concurring.
San Juan, Puerto Rico, March 18, 1969
I have concurred with the Per Curiam opinion rendered in this case for the reasons stated therein and others which I shall state hereinafter.
*71My colleague, Mr. Justice Rigau, has rendered a dissenting opinion where he states the following: The opinion of the Court reverses the judgment because the information did not allege that defendant possessed said materials “knowingly.” But the information stated that the defendant possessed them “willfully, and maliciously, and with criminal intent.” As it may be seen, the question raised is whether the latter words are equivalent to saying that defendant possessed said materials “knowingly.”
With the due respect to the opinion of my colleague Justice, I believe that that is not the question raised. If it is alleged that defendant possesses the materials willfully and maliciously, and with criminal intent, there is no doubt that he is charged with the possession knowingly, that is, that he did not ignore that he possessed those materials. What the information fails to allege, and what makes it deficient, is that defendant possessed said materials, knowing that they could be made use of for the purposes prohibited by law. For example, if an information for the violation of § 438 of the Penal Code charges “A” with having bought from “B”, for his own profit, willfully and maliciously, and with criminal intent, a revolver which had been stolen from “C”, the information would be insufficient because one of the essential ingredients of the offense charged is that defendant bought said revolver knowing that it had been stolen from “C”; and said element is lacking in the information. We ask, is said element included in the words “willfully and maliciously and with criminal intent?” Obviously, it is not. The willful, malicious act with criminal intent may be applied to defendant’s profitable purpose, and even so, it does not constitute the offense prescribed by § 438 of the Penal Code; or it may be applied to another purpose, like that of buying the revolver with malice and criminal intent to utilize it in the commission of a murder. When the specific knowledge of a fact (knowingly) is an essential element of the offense, said *72knowledge must be alleged in the information either using the words of the statute or other words conveying the same meaning. It is a well-known fact that the information need not follow strictly the words of the statute; but it is also well known that the essential elements of every offense must be alleged in the information and precisely not with general words which fail to state one of those elements. The information is the notice of the offense charged against defendant, the statement of the facts charged against him so that he may defend himself, which, in turn, is an indispensable requisite of the due process of law. Hence, rules have been adopted in relation to the elements which must be alleged, irrespective of the language • used, provided the latter expresses said elements.
The dissenting opinion cites several cases decided by federal courts to support the theory that the words used in the information need not necessarily follow strictly the words used in the statute. That needs no discussion.. See Rule 35 of the Rules of Criminal Procedure; People v. Miranda Malta, 88 P.R.R. 805, (1963); People v. Trinidad Fernández, 93 P.R.R. 877 (1967). .
t. The dissenting opinion gives me the impression that the question concerning the sufficiency of- the information. .is decided on the basis of the evidence which is summarized at the beginning of said.opinion.
. If the information had alleged that defendant had manufactured ■ counterfeit dollar bills with the' aforementioned materials,.there is no doubt that defendant would be charged with the knowledge that the materials in his possession were utilized to. manufacture counterfeit ..bills, .because if the manufacture of, counterfeit bills with said tools or materials is charged he is being charged with knowing that they were utilized for the manufacture of counterfeit bills... But that appears.from the evidence.and not from the allegations in the information. . . . , •
*73In the case of Wheatley v. United States, 159 F.2d 299, the indictment did not contain the allegation of “knowingly” which was an essential element of the offense. The sufficiency of the indictment was sustained because it was alleged that defendant unlawfully seized, kidnapped and held Denzil Wilson for the purpose of forcing the latter to furnish transportation to defendant from West Virginia to Ohio, and transported said Denzil Wilson from West Virginia to Ohio. That necessarily implies the element of “knowledge” since it was alleged that defendant transported Wilson from one state to another.
In the cases cited in Wheatley, supra, it is held that although the word “voluntarily” is an essential element of the offense, its omission in the information does not render the latter defective, provided the facts alleged necessarily imply voluntariness. We do. not argue the correctness of this rule.
There are other cases which, somehow, discuss the point under consideration. We shall analyze them.
People v. Odom, 6 P.2d 206, is. apparently the. leading case which sustains the doctrine that to do a thing “willfully” is to do it “knowingly.” Said case dealt with an information charging the violation of the Vehicle Code consisting in that defendant having struck a person with his automobile he did not stop to render assistance to him. The information charged that defendant willfully and unlawfully was driving a motor vehicle on a public highway and failed to stop immediately such motor vehicle when an accident occurred causing injuries and death to- another person and he. did not render aid as provided by law.
■ It was contended that the information was insufficient because it did not specifically allege that the defendant knew his machine had struck the deceased. It-was'.said that to charge that the defendant drove the machine in such a manner as to cause injuries and death to another person, in effect *74alleges that he, knowingly, drove in such a manner as to cause the injury or death of the individual run over.
In Odom, People v. Calvert, 269 Pac. 969 is cited, which in turn cites People v. Sheldon, 9 Pac. 457, to the effect that “to do a thing willfully is to do it by design with set purpose;” and People v. Swiggy, 232 Pac. 174, to the effect that “To do a thing willfully is to do it knowingly.” This concept is brought in turn from the case of Fry v. Hubner, 57 Pac. 420.
The Fry case does not involve a criminal action. It was a civil action for damages on the ground that defendant herded his. band of sheep upon plaintiff’s land. It was sustained that the complaint did not state sufficient facts, and in the course of the opinion it is stated that the word “willfully” is the equivalent of “knowingly.” No authorities are cited or situations analyzed where said statement may be correct, as it actually is on certain occasions, but not always, as we shall see further on.
People v. Loeper, 334 P.2d 93. In this case the sufficiency of the information was not challenged. Defendant challenged the correctness of an instruction given to the jury as to what constituted intent and knowledge. It was said that an essential element of the offense charged against defendant (unlawful sale of narcotics) was intent; that the intent to do a forbidden thing constituted the criminal intent, and that the law required that to be guilty of crime one must intend the conduct that fits the description of the crime and that the defendant must engage in that conduct willfully and knowingly. The Odom case, already commented on, and that of Swiggy, are cited as case law. The correctness of the instructions was sustained because, in effect, the jury was told that if defendant had sold a substance without knowing that it was a narcotic, he could not be convicted.
People v. Agnew, 176 P.2d 724. The point discussed there was whether omitting in the indictment the word “willfully,” later added by amendment, rendered the information insuffi*75cient. The ease involved an indictment for perjury committed upon verifying the allegations of a complaint for an injunction. Insofar as pertinent to the point under consideration here, it was stated in said case: “Appellant’s knowledge of the falsity of his charges [the indictment had alleged such knowledge] and his deliberation in making the affidavit are both implied in the word ‘willfully’ used in the indictment, and may be assumed from the fact that appellant appeared before an officer and solemnly swore to the complaint.” And as case law it then cites the case of Leonard v. Superior Court, 48 P.2d 687. The latter case states that defendant had acted “willfully” because it was thus inferred from the facts alleged in the sense that defendant “made and caused to be made the report in question; and that they caused it to be filed with the building and loan commissioner after they had verified it.”
Lamb v. State, 293 P.2d 624. This is a case of abandonment of minors. It is stated therein that the allegation that one willfully committed an act is the same as that he knowingly committed the act. Bohannon v. State, 271 P.2d 739, another case of abandonment of minors, is cited as authority. It repeats that “knowingly” and “willfully” have the same meaning for the purposes of the child desertion statute. It relies on the case of Hutchman v. State, 66 P.2d 99, which, in turn, cites as authority 8 Words and Phrases (First Series). One of the definitions contained in said work states that in common parlance “willfully” is used in the sense of “knowingly,” as distinguished from accidental or involuntary. This set of definitions is based on cases, many of which we have analyzed.
In United States v. Okin, 154 F.Supp. 553, defendant was accused of causing to be made a false document and of conspiracy. The indictment used the word “knowingly.” It did not use the word “willfully.” It was stated that the facts recited alleged “guilty intent.” Finn v. United States, 256 *76F.2d 304. A Regulation provided: “No person, while on the airport or in any building located on.the airport, shall.. . use profane or vulgar language.” There, was another statute which provided: “Any person who knowingly and willfully violates any rule or regulation prescribed under this Act shall be guilty- of misdemeanor.” The information alleged that defendant “did unlawfully and- without just cause or excuse, and in a riotous or disorderly manner use loud and profane language.” It is decided that this language is equivalent to Stating that defendant performed the act as intended' by the statute, that is, “knowingly and willfully.”
In Rumely v. United States, 293 Fed. 532, it is decided that “willfully” cannot be omitted from an indictment when the term is part of the statutory definition of the offense, but where the facts alleged necessarily import “willfulness”, failure to use the word is not fatal to the indictment. It was also stated in said case that for the adequate protection of the rights of a person accused of crime, an indictment must be declared invalid unless it clearly and exactly sets forth the crime charged.
In Nickell v. United States, 161 Fed. 702, the indictment for conspiracy to induce certain persons to commit perjury contained the phrase “knowingly done” although it. did not contain the word “willfully.” The indictment used the phrases “unlawfully, willfully, and corruptly.” The court, without considering whether said phrases were . applicable to the subsequent allegations of the indictment decided that the facts alleged necessarily import “willfulness.” It was alleged, although in other words, that defendants had acted willfully.'
United States v. Amorosa, 167 F.2d 596, dealt with an indictment for theft of. freight in interstate commerce. It was argued that the indictment was defective because there was no charge that the acts specified were “feloniously” and “knowingly”, done. The sufficiency of the indictment was sus*77tained because the applicable statute did not contain such phrases in the definition of the offense.
We do not question that according to the text of an information the use of the word willfully may be equivalent to “knowingly” or vice versa. It all depends on the facts alleged and the provisions of the penal statute which creates the offense.
We shall offer a simple example. If it is stated that a person willfully boarded a taxi in San Juan to go to Rio Piedras, there is no doubt that said person knowingly boarded said taxi. If the statute should punish the act of utilizing the services of a taxi, knowing that said vehicle failed to have the Public Service Commission license, an information alleging only that defendant willfully utilized the services of .said taxi to go from San Juan to Río Piedras would be insufficient. What the law would- punish would be that the defendant would use said taxi knowing that it lacks a license. The use of the word willfully could not substitute the word “knowingly.” -It is so because if defendant has no knowledge that the taxi lacked a license, he would not incur an offense.
In the majority of the cases analyzed the very facts recited in the information, served- as basis to- necessarily infer that defendant had acted .“knowingly” where that was an essential element of the offense, although it was hot alleged in those same words.
If in the present case the information had alleged that defendant had counterfeited dollar bills making use of the materials and tools which he had in his possession, there is no doubt that, from said fact it could be inferred that he had knowledge that said materials and tools were made use of in counterfeiting dollar bills; but it was not so alleged.
I conclude that, in my opinion,, as stated in the Per . Curiam opinion, the facts charged in the information do not constitute an offense.