People v. Díaz Breijo

per curiam : The prosecuting attorney filed the following information against appellant: “The prosecuting attorney files information against René Diaz Breijo, resident of 421 Morel Campos Street, Barrio Obrero, Santurce, Puerto Rico, for a violation of § 428 of the Penal Code of Puerto Rico (Felony) committed as follows: “Said defendant: René Diaz Breijo, on or about October 20, 1964 and in San Juan, P.R., which is part of the jurisdiction of the Superior Court of Puerto Rico, San Juan Part, illegally, willfully, and maliciously, and with criminal intent, had in his possession and control materials and tools used in counterfeiting dollar bills, legal currency of the United States of America.” After a trial by jury he was found guilty and sentenced to serve from 3 to 8 years in the penitentiary. — 63 — On appeal appellant assigns the commission of several errors. In one of them he points out that the facts alleged in the information do not constitute an offense, among other reasons, because it is not alleged that defendant, knowingly, had in his possession material and tools made use of in counterfeiting dollar bills. (Italics ours.) Section 423 of the Penal Code (33 L.P.R.A. § 1651) provides: “§ 423. —Posesión de Instrumentos Para Falsificar. “Toda persona que hiciere, o a sabiendas tuviere en su poder algún cuño, plancha o cualquier aparato, papel, metal, máquina, u otra cosa, utilizada en la falsificación de moneda acuñada de curso legal en Puerto Rico, o en falsificar oro en polvo, oro o plata en barras, pasta, grano o pepita, o en falsi-ficar billetes o documentos de crédito, será castigada con pena de presidio por uno a quince años; destruyéndose todos los cuños, planchas, aparatos y todo papel, metal o máquina, em-pleados en dicha falsificación,” 1 We have seen that the information does not allege that appellant, knowingly, had in his possession the materials made use of in counterfeiting. On previous occasions we have held, and that is the doctrine in force, that it is necessary to allege in the information that the accused acted with knowledge when that is an essential ingredient of the offense charged. The People v. Vázquez, 22 P.R.R. 424 (1915); 4 Wharton, Criminal Law and — 64 — Procedure, § 1774; 20 C.J.S. 136, § 29.2 The Solicitor General sustains that the omission of the allegation “knowingly” in the information is cured by the allegation that the possession of the materials was willful, malicious, and with criminal intent. In People v. García, 9 P.R.R. 391 (1905), we said: “Conceding that the words ‘maliciously and criminally’ might satisfy the requirement of the statute with respect to a criminal intent, yet these words do not dispense with the necessity of charging that the defendant knew the coin was counterfeit. The words ‘maliciously and criminally’ are far too general to do away with the necessity of charging the defendant with such knowledge. A case in point is the United States v. Carll, reported in 105 U.S., at page 611.” In People v. White, 34 Cal. 183, cited by the Solicitor General, contrary to what occurs in this case, knowingly was alleged in the indictment. It was decided in said case that to justify a conviction under said indictment, there must be proof of a criminal intent as well as a known possession. Therefore, said case does not support appellee’s argument. Since the facts alleged in the information do not constitute offense, the judgment appealed from will be reversed, and another rendered dismissing said information. Mr. Justice Pérez Pimentel delivered a concurring opinion in which Mr. Justice Hernández Matos and Mr. Justice Santana Becerra agree. Mr. Justice Rigau delivered a dissenting opinion in which Mr. Justice Ramírez Bages and Mr. Justice Torres Rigual concur. — 65 — — 0— Footnotes [1] In the English text which is the one that prevails, said section reads: “§ 423. —Having in Possession Tools for Counterfeiting. “Every person who makes, or knowingly has in his possession any die, plate, or any apparatus, paper, metal, machine, or other thing whatever, made use of in counterfeiting coins current in Puerto Rico, or in counterfeiting gold-dust, gold or silver bars, bullion, lumps, pieces, or nuggets, or in counterfeiting bank notes or bills, is punishable by imprisonment in the penitentiary not less than one nor more than fifteen years; and all such dies, plates, apparatus, paper, metal, or machine, intended for the purpose aforesaid, must be destroyed.” Although there are discrepancies between the two texts by reason of its translation from English into Spanish, both texts are identical as to the element of “knowingly.” [2] There is no doubt that the evidence established that defendant-appellant had criminal knowledge of the offense.