the district attorneyfiiot to permit a question because the answer given to the same by the witness might incriminate the latter.
“District Attorney: Your Honor, he is a witness for the prosecution and, therefore, the district attorney is bound to see that he is not incriminated.”

As may be seen from what we have just transcribed, counsel for the defendant gave the lower court no opportunity to decide whether or not the witness should answer the question objected to by the district attorney. Without requesting and without waiting for any ruling on the question raised by the objection of the district attorney, said counsel moved that the testimony of the witness be stricken out on the ground that the latter had incriminated himself when he stated that he had bought tickets for the prohibited game of boli-pool. The decision complained of by the appellant [686]*686is correct. The statute punishes not the buyer, but the seller of a boli-pool ticket. Therefore,. the admission of the fact that he had purchased a ticket from the bank “La Favorita,” did not convert the witness Jusino into an accomplice or coauthor of the crime charged against the appellant. The record fails to support the claim that the judge prohibited the witness from answering the incriminating question propounded to him by the defense.

5 and 6. That the lower court erred in not permitting the defense to cross-examine the witness Jusino and in prohibiting counsel from examining said witness as to liis knowledge of the facts in the case.

Let us examine the incidents to which these assignments refer.

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57 P.R. 682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cardona-prsupreme-1940.