Commonwealth v. Superior Court of Puerto Rico

Mr. Justice Pérez Pimentel delivered the opinion of the Court. In an action for nullity of confiscation of a motor vehicle filed by Pedro Ángel Torres against the Commonwealth of Puerto Rico, the Superior Court of Puerto Rico made the following findings of fact: “2.) On and before September 24, 1963 plaintiff was the owner of a motor vehicle, a GMC Panel Delivery, license No. C336-371 which was confiscated on said date because on the 22nd of that month it was used to bear, transport, carry, and transfer material of the illegal game of the bolita. “3.) The vehicle in question has been used since 1961 by Nicolás Ortiz, under a lease contract with plaintiff for a weekly rental of $40. Ortiz is the owner of a bakery in Coamo since 1958 and has used the vehicle to sell and distribute bread. According to the terms of the contract, Ortiz was bound to furnish and pay the driver for the vehicle and had complete supervision thereof. The cost for tires, gasoline, and repairs was assumed by Ortiz. “4.) Ortiz’ bakery is situated on No. 9 Dr. Veve Street, Coamo. On September 1963 the driver of the leased vehicle was Federico Rodríguez Zayas, who received one cent for each pound of bread sold. Rodriguez in turn sold Ortiz’ bread in the towns of Villalba and Orocovis and their barrios. The business between [690] Rodríguez and Ortiz began in 1958. When Rodriguez was unable to come, another person sent by him drove the pickup. It was his practice to load the pickup and take it at night to Rodriguez’ house to facilitate the early sale on the following day. On September 22, 1963 the pickup was driven by Rodriguez to sell bread in Orocovis and Villalba. “5.) In the afternoon of September 22, members of the police force were going in the private car of police Carlos J. Torres, of Villalba, towards a place known as Los Pinos. They saw the pickup No. C336-371 parked almost in the middle of the road. The police, among them José Rios, knew Rodriguez and knew that he was engaged in the sale of bread. When they saw the vehicle they stopped behind it and went to see what was the matter. When Rodriguez saw Rios he recognized him and went on his way throwing some papers to the ground which upon being picked up by the police appeared to be a list of numbers of the bolita game. “6.) Plaintiff leased his pickup to Ortiz for the sale of bread exclusively. Ortiz in turn permitted Rodriguez to use it for the sale of bread and had forbidden him to use it for any other purpose. He never had knowledge nor information that Rodriguez was engaged also in the bolita game or that he used the vehicle for that purpose.” “In the light of these facts [the trial court concluded] it may be reasonably inferred that the case falls under the exception which is recognized to protect the right of a third innocent. Ochoteco v. Superior Court, C-63-1, decided June 5, 1963.” Consequently, said court entered judgment granting the complaint and ordering the return of the vehicle confiscated, or in default thereof, to pay plaintiff its value of $1,800. We issued a writ of certiorari to review said judgment. The opinion of the majority of this Court is to the effect that the rule still prevailing as to the propriety of confiscations when the rights of third parties are involved, is that enunciated in the case of General Motors Acceptance [691] v. Brañuela, 61 P.R.R. 701 (1943). It was so established in the separate opinion of Mr. Justice Blanco Lugo in Meléndez v. Superior Court, 90 P.R.R. 639, 659 (1964). Thus, in this jurisdiction the prevailing doctrine is that the confiscation proceeding is directed against the vehicle itself and not against its owners, and that consequently, the rights that upon said vehicle could be had by innocent third parties are not protected except in those cases in which it is proved that the possession of the vehicle has been obtained by the violator without the express or implied consent of the owner or of third innocent parties, as happens when the vehicle has been stolen, and if the owner or third innocent party directly or indirectly has placed the vehicle in the possession of the violator or of the person under whose orders he acts, the rights of the owner or of the third innocent party, under such circumstances, run the risk that goes along with whatever use to which the one in possession dedicates the vehicle. It was recently decided in Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965), that since the purpose of the confiscation proceeding was to punish for the commission of a public offense, said proceeding has a punitive character and is of a quasi-criminal nature, and therefore, evidence obtained in violation of constitutional guarantees is not admissible in said proceeding to establish the commission of the offense which gives rise to the violation. However, in said case the rule concerning the rights of third innocents is not discussed. If we seek to assimilate criteria of criminal intention in the case of third parties, we would be granting a blanket immunity to offenders of the law who by means of a clever strategy would be in condition to violate it by employing vehicles belonging to others without the risk of confiscation. Furthermore, it would lead to the untenable position that the third party (owner of the vehicle) would have blanket immunity if within the proceeding of confiscation it [692] would be necessary to establish his criminal liability within a public offense committed by another person. The trial court erred in applying to this case the ruling of Ochoteco, supra. The Ochoteco case fell within the exception indicated in Brañuela, since the facts stipulated therein allowed the conclusion that the violator had committed the offense of larceny of use. The situation of facts is different in this case. The offender, Rodriguez, was an agent or employee of the lessee of the confiscated vehicle. He committed criminal acts while he conducted the vehicle to sell bread in Orocovis and Villalba. The place where he committed the offense was on his route. The possession of the vehicle by Rodriguez was at that time authorized by the lessee of the vehicle. There is no basis to conclude that Rodriguez had committed the offense of larceny of use of the vehicle at the time of violating the Bolita Act. Nor is the third party protected by the fact that Ortiz had prohibited Rodriguez to use the vehicle for other purposes, nor the fact that he was not aware that Rodriguez used the vehicle in connection with the prohibited game of bolita,1 since the unauthorized use of a vehicle by an employee does not protect the owner of the vehicle. Metro Taxicabs v. Treasurer, 73 P.R.R. 164 (1952). The intervener argues that the facts of this case allow the conclusion that Rodriguez committed the offense of embezzlement established in § 450 of the Penal Code (33 L.P.R.A. § 1726). We do not agree even when the commission of said offense constitutes another exception to the Brañuela rule. The Spanish version of said section provides: “Todo dependiente, agente o sirviente de alguna persona, que frau693 dulentamente empleare en su propia utilidad, u ocultare con fraudulenta intención de apropiárselos, cualesquiera bienes confiados a su custodia en virtud de su empleo como tal dependiente, agente o sirviente, será culpable de abuso de confianza."* Relying on the preceding language the intervener maintains that Rodriguez employed the vehicle for his own benefit by transporting therein the list of numbers of bolita without the authorization or knowledge of the intervener, for which reason Rodriguez committed the offense of embezzlement and that it establishes an exception to the Brañuela rule. The English text of said section, which is the prevailing version,2 gives a clearer idea of the meaning of the phrase, “que fraudulentamente empleare en su propia utilidad.'” In English the phrase used is “who fraudulently appropriates to his own use.”3 This means that the clerk, agent or servant, should fraudulently appropriate to himself the use of the property entrusted to his custody by virtue of the employment as such clerk, agent or servant, in order to commit the offense of embezzlement. That is to say, what really constitutes this offense is that there has been a conversion of the property by virtue of which the clerk, agent or servant appropriates it to himself. See Blanco v. People, 25 P.R.R. 670 (1917); People v. Calderón, 18 P.R.R. 568 (1912). In this case Rodriguez did not appropriate to himself for his own benefit the vehicle confiscated. It cannot be main [694] tained, therefore, that he committed the offense of embezzlement provided in § 450 of the Penal Code. The judgment entered by the Superior Court will be reversed and another entered dismissing the complaint. Mr. Chief Justice Negrón Fernández did not participate herein. Mr. Justice Belaval, Mr. Justice Hernández Matos, and Mr. Justice Santana Becerra dissented in separate opinions. —0— Footnotes [1] The question of whether the vehicle was seized while it was being used in connection with the bolita game is not in issue in this case. It all tends to indicate that its driver also used it to sell bolita numbers. [*] See note 3. [2] People v. Palóu, 80 P.R.R. 351, 356 (1958); People v. Belardo, 50 P.R.R. 491 (1936); People v. Pelliccia, 53 P.R.R. 563 (1938). [3] The whole text reads as follows: “Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant is guilty of embezzlement.” (33 L.P.R.A. § 1726.)