San Juan, Puerto Rico, November 18, 1965
Appellant was charged with a violation of § 29 of the Narcotics Act of Puerto Rico, No. 48 of 1959. The information charged him: (1) that on May 10, 1963, “he had in his possession and control the narcotic drug known as heroin”; (2) that he sold the narcotic drug known as heroin; and (3) that he concealed and transported the narcotic drug known as heroin.
*805The evidence in the record to support the information is the following: appellant came across an undercover agent whom he knew as being a drug addict, and asked the latter if he was going “to cop” heroin, that is, to score stuff, to which the agent answered that he was going to score a bag, meaning that he was going to buy a deck of heroin. Appellant told him that the man was Chiqui Kercadó. The agent knew Kercadó and went with appellant to see him, and asked Kercadó if he had stuff. Chiqui answered that he did, but that he did not know him. He then told him to deliver $4 to Waldemar, appellant herein. That occurred in an alley of the ward of Jurutungo in Hato Rey. “District Attorney:
Q. What did you do?
A. I delivered to Waldemar the $4 which I have mentioned.
Q. Who was the first to speak there about $4?
A. Chiqui.
Q. Why did he mention those $4?
A. That was the cost of the deck.
Witness:
I delivered the $4 to Waldemar; in my presence Chiqui delivered a deck supposedly of heroin to Waldemar and Waldemar gave it to me. [Rec. 13-14.]
Defense:
Q. Witness, the truth then was that you carried out the transaction, was Chiqui the one who had the heroin?
A. Chiqui.
Q. Pardon me, the one who had that small envelope which he gave you was Chiqui?
A. Yes, sir.
Q. And what did they tell you? What did Chiqui say, that he did not trust you?
A. That he did not know me.
Q. That was why the transaction was made that way, because he said that he did not know you?
A. That he did not know me.
*806Q. Then the deck of that small envelope, Chiqui delivered it to Waldemar?
A. To Waldemar.
Q. And Waldemar in turn to you?
A. To me.
Q. And that was at what time, witness?
A. That was at 12:30 p.m.” (itec. 16-17.)
Section 29 of the Narcotics Act prohibits, among other things, the holding, possession, conveyance, etc., of a narcotic drug. Section 3 provides that no person shall manufacture, possess, control, sell, etc., narcotic drugs.
We do not maintain that the term possession in this statute is the most severe of the civil possession. It may he a holding. According to the ruling and statements in the opinion of the Court, the statute has used the term in its common and ordinary meaning, but even in such common and ordinary meaning the possession has, at least, a certain minimum attribute which is entirely lacking in the record of this case.
Appellant was charged in the information that “he had in his possession and control the narcotic drug known as heroin.” The most general and less strict definition of the term possession is “to have a thing in one’s possession.”1 Appellant was therefore charged that he had in his possession the drug at the time of the occurrence of the facts. The operation carried out with unity of act motivated by a circumstance which arose there, belies, in my opinion, the imputation, taking it in the minimum sense which may mean something. There is no other evidence nor other collateral evidence than the act itself. The accusation is not one of conspiracy, nor is there evidence indicative of an interested joint possession. Nothing in the record shows that appellant *807had a personal interest in the sale. The seller and the agent used their hands as an incidental vehicle of the mutual promises in what was one single act of sale. This explains why the trial court, as a court of law, acquitted him of the charges of sale and transportation. For the same reasons it seems specious to us that it should convict him, within this transaction, of “having in his possession” the drug.2
In State v. Reed, 170 A.2d 419 (N.J.), a leading case, it is said that the term possession, as used in criminal statutes, ordinarily signifies intentional control of a designated thing accompanied by knowledge of its character. See the annotation following this case in 91 A.L.R.2d 810, where the illustrative ■ cases on the term possession in narcotics are analyzed.3
The cases are agreed that the term possession in this statute contains some quantum of control by the defendant. In view of the disclosures of the record, I cannot agree that it was proved, with legally sufficient evidence, that appellant had in his possession and control the drug known as heroin, and I therefore dissent from the opinion of this Court.
Casares, Diccionario Ideológico, 1963. Cabanellas, Diccionario de Derecho Usual, 1954. Vox, 1953. La Real Academia and Webster, 1961, are more strict.
Perhaps the record would present more collateral elements for a sale —-appellant as coauthor — in the light of the definition of sale (offer of the drug) of § 2 of the statute.
The facts in United States v. Gregory, 309 F.2d 536 (2d Cir.), cert. denied, 376 U.S. 973, apart from the fact that the possession was merely evidentiary matter to presume the commission of another offense, are different in my opinion. See Hernández v. United States, 300 F.2d 114, 117 et seq. (9th Cir.). The situation in Sutton v. State, 343 S.W.2d 452 (Texas), is also somewhat different as a whole. Apart from the short time that defendant had the drug in her hands — the time is not the controlling factor — there are other elements of judgment in the evidence. See, on reconsideration, the emphasis placed on the fact that defendant had sold heroin to the agent on other occasions. The facts in Fuller v. State, 380 S.W.2d 619 (Texas), and Huerta v. State, 390 S.W.2d 770 (Texas), which follow Sutton, are likewise different. See, in general, 33 Words and Phrases, Cum. Ann. Pocket Part — “Possession, Narcotic.”