People v. Martín

Mr. Justice Wole delivered the opinion of the court. As a first ground of error the appellant attacks the information. If the transcript be examined it will be seen that no demurrer was filed. As shown, however, by the statement of the case, the defendant at the trial presented what he styled a peremptory exception. We have decided in the case of People v. París, 25 P. R. R. 103, that matters not privileged in the nature of a demurrer presented on the day of the trial come too late. See also People v. Ramírez de Arellano, 25 P. R. R. 243. . The court, then, should only take notice of fundamental errors in the information. It is as follows: “Tlie said Luis Martin heretofore, in or about July, 1917, and in the ward of Boquerón, located in Pasaje of the municipal judicial district of Cabo Rojo, which forms part of the judicial district of Mayagiiez, P. R, illegally, voluntarily, maliciously and with the intention of benefiting himself, took wood belonging to The People of Porto Rico of the value of seventy-one dollars ($71), and the said defendant appropriated it fraudulently, thus depriving The People [588] of Porto Rico of the ownership of the same. The wood taken by the defendant belonged to a farm known as ‘Morrillos de Oabo Rojo,’ an islet.” It was not necessary to describe in detail tbe kind, class, or valne of tbe wood alleged to have been taken, nor was it necessary to express tbe exact date of tbe alleged taking. Tbe failure to include these matters was not even subject to an averment of error, and their omission is certainly not fundamental. It was not error at all to describe Morrillos de Oabo Eojo as an island and also as a farm located in Pasaje in tbe ward of Boquerón. Variance between tbe information and the proof was not alleged. Other alleged errors of a similar nature need not be considered. A more serious error is tbe question of whether defendant did in fact convert tbe wood to bis own use so as to bring bis act within tbe definition of tbe crime of larceny. Tbe facts as to tbe taking are not disputed. Tbe defendant was tbe principal lighthouse keeper on tbe island Morrillos de Oabo Eojo. He ordered certain peons to cut wood which was converted into charcoal and sold by him. Appellant maintains that these acts constitute embezzlement. That tbe commission by agent, bailee or trustee may constitute larceny, is shown by tbe following cases: People v. Poggi, 19 Cal. 600; People v. Bilden, 37 Cal. 51; People v. Johnson, 91 Cal. 265, 27 Pac. 663; People v. Perini, 94 Cal. 573. When the defendant bad tbe wood cut, converted into charcoal and then sold, bis act fell within section 426 of tbe Penal Code, as follows: “Larceny is the felonious stealing, taking, carrying, leading, or ■driving away the personal property of another.” Tbe People of Porto Eico could not be conceived to have parted with tbe possession of tbe property by appointing a custodian. We likewise find that there was sufficient proof that the wood taken belonged to The People of Porto Eico and that [589] the act charged was committed a short time before the filing of the information, or at about the time of the arrest. The judgment must he Affirmed. Chief Justice Hernández and Justices del Toro, Aldrey and Hutchison concurred.