People v. Wys

25 P.R. 473

• Court: Supreme Court of Puerto Rico
• Decided: July 9, 1917
• Docket: No. 1084
• Status: Published

Opinions

Mr. Justice Wole

delivered the opinion of the court.

This was a prosecution under section 14 of the Civil Service Law which reads as follows-.

“Sec. 14. — That no person in the civil service of Porto Eieo shall be under obligations to contribute to a political fund or to render a political service, or be'removed or otherwise prejudiced for refusing to do so. Any person soliciting political contributions from public officers or employees shall be subject to a penalty of not exceeding five hundred dollars or to imprisonment not exceeding six months, or both.”

The information set up that at some date prior to the presentation of the same or on or about one of the days of January, 1916, in Ponce and within the judicial district of Ponce, defendant Eduardo Wys illegally and voluntarily solicited of J. Federico Maura who was then a public employee, a graded teacher and in active exercise in one of • the schools of Ponce, a quota or contribution of $30 for political purposes.

The primary question presented for our consideration, being the same as that arising in a number of other pending: appeals under the same section, is whether the information states a public offence. The appellant, among other things, maintains in effect that the words of section 14, supra, must be construed together and that the public offence is a solicitation whereby a person in the civil service contributes under undue political pressure or through fear of being removed, qr otherwise prejudiced.

Here, however, the alleged sanction of the law is contained in the last sentence of section 14 as follows:

“Any person soliciting political contributions from public officers or employees shall be subject to a penalty not exceeding five hundred dollars or to. imprisonment not exceeding six months, or both.”

And as the information follows these words the question arises whether it was sufficient to follow the words of the statute. In United States v. Carll, 105 U. S. 612, the court said:

“In an indictment upon a statute, it is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished; and the fact that the statute in question, read in the light of the common law, and of other statutes on like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent. United Stales v. Cruikshank, 92 U. S. 542; United States v. Simmons, 96 id. 360; Commonwealth v. Clifford, 8 Cush. (Mass.) 215; Commonwealth v. Bean, 11 id. 414; Commonwealth v. Bean, 14 Gray (Mass.) 52; Commonwealth v. Filburn, 119 Mass. 207.”

' Discussing the general subject of when it suffices to follow the statute, Wharton, Criminal Pleading’ and Practice, 223 (4), says-:

“The terms of a statute may be more broad than its intént, in which ease the indictment must so differentiate the offense (though this may bring it below the statutory description) as may effectuate the intention of the legislature.”

Clark’s Criminal Procedure, 266, states the rule and its exception as follows;

“Under a statute punishing any person Svho shall act as the agent of any other person or persons for the sale of intoxicating liquors,’ it is not sufficient merely to follow the language of the statute, for this would leave the indictment uncertain. The indictment must go further, and name the person for whom the defendant acted, or aver that his name is unknown. So, also, an indictment under a statute, for disturbing a family by offensive conduct, must allege what constituted the offensive conduct, and not merely follow the language of the act, and indictments under the statutes punishing the obtaining of money by false tokens or pretenses must always set out the particular false tokens or pretenses used. And under a statute making it a crime to break open, or to counsel, aid, or assist in breaking open, any jail or place of confinement, it certainly would not be enough to follow the words of the statute, without specifying how the defendant aided or assisted, or what counsel he gave. And an indictment alleging in the words of the statute that the defendant did knowingly aid a person named in procuring intoxicating liquor, to be disposed of for other purposes than those recognized as lawful by the laws of the State, is bad for not setting out the fa.cts, and for not alleging that the defendant ]mew that the liquor was to be disposed of for an. unlawful purpose, and for not alleging what that purpose was.”

“It is not sufficient to charge an offence in the language of the statute alone where by its generality it may embrace acts which it was not the intent of the statute to punish.” 22 Cyc. 343.

In State v. Bierce, 27 Conn. 319, it was said:

“The principal exception to this general rule respecting statutory offenses is where the words of the statute may, by their generality, embrace cases falling within its literal terms- which are not within its meaning and spirit; as for instance, the statute against obtaining property by false pretenses, Avhich is not deemed to include, notwithstanding the generality of the expression used — -‘by any false pretense’ — every such' pretense, in popular parlance, but only particular ■ kinds of false pretenses, and where therefore the general averment that the property was obtained by a false pretense, without stating what the pretense was, would not show, what is necessary to be shown in every indictment, that the act intended to be prohibited, must have been committed; and hence, as well' as to enable the accused to meet the charge, the pretense must be particularly set forth. ’ ’

In accordance witlr these principles it was held that the malicious destruction of glass in a building must be interpreted' and described as the destruction of a part of the building, and that words from the whole context of a statute may have a certain meaning not conveyed by a mere literal transcription. Commonwealth v. Bean, 11 Cush. 414. In Commonwealth v. Bean, 14 Gray, 52, the statute first enumerated grazing animals and then made it an offence to permit or suffer the same to stop to feed in the public streets’ and the court limited the word “feed” to “graze” as the intent of the statute was to punish grazing and not the mere direct feeding out of a trough or a bucket. Both of the foregoing cases were cited with approval in United States v. Carll, supra. State v. Carroll, 73 Atlantic, 780, was a case where the information followed the language of a statute and. charged the wilful and unlawful disturbance of a board of aldermen, assembled for a lawful purpose. The court held that- the interruption may be caused in a variety of ways, some within and some not within the prohibition of the statute; might arise from conduct inside or outside of the meeting; might arise from the lawful operation of a sawmill or otherwise as well as the deliberate and wilful firing of pistols or cannon; that the statute could not intend to punish for the lawful conduct of a man’s business, although it might interrupt or disturb nearby assemblages. The rule that statutes should be followed is not applicable in cases like the one before the court (Conn.) when the language includes a case not within the intent of the statute, citing State v. Bierce, 27 Conn. 319, supra; State v. Costello, 62 Conn. 128, 131, 25 Atl. 477.

It is to be noted in passing, although no comment is made in the opinion, that the words “unlawfully and wilfully” in the information furnished no aid.

In Sellers v. State, 61 So. 486, the statute made it an offence “to shoot a pistol at, into, in, through or against a dwelling house,” etc. The court held that to charge a crime the shooting in self-defense should have been excluded by the words of the.indictment.

“Whoever with intent to commit a felony breaks and enters a * * # railroad car of any kind, or building in which valuable things are kept,” shall suffer the penalty therein specified, were the words discussed in State v. Durán, 105 A. S. R. 278, and it was held that the felony must be described. The court also said:

“Where the offense is created by statute and the facts constituting it are fully set out, it is undoubtedly sufficient to charge the offense in the language of the statute without further description: 1 Bishop’s Criminal Procedure, see. 611. But ‘in all criminal prosecutions the accused shall have a right * * * to demand the nature and eause of the accusation’: Me. Const. art. 1, sec. 6. He has a right to insist that the facts alleged to constitute a crime shall be stated in the indictment against him with that reasonable degree of fulness, certainty and precision requisite to enable him to meet the exact charge against him, and to plead any judgment which may be rendered upon it in bar of a subsequent prosecution for the same offense. Hence if a statute creating an offense fails to set out the facts constituting it sufficiently to apprise the accused of the precise nature of the charge against him, a more particular statement of the facts will he required in the indictment. ‘And where a mere generic term is used, or where the words of the statute by their generality may embrace eases which fall within the terms but not within the spirit or meaning thereof, the specific facts must be alleged to bring the 'defendant precisely within the inhibition of the law’: 10 Ency. of PL & Pr., p. 487; Wharton’s Criminal Pleading & Practice, sec. 220. Indeed it is an elementary rule of criminal pleading that every fact or circumstance which is a necessary ingredient in a prima facie case of guilt must be set out in the indictment.”

There are similar pronouncements in California: People v. Terrill, 127 Cal. 59; People v. Schmitz, 7 Cal. App. 330; People v. Miles, 9 Cal. 312. The last-named case was more properly a case of negativing a specific exception in a statute and we quoted it with approval in the case of People v. Cortés, 24 P. R. R. 195, the dissenting judges of this court not differing from the principles discussed hut maintaining that the exception was negatived by the words of the information before us. The reason is the same in both cases. The public offence must appear in the information and, as People v. Miles shows, an information which charges an act which if true may still be innocent states no offence. As apt for the main proposition are The Abby Dodge, 223 U. S. 177; State v. Dodd, 147 Pac. 9; Bates v. State, 31 Ind. 72; Moulton v. Scully, 89 Atlantic, 944; Sarah v. State, 61 A. D. 544.

The rule to be deduced from the cited cases and the text books is that if there are cases that readily fall without the definition of the statute, such cases, must be negatived in the same way as if the exception were contained in the statute which we ha've elaborately discussed in the case of People v. Cortés, supra.

What was the intention of the legislature in this case? To punish every case of solicitation of an employee fop political purposes? It is a familiar rule of statutory construction that other parts of the same statute and even other statutes in pari materia may he looked at to determine the intention and spirit of an act. In this prosecution it is not necessary to wander beyond the limits of section 14 itself. Voluntary contributions by an employee are not forbidden in any sense. If the legislature wanted to forbid every kind of political solicitation why did it place the unnecessary preamble? In-that preamble the intention of the legislature is that no person may be removed or prejudiced for failure to contribute for political purposes. It militates against the idea that the legislature desired to punish in circumstances where the will of the employee was not unduly coerced, such as happens under a multitude of cases where political contributions are asked. Political parties cannot operate witho.ut funds' and while improper practices very frequently exist, there is no presumption that funds will be misused. ’ To ask all the members of a party to contribute financially towards the success of a campaign or the continuance of an organization is a perfectly licit proposal. If the solicitation is uniform there is certainly no wrong in including members of a party who may perchance be in the civil service. The mischief sought to be suppressed is' the kind of a solicitation that is calculated to induce in the mind of a person in the civil service a fear that his refusal may cause his removal or otherwise prejudice him. The employee must not be put “under an obligation” to contribute. The obligation must not be one of fear of removal or other prejudice. Such circumstances of enforced contribution may be many and varied biit they are capable of expression by a pleader.

Any doubts that we have of this construction of the .statute must vanish before other considerations, namely; the freedom of speech, and liberty of action in every individual guaranteed by the institutions under which we live and by the Constitution of the United States. We have grave doubts because of these constitutional limitations if the legislature of Porto Eico could - absolutely prohibit the solicitation of public employees for political purposes. The reported cases on the subject are not very extensive, but we are confident that no other legislature has attempted to prohibit all solicitations of public employees for political purposes and the reason lies in the fundamental liberty of the individual.

The national legislature limited itself to two classes of cases, namely, solicitations of officials by officials and solicitations within public buildings, sections 11 and 12 of the Act of January 16, 1883. Each of these sections has been upheld by the Supreme Court of the United States. United States v. Curtis, 106 U. S. 371, United States v. Thayer, 209 U. S. 39. In the latter case the court through Mr. Justice Plolmes, at p. 42, said: “The limits of the act, presumably, were due to what was considered the reasonable and possibly the constitutional freedom of citizens, whether officeholders or not, when in private life, and it may be conjectured that it was upon this ground that an amendment of broader scope was rejected.”

Now, while the question of whether Congress could absolutely prohibit the solicitation of employees was not before the court, the language of Mr. Justice Holmes is sufficient ■to show the court divined that the reason why Congress did not go further was because of a fear that it might transcend its constitutional powers. Section 12, under discussion in the Thayer case, is as follows:

‘ ‘ Sec. 12.- — That no person shall, in any room or building occupied in the discharge of official duties by a.ny officer or employee of the United States mentioned in this Act, or in any navy-yard, fort, or arsenal, solicit in any manner whatever, or receive any contribution of money or any other thing of value for any political purpose whatever. ”

It will be noticed tbat tbe statute broadly prohibits solicitation within a building without specifying the class of persons who may not be solicited. Yet we are satisfied that if one citizen not an officer meets another like citizen in the post office and asks for a subscription to a political fund he is guilty of no crime under said section. The court would say that it was the persons in the civil service whom it was the design of the statute to protect. That was evidently the view of the pleader in the Thayer case, supra, as the opinion shows that the indictment was in eleven counts, all charging the sending of letters to employees. The pleader there did not think it sufficient to follow the words of the statute. The idea, too, that it was the legitimate protection of employees, in the building is further slightly, evidenced by the citation of the earlier case of Ex parte Curtis, 106 U. S. 371. The whole scope of that case was the disciplinary power of the Government over its officials. A reading of that case also shows that there is a grave doubt of the extent to which a legislature may go, emphasized by the dissenting opinion of Mr. Justice Bradley.

In McAuliffe v. Mayor, etc., of City of New Bedford, 29 N. E. 517, an ordinance was upheld prohibiting policemen from soliciting money or aid for political purposes, the court through Mr.- Justice Holmes saying that the petitioner might have a constitutional right to talk polities, but that he had no constitutional right to be a policeman.

In Louthan v. Commonwealth, 52 A. R. 626, a law was declared unconstitutional which attempted to prevent an office-holder directly or indirectly to induce or procure any qualified elector to vote in favor of a particular party, etc., the court considering the law as an infringement of personal rights, and as we understand the opinion, of free speech.

In State v. Pierce, 158 N. W. 697, an act of the legislature .prohibited persons not candidates from going outside of their own county and spending money there for political purposes, the idea of the law, we take it, being to prevent the infusion of money in remote districts. The Supreme Court of Wisconsin declared the law unconstitutional as infringing liberty of speech. Other cases and authorities which touch the question are as follows: In re Sid Anderson et al., 5 A. & E. Annotated Cases, 421; People v. Armstrong, 73 Mich. 288; 6 R. C. L. 255; Note 32 L. R. A. 829. If the statute is to be taken absolutely it might have to be declared unconstitutional. In support of its constitutionality the Attorney General has cited us to various cases where a particular statute was saved by giving it a limitation within the spirit of the act. Woodward v. Fruitvale Sanitary District, 34 Pac. 239; 41 N. H. 553; State v. Smiley, 67 L. R. A. 903; Smiley v. Kansas, 196 U. S. 447; The Abby Dodge, 223 U. S. 166; Fox v. Washington, 236 U. S. 273. He concedes that 'cases might arise where an act of solicitation could be entirely innocent and outside of the spirit of the law. The legislature in passing this act presumably had in mind the history of legislation in civil service matters and the decisions of the courts and wanted to go as far as it could in protecting the public employees. It is the duty of the court to adopt such an interpretation of an act that will save its constitutionality. People of Porto Rico v. Central Fortuna, 22 P. R. R. 100, and cases cited, and also the cases cited supra. It has furthermore been laid down by the Supreme Court of the United States that without declaring an act unconstitutional the court should put such an interpretation on an act that will free it from grave doubts of its constitutionality. United States v. Delaware & Hudson Co., 213 U. S. 366; Lewis Publishing Co. v. Morgan, 229 U. S. 290; The Abby Dodge, 223 U. S. 175.

With the interpretation that we feel bound to give the act it follows that no public offence was charged inasmuch as no attempt was made to charge that a solicitation was attempted under the circumstances defined by the act. Herein we have not considered the matter but it would be good pleading on the part of the fiscal to allege that a solie-itation was made by a defendant knowing that a particular person was a public employee. United States v. Carll, 105 U. S. 612, supra.

Another error alleged was that a schoolteacher is not a a person in the civil service. He may or may not be in the classified civil service although we are inclined to think that he is surely in no other branch of the public service than the civil service.

The judgment must be reversed and the defendant discharged.

Reversed.

Chief Justice Hernández and Justice Aldrey concurred. Justices del Toro and Hutchison dissented.