People v. Aparicio-Ribera

Mb. Justice Wole delivered tbe opinion of tbe court. Section 93 of tbe Penal Code provides: “See. 93. — Every person holding a public office, who wilfully refuses or neglects to perform the duties thereof, or who violates any provision of law relating to his duties or the duties of his office, for which some other punishment is not prescribed, is punishable by fine not exceeding five thousand (5,000) dollars, or (by) imprisonment in jail not exceeding one year or both.” [6] Thereunder, José Aparicio Eibera, Municipal Auditor of Adjuntas, was charged with several violations of public duties. After a trial the defendant made a motion of non-suit which the District Court of Ponce granted. The government appealed by virtue of paragraph 6 of section 348 of the Code of Criminal Procedure, construed favorably to such appeal in People v. Mallen, 15 P.R.R. 778. The information charged violation of duties “ voluntariamente” and “obstinadamente.” The court held that neither the “obstinación” nor the “voluntariedad” had been proved. The word “wilfully” in the English text has been rendered into Spanish by the word “obstinadamente,” but by a long line of decisions the English in this subject matter prevails: People v. Charón, 7 P.R.R. 416; People v. Agosto, 10 P.R.R. 425; People v. Acosta, 11 P.R.R. 240; People v. Torres, 9 P.R.R. 396; People v. Torregrosa, 24 P.R.R. 12; People v. Santiago, 16 P.R.R. 446, and People v. Kent, 10 P.R.R. 325. The Penal Code, besides, is of American origin and that the English text should then govern is the effect of Act. No. 8 of the Legislature of Porto Rico of November 12, 1917. The information used both the words “voluntariamente,” meaning “wilfully,” and “obstinadamente,” meaning with a set purpose and carrying with it perhaps some idea of mens rea. We agree with the government that the word “obstinadamente” may be regarded as surplusage. There is a wide conflict among the authorities as to the meáning of the word “wilfully” when ordinarily used in a penal statute. See the following citations: Felton v. United States, 96 U. S. 697, and its citations; Kletzing v. Armstrong (Iowa), 93 N. W. 500. The particular meaning, or whether the word involves an element of mens rea, depends somewhat upon the history of the particular offense. Section 559 of the Penal Code, [7] however, provides: “First: The word ‘wilfully,’ when applied to the intent with which an act is done or omitted,, implies simply a purpose or willingness to commit the act,, or make the omission referred to.” This definition involves no idea of mens rea and discards a criminal intent if the act is consciously done. We may question, as in People v. Rivera, infra, whether in every case, when the history of the enactment shows a different construction, the Legislature intended to vary such a construction by the enactment of section 559. 25 R.C.L. 992. California has the equivalent of section 559 and yet in Calvin v. Gualalia Mill Co., 98 Cal. 270, where the statute used the word “wilfully” the Supreme Court of that State decided a criminal intent was necessary to be proved. On the other hand, in Coffey v. Superior Court, 147 Cal. 525, 82 Pac. 75, and Larue v. Davies, 8 Cal. App. 750, 97 Pac. 903, both more or less in pari materia with this case, a different idea was indicated. In the former case the court quoted with approval from Mechem on Public Officers as follows: “Misconduct in office does not necessarily imply corruption or criminal intention. The official doing of a wrongful act, or official neglect to do an act which ought to have been done will constitute the offence, although there was no corrupt or malicious motive.” In People v. Rivera, 25 P.R.R. 569, a jailer was prosecuted for allowing prisoners to be abroad and we held, following precedents, that when a jailer voluntarily or negligently allows a prisoner to go at large he is guilty of an offence. The information in the instant case charged that the defendant failed to open books for a loan of $6,000 authorized by the municipality as required by the rules formulated by the Auditor of Porto Rico; that he transferred $662.65 from a particular account to pay current bills without due authority; that he transferred $250 from a $6,000 appro [8] priation similarly; and also that lie issued out $839.78 for current expenses -without authorization, all wilfully. These acts, or some of them at least, were violations of official duties within the purview of section 93, supra. We are not attempting to pass upon the sufficiency of each individual count of the four charged, as such matter was not argued before us. As to the question of proof, there was a stipulation admitting some or all of the outside facts charged and there was evidence tending to prove them. Under these conditions there was evidence tending to prove all the charges. The order must be reversed and the case sent back for proceedings not inconsistent with this opinion.