People v. Portalatín

72 P.R. 145
CourtSupreme Court of Puerto Rico
DecidedFebruary 12, 1951
DocketNo. 14905
StatusPublished

This text of 72 P.R. 145 (People v. Portalatín) 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. Portalatín, 72 P.R. 145 (prsupreme 1951).

Opinions

Mr. Justice Snyder

delivered the opinion of the Court.

The defendant was tried and convicted of violation of § 10 of Act No. 220, Laws of Puerto Rico, 1948, under an information alleging that “illegally, willfully and maliciously, he was the owner of a Bolipool game. That as such owner he operated said game and distributed or caused to be distributed among his agents for sale, tickets, slips, books and every type of material which is used or could be used in connection with the illegal games known as ‘Bolita’ and ‘Boli-Pool’ in combination with a clandestine lottery, paying a money prize to the person possessing the number which coincides with the last three figures of the number of the aforesaid lottery.”

On appeal the first assignment is that the lower court erred in overruling the demurrer to the information; The defendant’s position is that the information is ambiguous, unintelligible and “doubtful” and therefore does not comply with the requirements of § § 71 and 82 of the Code of Criminal Procedure, 1935 ed.1 In support of this contention, the appellant argues that the allegation of ownership of a “Boli-pool” game does not give sufficient information to a defendant that he is accused of violating § 10 because there is no definition or mention of a “Boli-Pool game” in § 10 or elsewhere in Act No. 220.

We find this argument fallacious. In statutes and in-formations of this type the Legislature and the district attorney are entitled to use short-hand labels of activities which the community as a whole recognizes and understands without reciting in detail the various steps which make up [149]*149such activities. For example, the Legislature did not in § 299 of the Penal Code describe the rules of poker and other gambling games when it made playing such games a crime. Yet a defendant could not attack § 299 as vague and ambiguous; nor could he contend that an information thereunder must set forth in great detail the method of playing poker. By the same token, one who lives in this community can reasonably be expected to understand the charge against him when he is accused of being the owner of a “Boli-Pool game”. He knows what the rest of the public knows, and the public knows that boli-pool is played here by means of independent “games” which receive money from the sale of tickets or numbers and which pay prizes in money to the persons who hold the numbers which win in the drawings.

Section 10 of Act No. 220 is in this respect similar to § 4 of Act No. 25, Laws of Puerto Rico, 1935, Special Session, which also made it an offense to be the owner of a bolita game. Act No. 25 in the same way contained no definition or mention of the phrase “bolita game”. Yet informations brought under § 4 used this term without describing in detail of what the game consisted. See People v. Cardona, 57 P.R.R. 682. As we pointed out in People v. Mantilla, 71 P.R.R. 35, 47, “Indeed, the use of such general terms is made necessary by the ingenious methods used by bolita operators to conceal their activities.” See Forte v. United States, 83 F. (2) 612 (C.A., D.C., 1936) ; 2 Wharton’s Criminal Law, 12 ed., § 1783, pp. 2085-6.

Under this assignment the defendant also argues that the information is not sufficient to spell out a violation of § 10 of Act No. 220 because it' does not contain any allegation “that denotes possession or dominion” on the part of the appellant of any of the games prohibited by Act No. 220. Section 10 provides that “Any owner ... of the games prohibited by this Act, shall be guilty of a felony . . . ”. [150]*150The information is sufficient inasmuch as it charges Violation thereof in the language of the statute.

We are unable to agree with the defendant that the information is vitiated by the reference therein to “a clandestine lottery”. We construe the allegations of the information to mean that the lottery is being conducted by the defendant. It is true that the arrangement may be that the winning number is ascertained by something which occurs beyond the control of the defendant, such as at the race-track or in the Santo Domingo lottery. But that does not change the fact that the defendant is in substance operating a clandestine lottery of his own.

The second assignment is that the lower court erred in overruling in part the motion for a bill of particulars. The motion asked for (a) the date of commission of the crime; (6) details of the so-called “bolita game”; (c) details of the imputed agency, giving the names of the alleged agents; (d) the type of clandestine lottery the defendant owned; (e) what type of prize was paid by the defendant and the form of payment.

The motion was granted as to (a) and (e). The motion was properly denied as to (6) and (d) for the same reasons already noted in discussing the first error. The defendant was not entitled to the information requested in (c) since this consisted of evidence rather than material appropriate for a pleading such as a bill of particulars. It is therefore apparent that our dictum in People v. Mantilla, supra, p. 48 that “If the defendant had desired a more specific description of the material, she could have obtained it by moving for a bill of particulars,” does not apply to the facts of this case.

The third error is directed to the denial of the motion to eliminate “and distributed or caused to be distributed” from the information. The defendant contends that the terms are mutually exclusive and that one or the other should have been eliminated. We cannot agree. We [151]*151fail to see what prejudice flows from requiring a defendant to defend himself on a charge that as the owner of a boli-pool game he “distributed or caused to be distributed” bolita materials for sale. The defendant might have distributed, or caused to be distributed, or both. Indeed, he concedes that the information would not be defective if “or” had been replaced by “and”. Describing the defendant’s alleged acts in the alternative is simply a way of avoiding the problem of whether a charge of “distributing” would make the defendant liable for the acts of agents who acted under his orders as well as for his own acts. We find no prejudicial error in the order overruling the motion to eliminate.

The fourth assignment is that the lower court erred in denying the defendant’s motion for trial by jury. Section 10 of Act No. 220 as originally enacted did not specifically provide that trial of cases thereunder shall be by court exclusively. A proviso to that effect was added to § 10 by Act No. 264, Laws of Puerto Rico, 1950. Since the alleged offense was committed prior to enactment of Act No. 264, the defendant contends that he had the option of trial by jury or by court.

The difficulty with his position is that shortly after passage of Act No. 264 we held that the general provision in § 4 of Act No. 220 for trial by court exclusively “for violations of the provisions of this Act” required trial by court on a charge of violation of § 8 despite the lack of such a specific provision in § 8 itself. Rivera v. González, Warden, 71 P.R.R. 626. In the same way, the general provision of § 4 required trial by court for violations of § 10 even prior to the amendment thereof in Act No. 264. In other words, in amending § 10 prior to the Rivera

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72 P.R. 145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-portalatin-prsupreme-1951.