People v. Figueroa

48 P.R. 731

• Court: Supreme Court of Puerto Rico
• Decided: June 28, 1935
• Docket: No. 5467
• Status: Published

Opinions

Mr. Justice Hutchison

delivered tlie opinion of tlie court.

Figueroa was convicted of a violation of subdivision (a) of section 12 of the Act to regulate the operation of motor vehicles (Session Laws of 1916, pp. 140,147). That subdivision provides:

“That persons operating motor vehicles on the public highway shall at all times exercise due care and take every reasonable precaution to insure the safety of persons and property.”

The complaint filed in the municipal court charged .that:

“. . . . the said Horacio Figueroa was operating the heavy motor vehicle plate-number H-469 without exercising' due care or taking every reasonable precaution to insure the safety of persons and property, with one of the back covers {tupas) of the said truck swinging by a rope from one side to the other in such a way that on passing complainant at h. 9 of the said road, the said cover (tapa) struck him in such a manner that it threw him to the ground, seriously injuring him and leaving him unconscious, with his skull fractured, with the result that he had to be confined in the Hospital de Damas de Ponce.1 ’

The district court when the case came on to be heard de novo, overruled a demurrer for alleged failure to state an offense, and this is assigned as error. Appellant relies on People v. Borgue, 25 P.R.R. 553, and People v. Rivera, 26 P.R.R. 392. The complaint in the Borque case set forth that “. . . the said defendant, while driving his own car No. 519, willfully and maliciously failed to take proper precautions in the operation of said car to insure the safety of lives and property, causing the car to strike the hoy Joaquín Sola, who received bruises for which he was treated in the emergency hospital at Santurce.” The district attorney insisted that the complaint was good because it followed the language of the statute. What was said in the Borque case must be.construed in the light of the facts and of the question before this court. The complaint did not state an offense either under subdivision (u) or under any other subdivision of section 12 of the law. The contention of the district attorney could not have been sustained even if the complaint had followed literally the words of subdivision (a). That subdivision prescribes in broad and general terms a rule of conduct for persons operating motor vehicles on the public highway. It is not enough in such cases that the complaint should follow the language of the statute. It must be more specific so as to apprise the defendant more definitely as to the nature of the accusation against him. This is the general principle underlying the Borque case which was followed by this court in People v. Rivera, supra; People v. Salgado, 27 P.R.R. 804; People v. Matienzo, id. 838, and distinguished in People v. Garcia, 28 P.R.R. 898.

This court has never said, in a case like the one at bar, that it would be impossible to state an offense under subdivision (a), unless that offense be also included in some other subdivision of section 12. Anything contained in previous opinions that might be so construed by inference or implication must be regarded as obiter dicta because we have not heretofore been called upon to consider a case such as the one before us. We are now confronted for the first time with a complaint which plainly sets forth an offense covered by the provisions of subdivision (a) and not covered by any of the other subdivisions of section 12 of the law. Subdivision (a) is not a mere preamble or introductory paragraph. It is complete in itself and wholly independent of the other subdivisions of section 12. Each of the other subdivisions is likewise complete in itself and wholly independent of subdivision (a). A violation of any one of these .other subdivisions might be charged as a separate offense •■without any reference whatsoever to subdivision (a). A ■violation of some one or more of these other subdivisions might be charged also by way of specification as a violation of subdivision (a). This, however, is not true of all of the other subdivisions. A violation of subdivision (h) for example, could not be charged in the language of that subdivision, without more, as a violation of subdivision (a). A violation of subdivision (b) would not be in any sense a violation of subdivision (a). Subdivision (a), on the other hand, covers quite a number of offenses which could not be charged as a violation of any of the other subdivisions. A •driver who, for instance, backs his car suddenly and without warning from a side street into a crowded thoroughfare with reckless disregard for the safety of persons and property would be guilty of a flagrant violation of subdivision (a) but could not be successfully charged -with a violation •of any of the other subdivisions. The case at bar is another ■shining example. We need not multiply instances of this sort. If none other than violations of the other subdivisions •can be charged as a violation of subdivision (a) then the Legislature did a vain and idle thing in the enactment of that subdivision and we cannot bring ourselves to believe that this was the legislative intent. Hence, we hold that •the district court did not err in overruling the demurrer.

The second assignment is that the judgment is contrary to the law and the evidence. The gist of the argument is that the prosecuting witness was guilty of contributory •negligence in travelling in the same direction as was the truck on the left hand side of the road, instead of on the right. Such contributory negligence, if any, was no defense •and the contention as developed in the brief for appellant is without merit.

What we have said disposes of the questions raised 'by appellant. In the course of our own discussion of the .ease, however, the validity of the statute itself has been .challenged. In support of the view that it is void for uncertainty our attention has been invited to the following authorities: Czarra v. Board of Medical Supervisors, 25 App. D. C. 443; United States v. Capital Traction Co., 34 App. D. C. 592; United States v. Cohen Grocery Co., 255 U.S. 81; Connally v. General Construction Company, 269 U.S. 385; State of West Virginia v. Lantz, 26 A.L.R. 894; State v. Diamond, 20 A.L.R. 1527; Cinadr v. State, 300 S.W. 64, and Stevenson v. Houston, T.C.R. Co., 19 S.W. (2d) 207.

In the note to State of West Virginia v. Lantz, (1922) at page 898, the annotator says:

“Although the Georgia and Pennsylvania cases, as shown infra, .are in conflict, it is generally held that statutes or ordinances providing that no person shall operate or drive any motor vehicle recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic, and use of the highways, and the general and usual rules of the road, or so as to endanger the property, life, or limb of any person, are not invalid on the ground that they are too vague, uncertain, and indefinite to sustain a criminal conviction. ’ ’

After citing cases from Nebraska, Ohio and Wisconsin, the annotator quotes two interesting extracts from Mulkern v. State, (1922-Wis.) 187 N.W. 190; and State v. Schaeffer, (Ohio) 117 N.E. 220. See also Gallaher v. State, (1923) 29 A.L.R. 1059, and note; Commonwealth v. Pentz, 247 Mass. 500, 143 N.E. 322; and People v. Maki, 223 N.W. 70.

In the Supreme Court of the United States there are two lines of decisions, readily distinguishable one from the other and repeatedly distinguished by the Supreme Court itself. One of these lines includes such cases as United States v. Cohen Grocery Co., and Connally v. General Construction Co., supra. The other includes such cases as Nash v. United States, 229 U.S. 373; Miller v. Strahl, 239 U.S. 426, and Omaechevarria v. Idaho, 246 U.S. 343.

Ill the Nash case the court was dealing with the criminal provisions of the Sherman Anti Trust Act and, speaking' through Mr. Justice Holmes, said:

“The objection to the criminal operation of the statute is thought-to be warranted by The Standard Oil Co. v. United States, 221 U. S. 1, and United States v. American Tobacco Co., 221 U. S. 106. Those cases may be taken to have established that only such contracts and combinations are within the act as, by reason of intent or the inherent nature of the contemplated acts, prejudice the public interests by unduly restricting competition or unduly obstructing the course of trade. 221 U. S. 179. And thereupon it is said that the crime thus defined by the statute contains in its definition an element of degree as to which estimates may differ, with the result that a man might find himself in prison because his honest judgment did not. anticipate that of a jury of less competent men. The kindred proposition that ‘the criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty,’ is cited from the late Mr. Justice Brewer sitting in the Circuit Court. Tozer v. United States, 52 Fed. Rep. 917, 919.

“But apart from the common law as to restraint of trade thus, taken up by the statute the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is. wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death. ‘An act causing death may be murder, manslaughter, or misadventure according to the degree of danger attending it’ by common experience in the circumstances, known to the actor. ‘The very meaning of the fiction of implied malice in such cases at common law was, that a man might have to-answer with his life for consequences which he neither intended nor foresaw.’ Commonwealth v. Pierce, 138 Mass. 165, 178; Commonwealth v. Chance, 174 Mass. 245, 252. ‘The criterion in such eases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct. ’ I East P. C. 262. If a man should kill another by driving an automobile furiously into a crowd he might be convicted of murder however little he expected the result. See Reg. v. Desmond, and other illustrations in Stephen, Dig. Crim. Law, art. 223, 1st ed., p. 146. If he did no more than drive negligently through a street he might get off with manslaughter or less. Reg. v. Swindall, 2 C. & K. 230; Rex v. Burton, 1 Strange, 481. And in the last ease he might be held although he himself thought that he was acting as a prudent man should. See The Germanic, 196 U. S. 589, 596. But without further argument, the case is very nearly disposed of by Waters-Pierce Oil Co. v. Texas (No. 1), 212 U. S. 86, 109, where Mr. Justice Brewer’s decision and other similar ones were cited in vain. We are of opinion that there is no constitutional difficulty in the way of enforcing -the criminal part of the act.”

In Miller v. Strahl the court was discussing the constitutionality of a state statute which made it the duty of all proprietors of hotels of a specified class “in case of fire therein to give notice of same to all guests and inmates thereof at once and to do all in their power to save such guests and inmates.” From the opinion of the court by Mr. Justice, McKenna, we take the following extract:

“Plaintiff in error contends further that the statute ‘is lacking in due process of law’ because ‘it fails to prescribe any fixed rule of conduct.’ The argument is that the requirement ‘to do all in one’s power’ fails to inform a man of ordinary intelligence what he must or must not do under given circumstances.

“Rules of conduct must necessarily be expressed in general terms and depend for their application upon circumstances, and circumstances vary. It may be true, as counsel says, that ‘men are differently constituted,’ some being ‘abject cowards, and few only are real heroes;’ that the brains of some people work ‘rapidly and normally in the face of danger while other people lose all control over their actions.’ It is manifest that rules could not be prescribed to meet these varying qualities. Yet all must be brought to judgment. And what better test could be devised than the doing of ‘all in one’s power’ as determined by the circumstances?

“The case falls, therefore, under the rule of Nash v. United States, 229 U. S. 373, and not under the rule of International Harvester Co. v. Missouri, 234 U. S. 199.”

In Omaechevarria v. Idaho, the court had under consideration a state statute which prohibited “any person having charge of sheep who allows them to graze on any range previously occupied by cattle,” and further provided that: “priority of possessory right between cattle and sheep owners to any range is to be determined by the priority in the usual and customary use of it, as a cattle or sheep range. ’ ’ The opinion of the court delivered- by Mr. Justice Brandéis reads in part as follows:

“Second: It is also urged that the Idaho statute, being a criminal one, is so indefinite in its terms as to violate the guarantee by the Fourteenth Amendment of due process of law, since it fails to provide for the ascertainment of the boundaries of a 'range' or for determining what length of time is necessary to constitute a prior occupation a ‘usual’ one within the meaning of the act. Men familiar with range conditions and desirous of observing the law will have little difficulty in determining what is prohibited by it. Similar, expressions are common in the criminal statutes of other States. This statute presents no greater uncertainty or difficulty, in application to necessarily varying facts, than has been repeatedly sanctioned by this court. Nash v. United States, 229 U. S. 373, 377; Miller v. Strahl, 239 U. S. 426, 434.”

In Cline v. Frink Dairy Company, 274 U.S. 445, Mr. Chief Justice Taft wrote the opinion of the court. A Colorado Anti Trust statute was held to be unconstitutional. The case followed United States v. Cohen Grocery Company, supra, and other cases of that class which were reviewed at length. The doctrine of the Nash case, however, was reaffirmed and distinguished at page 464, in this wise:

“. . . It is true that, on an issue like negligence, i. e., a rule of conduct for the average man in the avoidance of injury to his neighbors, every one may be held to observe it either on the civil or criminal side of the court. It is a standard of human conduct which all áre reasonably charged with knowing and which must be enforced agamst every one in order that society can safely exist. We said in the Nash case (p. 377), ‘But apart from the common law as to restraint of trade thus taken up by the statute the law is full of instances where a. man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur the penalty of imprisonment, as here; he may incur the penalty of death. “An act causing death may be murder, manslaughter, or misadventure according to the degree of danger attending it” by common experience in tbe circumstances known to tbe actor . . . “Tbe criterion in sueb cases is to examine whether common social duty would, under tbe circumstances, have suggested a more circumspect conduct.” 1 East P. C. 262.’ Following tbe authority in tbe Nash case, we sustained in Miller v. Oregon, per curiam, 273 U.S. 657, a conviction of manslaughter under a statute of Oregon, which made tbe following rule of conduct a standard of criminality:

“ ‘Every person operating a motor vehicle on tbe public highways of this state shall drive the same in a careful and prudent manner, not to exceed thirty miles per hour, and within the limit of incorporated cities and towns not to exceed twenty miles per hour, and at intersections and schoolhouses not to exceed twelve miles per hour, and in no case at a rate of speed that will endanger the property of another, or the life or limb of any person.’ (Ch. 371, General Laws of Oregon, 1921, Section 2, sub-division 16.)

“The ind’ctment was framed under the last clause of this statute. Such standard for the driver of an automobile on a highway is one to which it is neither harsh nor arbitrary to hold those criminally who operate such a possibly dangerous instrument of locomotion, and who are or ought to be aware of what degree of care is necessary to avoid injury to others under the conditions that prevail on a highway. See Hess v. Pawloski, ante, p. 352.

“But it will not do to hold an average man to the peril of an indictment for the unwise exercise of his economic or business knowledge involving so many factors of varying effect that neither the person to decide in advance nor the jury to try him after the fact can safely and certainly judge the result. When to a decision whether a certain amount of profit in a complicated business is reasonable is added that of determining whether detailed restriction of particular anti-trust legislation will prevent a reasonable profit in the case of a given commodity, we have an utterly impracticable standard for a jury’s decision. A legislature must fix the standard more simply and more definitely before a person must conform or a jury can act. ’ ’

Comment would seem to be superfluous. Our conclusion is that subdivision (a) is not void for uncertainty.

The judgment appealed from must be affirmed.