United States v. Nieves

12 P.R. Fed. 369

Opinion

OdliN, Judge,

delivered tlie following opinion:'

In this case counsel for tbe defendant has demurred to tbe indictment upon tbe ground that tbe indictment sets forth that on tbe 12th day of May, 1921, the defendant did wilfully, knowingly, and unlawfully moor tbe schooner Bosa Maria, of which he is the master, to the bulkhead (or malecón) of San Juan harbor, a port suspected of plague infection in rodents, and so declared to be by a proclamation of the governor of Porto Eico, without the cones or disks commonly known as rat guards, etc.

The ground of the demurrer is that the indictment does not set forth in specific terms that San Juan harbor was suspected of plague infection on May 12, 1921, at the time of the alleged offense; and also that the said indictment does not use the words “then and there” in connection with the allegation that San Juan harbor was a suspected port. In support of this contention counsel for the defendant cites § 97, page 295, of Clark’s Criminal Procedure, 2d ed. But when we turn to page- 296 of the same book we find that in indictments for misdemeanors there is not required the same strictness with respect to the repetition of time and place as there is in cases of felony. The offense of which the defendant in the present indictment is accused being a misdemeanor, and not a felony, the court overrules the demurrer filed by counsel for said defendant, and directs that the defendant plead to the indictment on Saturday, January 14, 1922,. at 9 a. m. To this ruling counsel.for defendant excepts.