People v. Mantilla Rodríguez

71 P.R. 35

• Court: Supreme Court of Puerto Rico
• Decided: March 17, 1950
• Docket: No. 14275
• Status: Published

Opinions

Mr. Justice Snyder

delivered the opinion of the Court.

The defendant was charged with a violation of § 4 of Act No. 220, Laws of Puerto Rico, 1948, known as the Bolita Act. She was convicted and sentenced to six months in jail. She has appealed, assigning five errors.

I — I

The first assignment is that § 4 is unconstitutional. According to the defendant, § 4 makes it a crime to possess any paper, slip, pencil, piece of adding machine tape, etc., which could possibly be used in a bolita game; that under § 4 the government is not required to show that the foregoing implements, which are susceptible of innocent use, were actually used or were to be used in a bolita game; and therefore that § 4 is so vague and indefinite that it violates the due process clause of the Organic Act, 48 U.S.C. § 737.¹

It is familiar doctrine that the due process clause requires that a statute be definite and certain. “The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement. The crime ‘must be defined with appropriate definiteness.’ Cantwell v. Connecticut, 310 U.S. 296; Pierce v. United States, 314 U.S. 306, 311. There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act, Lanzetta v. New Jersey, 306 U.S. 451, or in regard to the applicable tests to ascertain guilt.” Winters v. New York, 333 U.S. 507, 515-16.²

If § 4 meant what the defendant says it means, it would run afoul of the due process clause because it would fail to establish a certain and definite test to ascertain guilt. As thus construed, it would be so broad in scope, indefinite and vague that both (1) the innocent possession of intrinsically harmless objects such as pencils and slips with ordinary numbers written on them and (2) the reprehensible possession of the same objects in connection with an illegal bolita game, would be equally criminal. But “It is not permissible to enact a law which in effect spreads an all-inclusive net for the feet of everybody upon the chance that, while the innocent will surely be entangled in its meshes, some wrong-doers also may be caught.” Fairmont Co. v. Minnesota, 274 U. S. 1, 10. To permit such a statute to stand would be to violate the mandate of the Winters case that (p. 520) “Where a statute is so vague as to make criminal an innocent act, a conviction-under it cannot be sustained. Herndon v. Lowry, 301 U.S. 242, 259.”

The proposition that § 4'makes it criminal to possess innocent objects and is therefore unconstitutionally vague is not new. It was made in People v. De Jesús, 70 P.R.R. 36, where we disposed of it in the following language (pp¡ 40-41):

“The interpretation suggested by the appellant to the effect that the mere act of carrying a paper or a blank notebook constitutes a violation of § 4, is unreasonable. No court would com strue the statute in that way.

“If we adhere to the language of § 4, we get the impression that to merely carry, transport, use or possess any implement which may be utilized for the unlawful games of the bolita, boli-pool, etc., constitutes a violation of the Act. The intent of the Legislature in using the phrase ‘which may be-utilized’ was not to prohibit the carrying, using, transporting or possessing any object susceptible of innocent use. Its intention was to prohibit the carrying, using, transporting or possessing those objects when they have been utilized or are being utilized in connection with such games.”

The defendant nevertheless contends that the De JesúÉ case was incorrectly decided and should be reversed. His; position is that the language of § 4 is plain and unambiguous and that this Court cannot rewrite it under the guise of interpretation in order to save its constitutionality. To do so, he argues, would be for us to invade the prerogatives of the Legislature and to violate the doctrine of separation of powers.

However, we do not agree that § 4 plainly provides on its face that mere possession of objects which are susceptible of innocent use constitutes a crime. As we pointed out in the De Jesús case, this may be the first impression which is. gathered from a casual reading of § 4, isolated from the other' provisions of Act No. 220. But we think the intention of.’ the Legislature to convey a different meaning by this language becomes manifest when § 4 is examined carefully in the light of several guides to statutory construction.

First — A Section of a statute is read not in isolated fashion but. together with the other Sections of the Act in order to ascertain its true meaning and purpose. United States v. Alpers, 338 U.S. 680; Roig v. Tax Court, 65 P.R.R. 418, 421, and cases cited.

Section 4 of Act No. 220 does not stand alone. It is a single provision of a comprehensive statute which is designed to stamp out a serious evil in this community. In the other Sections of the statute certain acts other than possession of materials are made violations of these Sections. It is not disputed that the conduct which is thus made criminal by these other Sections must be shown to be connected with a bolita game. Indeed, the defendant argues that these provisions in the other Sections demonstrate that the Legislature deliberately omitted the requirement of such a connection from § 4. But we draw a different conclusion from the fact that these other Sections of Act No. 220 prohibit only conduct or acts which are connected with a bolita game. We think the Legislature did not mean in § 4 to deviate from the general pattern of the Act. We therefore read § 4 as providing, as in the' other Sections, that such a connection must be shown.

Second — The word “or” may be read as “and” in a statute if that will effectuate the legislative intent. This is a sound rule of statutory construction because “There has been ... so great laxity in the use of these terms that courts have generally said that the words are interchangeable and that one may be substituted for the other, if to do so is consistent with the legislative intent.” 2 Sutherland Statutory Construction, 3rd. ed., § 4923, p. 451, and cases cited; cases cited in 50 Am. Jur. § 282, pp. 267-8; see People v. Henneman, 69 P.R.R. 927.

We think this rule comes into play'here by reading the italicized word “or” in § 4, quoted in footnote 1, as “and”. As thus read, it becomes clear that if the charge of possession involves materials susceptible of innocent use, conviction cannot be had under § 4 unless the materials are shown to be connected with the actual operation of a bolita game.

3

The appellant argues that we are not authorized in this case to read “or” as “and”, since § 4 is clear on its face. There is, of course, no automatic answer as to when the substitution of “and” for “or” is permitted. The search is always for the legislative intent. But as we indicate throughout this opinion, we think the Legislature intended to require a showing of connection with a bolita game when the crime charged was possession of materials which are susceptible of innocent use. Under those circumstances, the cases permit the substitution of “and” for “or”.⁴

Third — Even a criminal statute is “to be given a sensible construction; and a literal application of a statute, which would lead to absurd consequences, should be avoided whenever a reasonable application can be given to it, consistent with the legislative purpose.”⁵ Applying this rule to the present case, we cannot believe the Legislature intended to declare as criminal acts which are innocent per se; namely, that it shall be a crime under § 4 to possess wholly innocuous materials, such as pencils and adding machine tape, not shown to be related to or connected with a bolita game. Such a dubious construction of a criminal statute should not be made unless the language of the statute compels it. And we are not prepared to say that the language of § 4 compels this unreasonable and absurd result. Rather we are satisfied that the Legislature meant to provide that possession of such otherwise innocent objects shall be criminal only if they are connected with an illegal bolita game.

Fourth — “The rule, often announced, that criminal statutes must be strictly construed does not require that the words of an enactment be given their narrowest meaning or that the lawmaker’s evident intent be disregarded.” United States v. Giles, 300 U.S. 41, 48; Singer v. United States, 323 U. S. 338, 341-2; United States v. Alpers, supra.6

The important thing under this approach is not to construe the statute either narrowly or broadly, but rather to gather from its language the legislative intent. This is merely another way of saying that no rule of construction may be used to defeat the obvious purpose of legislation. In fact, in this particular case we are following the rule of strict construction of penal statutes, as we are reading the statute more narrowly than the appellant. But we do so not because of that rule of strict construction but because we believe that is what the Legislature intended. In short, no rule, including this rule of strict construction, requires “rejection of that sense of the words which best harmonizes with the context and the end in view.” Gooch v. United States, 297 U.S. 124, 128; cases cited in footnote 4.

Fifth — If a statute is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional, it is the duty of the courts to adopt that construction which, without doing violence to the fair meaning of the language, will render it valid. Wong Yang Sung v. McGrath, 339 U. S. 33; Rescue Army v. Municipal Court, 331 U.S. 549, 569; Screws v. United States, 325 U.S. 91, 98, and cases cited; Fox v. Washington, 236 U.S. 273; Central Aguirre v. Tax Court, 64 P.R.R. 257, 263; Tugwell v. District Court, 64 P.R.R. 213; Ex parte Boneta et al., 39 P.R.R. 142, 154; see General Motors Acceptance Corp. v. District Court, 70 P.R.R. 898. In the instant case the defendant would have us construe § 4 in a manner which would make it palpably unconstitutional. We. prefer to follow the salutary rule of interpreting § 4 more narrowly and thereby sustaining its constitutionality.

As already noted, the defendant protests that there is no room for application of this — or any other — rule of statutory construction. Her theory is that § 4 is plain and unambiguous and “may not be distorted under the guise of construction . . .”. United States v. Alpers, supra, p. 681. In support of this argument, he cites, among others, the case of Yu Cong Eng v. Trinidad, 271 U.S. 500.

The Yu Cong Eng case involved the constitutionality of a statute of the Philippines which prohibited merchants from keeping their “account books in any language other than English', Spanish, or any local dialect.” The Supreme Court of the Philippines upheld the constitutionality of this statute, as applied to Chinese merchants doing business in the Philippines, by reading it as requiring the keeping in the named languages of such account books as are necessary for tax purposes. The Supreme Court of the United States reversed this judgment. It held that the plain terms of the Act pre-eluded the construction placed on it by the local court. It went on to say that instead the statute flatly prohibited keeping account books in Chinese and was therefore unconstitutional.

We think the Yu Cong Eng case is distinguishable. In the first place, the Section of the statute involved in that case consisted of a single, simple sentence. There was no room for construction, as the statute plainly prohibited the keeping of all account books in languages other than those listed therein. Secondly, the interpretation of the Philippine Supreme Court improperly replaced a definite prohibitory provision with an indefinite and vague mandatory provision. That is to say, even if the language of the statute were susceptible of the construction placed on it by the Philippine court, the statute as read by the latter court was too vague and indefinite to meet the requirements of due process.

Neither of these two considerations exist here. We indicate throughout this opinion our view that we are justified in reading § 4 contrary to its seemingly literal terms, in view of its language, its history, the remainder of the Act, and the nature of the subject-matter. And even more important, we have not, as the Philippine Supreme Court did, attempted to replace a definite with a vague and indefinite standard; on the contrary, our interpretation of § 4 avoids the danger of a vague and indefinite standard, which applies equally to innocent and reprehensible acts, by finding in § 4 a certain and definite standard of guilt.⁷

We recognize that the five rules just discussed are only aids to statutory construction,, and like all such guides may not be utilized to defeat the intent of the Legislature. United States v. Alpers, supra; Bowie v. Buscaglia, Treas., 63 P.R.R. 525; Puerto Rico Ilustrado v. Buscaglia, Treas., 64 P.R.R. , 881. But we think they may all be properly invoked in this case in support of the conclusion that the Legislature intended in § 4 to provide that possession of otherwise innocent objects constitutes a crime only if these objects are shown to be connected with a bolita game.

There is a final contention of the defendant as to the meaning of § 4 which warrants some discussion. She argues that the legislative history of Act No. 220 reinforces her contention that § 4 plainly provides on its face that mere possession of objects which are susceptible of innocent use constitutes a crime. Her theory is that § 4 of Act No. 25 of 1935 made it a crime to transport such implements “knowing that the same are used for the illegal games of bolita. . and that thereafter the Legislature deliberately eliminated this language in § 4 of Act No. 220 of 1948 in order to avoid the difficulty of establishing violations of' § 4 of Act No. 25, as interpreted by our cases.⁸ According to her, we cannot exercise legislative functions by “repealing” the 1948 Act and “reviving” the 1935 Act.

It is true that our earlier cases on which the defendant relies in making this point discussed the requirement of connection with a bolita game.' But they did so only to show that conviction for operation of such a game could not be had without showing such a connection. That is obviously true; but it has no reference to the problem óf whether the 1948 Act, which for the first time makes possession a crime, did or did not provide that for possession of apparently innocuous materials to constitute a crime, such possession must be shown to be connected with a bolita game.

The cases referred to contain no discussion of the requirement that some connection with a bolita game must be shown on a charge of possession. On the contrary, those cases, in exposing one of the weaknesses of the 1935 Act, indicate that possession of bolita materials was not an offense, under the earlier statute and that, in the absence of a showing of transporting of bolita materials or operation of a bolita game, conviction could not be had thereunder. The Legislature therefore undertook in the 1948 Act to remedy this defect: for the first time possession of bolita materials was made a crime. But we find nothing in the' language of our cases interpreting the 1935 Act or in Act No'. 220 of 1948 which demonstrates that the Legislature meant, in making possession an offense, to forego the requirement that possession of materials which are susceptible of innocent use must be shown to be connected with a bolita game.

In conclusion, we take judicial notice that the operation of bolita games in Puerto Rico is a serious evil. The Legislature has chosen to legalize some forms of gambling. People v. Escambrón Beach Club, 63 P.R.R. 731, 748-749; Act No. 221, Laws of Puerto Rico, 1948. But it has recognized the dangers and corrupting influence of the playing of bolita, a game in which racketeers prey on our poorer classes. Act No. 220 represents a laudable attempt to deal effectively with these illicit activities. The Supreme Court has told us that it “goes far” to uphold such statutes.⁹ We think we have followed that mandate here.

We also think it appropriate to point out that once we have concluded that § 4 requires a showing that the materials involved were connected with a bolita game, the constitutional problem vanishes. The defendant does not contend that the statute as thus construed violates due process. She argues only that it cannot be so read; that it must be read as she construes it; and that as thus interpreted it is unconstitutionally vague. But since we disagree with her as to the meaning of § 4, the constitutional question drops out of the case.9a

hH I — I

The second assignment is that the district court erred in overruling the demurrer to the information. The theory of the demurrer was that the information did not state facts sufficient to constitute a violation of § 4 of Act No. 220 of 1948. The defendant relies on §§ 71, 82, 83, Code of Criminal Procedure, 1935 ed., and The People v. Marini, 22 P.R.R. 10. She contends the information was fatally defective because it charged that she had in her possession “material” which could be and was used in the illegal game of bolita. She asserts that the word “material” is too vague and indefinite as it could conceivably include not only the objects specifically listed in § 4, but also a shoe, a suit, or anything not belonging to the spiritual world.-

The Assistant Fiscal of this Court concedes that the information could have been drawn in more specific terms. But we agree with him that a person of ordinary intelligence would understand this charge. The word “material” includes the implements specifically named in § 4. Moreover, the generic words “material” and “materials” are frequently used throughout Act No. 220. Indeed, the use of such general terms is made necessary-by the ingenious methods used by bolita operators to conceal their activities.¹⁰ In view of the nature of the subject-matter, we hold that the charge of possession of such material was sufficiently definite, for purposes of stating an offense under § 4. The Marini case was decided under different facts and a different statute and is distinguishable. If the defendant had desired a more specific description of the material, she could have obtained it by moving for a bill of particulars. People v. Palacios, 66 P.R.R. 906, 908; People v. Méndez, 67 P.R.R. 772, 779; United States v. Petrillo, 332 U.S. 1, 10-11. But she made no such motion.

HI

The third assignment is that the lower court erred in overruling the motion to suppress the evidence obtained as a result of the search of the defendant’s house. The appellant makes several attacks on the sworn statement on which the search warrant was based and on the warrant itself. However, the only point worthy of mention is her contention that the warrant was void because it did not recite on its face that it must be executed and returned to the issuing magistrate within ten days after its date.

Section 512, Code of Criminal Procedure, 1935 ed., provides that a search warrant must be executed and returned within ten days after its date. But it does not provide that this shall be recited on the face of the warrant. Nor is such a recital made in § 507, which sets out the form for a search warrant. Under a similar Federal statute, it has been held that it is not necessary to incorporate this provision of law in the warrant itself. Benton v. United States, 70 F. (2) 24, 26 (C.A. 4th, 1934), cert. denied, 292 U.S. 642.¹¹ The warrant in this case was actually executed and returned within ten days of its issuance. We therefore hold that under § 512 the warrant was validly issued and executed.

IV

In the fourth and fifth assignments the defendant attacks the weighing of the evidence by the lower court. The testimony shows that three detectives searched the house of the defendant pursuant to a search warrant; that among the things found were lists with numbers of three figures, followed by a dash and another number; that bolita is played by betting on a number with three figures; that in a bolita list, the first number is the number on which the bet is placed; that the number following the dash is the amount which is bet;- and that these lists were bolita numbers, as they answered the foregoing description of lists of bolita numbers.

The defendant offered no evidence to challenge this testimony. Nor did she refute the proof that bolita is played in the manner prescribed. Indeed, we have had so many cases in which this has been established that we can almost take judicial notice that in Puerto Rico bolita is generally played by betting on the numbers 000 to 999, keyed to the last three numbers of the lotteries of Puerto Rico or Santo Domingo, and the local racetrack pool, and that bolita lists consist of a series of three-figure numbers, followed by a dash and the amount bet on the respective numbers. See, for example, People v. Acevedo, 70 P.R.R. 534. In the absence of evidence to the contrary, the district court was therefore entitled to conclude that the lists of numbers introduced in evidence could be used for no purpose other than to play bolita.

In Part I we upheld the constitutionality of § 4 of Act No. 220 as applied to possession of materials which are susceptible of innocent use on the ground that § 4 requires an affirmative showing that these materials were actually connected with a bolita game. But a different question is presented as a matter of evidence where as here the materials are not susceptible of innocent use but are of such a nature that they could be used for no purpose other than to operate a bolita game. Under the latter circumstances, a violation of § 4 is established by proof of possession of such materials; no additional evidence of connection with a bolita game is required precisely because the materials themselves establish the said connection.¹² See Adams v. New York, 192 U.S. 585, 599; Ex parte McClain, 134 Cal. 110 (1901); Ford v. State of Maryland, 85 Md. 465, 41 L.R.A. 551 (1897). Cf. United States v. Rabinowitz, 339 U.S. 56, decided February 20, 1950, in which the court says (p. 8, slip opinion) “the possession of the forged and altered stamps was a crime, just as it is a crime to possess burglars’ tools, lottery tickets or counterfeit money.”

The situation is akin to that discussed in United States v. Raynor, 302 U.S. 540, where the court upheld a conviction under a Federal statute for possession of paper similar to that adopted by the Secretary of the Treasury for the obligations and other securities of the United States. The Supreme Court said that paper found in the possession of the defendant (p. 543) “was not only perfectly adapted for counterfeiting, but it is difficult to conceive of its use for any other purpose.” Since the defendant did not dispute the uncontra-dicted testimony that the lists in question could not be used for anything except a bolita game, the testimony in this case was sufficient to- show a violation of § 4.¹³

The judgment of the district court will be affirmed.

Mr. Justice Negrón Fernández did not participate herein.

1 Section 4 of Act No. 220 reads in part as follows: “Any person caught carrying or transporting or who has in his possession for any reason any papeleta,- billete, ticket, note-book, list of numbers or letters, slips, or implements which can be used for the unlawful games of bolita, bolipul, combinations connected with the pools or bancas of the racetracks of Puerto Rico, and clandestine lotteries, and any person who possesses, sells, or in any way transports these or any other similar ones which may be utilized or used in said unlawful games or connected with the practice thereof, shall be guilty of a public offense . . .” (“or” italicized by us).

2 United States v. Petrillo, 332 U.S. 1; Cole v. Arkansas, 338 U.S. 345, 354; Gorin v. United States, 312 U.S. 19; Champlin Rfg. Co. v. Commission, 286 U.S. 210; Connally v. General Const. Co., 269 U.S. 385; United States v. Cohen Grocery Co., 255 U.S. 81.

See Rottschaefer on Constitutional Law, pp. 765-67; 62 Harv.L.Rev. 77; 22 So. Calif.L.Rev. 298; 96 U. of Pa.L.Rev. 889; 33 U. of Va.L.Rev. 203; 35 Calif.L.Rev. 594; 29 Calif.L.Rev. 548; 45 Harv.L.Rev. 160.

3 In stating in the De Jesús case that the Legislature intended to prohibit possession of implements “when they have been utilized or are being utilized in connection with such [bolita] games”, we did not, as the appellant contends, inject the quoted clause into $ 4. What we were in effect doing — and we now do so explicitly — was to read the italicized word “or” as “and”.

4 The courts have also refused to be confined by the seemingly literal language of a statute in other situations where there was.room for construction and where literal application would defeat the manifest intent of Congress. United States v. Alpers, supra; Quiñones v. United States, 161 F.(2) 79, (C.A. 1st, 1947); Rullán v. Buscaglia, 168 F.(2) 401 (C.A. 1st, 1948), cert. denied, 335 U.S. 857; Parrondo v. L. Rodríguez & Co., 64 P.R.R. 418; Tugwell v. District Court, 64 P.R.R. 213; Ballester v. Court of Tax Appeals, 61 P.R.R. 460, 476-77; Ballester v. Court of Tax Appeals, 60 P.R.R. 749, 759; Compañía Popular v. Unión de Empleados, 69 P.R.R. 167, 177, footnote 2; People v. Tirado, 69 P.R.R. 361; Sucesión de Giusti Inc. v. Tax Court, 70 P.R.R. 109, 126, footnote 9.

5 United States v. Katz, 271 U.S. 354, 357; Adams v. New York, 192 U.S. 585, 599. See also U. S. v. Amer. Trucking Ass’ns., 310 U.S. 534, 543; Armstrong Co. v. Nu-Enamel Corp., 305 U.S. 315, 332-3; Sorrells v. United States, 287 U.S. 435, 446; Singer v. United States, 323 U.S. 338; United States v. Giles, 300 U.S. 41; Haggar Co. v. Helvering, 308 U.S. 389, 394; Helvering v. Hammel, 311 U.S. 504, 510-11; Lau Ow Bew v. United States, 144 U.S. 47, 59.

6 In its most recent restatement of this rule in the Alpers case, the Supreme Court said at p. 681: “We are aware that this is a criminal statute and must be strictly construed. This means that no offense may be created except by the words of Congress used in their usual and ordinary sense. There are no constructive offenses. United States v. Resnick, 299 U.S. 207, 210. The most important thing to be determined is the intent of Congress. The language of the statute may not be distorted under the guise of construction, or so limited by construction as to defeat the manifest intent of Congress. United States v. Raynor, 302 U.S. 540, 552.”

7 The Yu Cong Eng case itself points out that .(P- 518) “it is the duty of a court in considering the validity of an act to give it such reasonable construction as can be reached to bring it within the fundamental law.” That is what we think we have done here.

8 People v. Vega,, 67 P.R.R. 725; People v. Toro, 66 P.R.R. 681; People v. Salabarría, 57 P.R.R. 128; People v. Estronza, 57 P.R.R. 880.

9 “This Court goes far to uphold state statutes that deal with offenses, difficult to define, when they are not entwined with limitations on free expression [citing in the footnote, Omaechevarría v. Idaho, 246 U.S. 343; Waters-Pierce Oil Co. v. Texas, 212 U.S. 86]. We have the same attitude toward federal statutes [citing in the footnote, United States v. Petrillo, 332 U.S. 1; Gorin v. United States, 312 U.S. 19]. Only a definite conviction by a majority of this Court that the conviction violates the Fourteenth Amendment justifies reversal of the court primarily charged with responsibility to protect persons from conviction under a vague state statute.” Winters v. New York, 333 U.S. 507, 517-18.

In People v. Almodóvar, decided today, the defendant attacked the constitutionality of § 4. We never reached the constitutional question in that case, as it was decided on other grounds. However, in this case we have carefully considered all the arguments on constitutionality advanced in the brief of counsel for the defendant in the Almodóvar case.

10 See New York Herald Tribune, February 28, 1950, reporting the seizure of booklets purporting to offer spiritual guidance. The booklets contained numbers at the end of the “spiritual message” for each day. These numbers purported to be references and cross-references to passages in the Bible. The police charged they were actually “tip sheets for the numbers game”.

11 In an earlier case, our Court of Appeals interpreted the Federal' statute to the contrary. Giles v. United States, 284 F. 208, 215 (C.A. 1st, 1922). But since'the meaning of a local statute — $ 512 of the Code of’ Criminal Procedure — is involved, we are free to adopt our own rule. DeCastro v. Board of Comm’rs., 322 U.S. 451.

12 The appellant makes no point of the fact that § 4 of Act No. 220, unlike § 4 of the 1935 Act, contains no provision that the offense must be committed “knowingly”. The question of whether accidental or fortuitous possession would be a proper defense under § 4 of Act No. 220 is therefore not before us. Cf. Screws v. United States, 325 U. S. 91, 96-97, 101-5, 153-57; People v. López, 67 P.R.R. 585, 591 et seq; People v. Díaz, 62 P.R.R. 129, 135; People v. Solla, 66 P.R.R. 902, 905; People v. Vázquez, 26 P.R.R. 13; Rottschaefer on Constitutional Law, pp. 763-4.

13 (Because the Romero case is pending on appeal, the Chief Justice and Mr. Justice Marrero, who join in this opinion, think footnote 13 should not appear herein. The statements therein therefore represent the views of the writer alone.)

People v. Aleja Romero Widow of Ortiz, per curiam, decided January 17, 1950, involved a somewhat similar problem. In that case we used the following language: “The second and third errors are directed against the sufficiency of the evidence. The essence of appellant’s contention is that • the mere possession of bolita materials is not sufficient. But, as we have held in People v. De Jesús, 70 P.R.R. 36 and People v. Acevedo, 70 P.R.R. 534, the possession of bolita materials which may be used in a bolita game constitutes a violation of the Act. And in the instant case the evidence was sufficient in that respect.”

The Romero case has been appealed to the Court of Appeals for the First Circuit. We therefore think it appropriate to correct any misapprehension that may arise by virtue of the somewhat cryptic language of our per curiam opinion in the Romero case. In that case, as in the instant case, the conviction was predicated on possession of lists consisting of numbers of three figures, followed by a dash and a number to the right. There as here there was uncontradicted testimony that such lists are used to play bolita', the three numbers represent the number played; the number following the dash represents the amount played. In the absence of any testimony to the contrary, the conclusion by the trial court that these lists could be used for no purpose other than to operate a bolita game was reasonable and justified. Under these circumstances, as we have seen, conviction may be had under $ 4 without additional evidence showing connection with an actual bolita game. See also, People v. Acevedo, 70 P.R.R. 534; People v. Cortés, 70 P.R.R. 453; People v. Báez, 70 P.R.R. 578.

2 Three Justices, Black, Frankfurter, and Jackson, dissented and one, Douglas, took no part in the decision of the case.