People v. Coll

Mr. Chief Justice Hernández delivered the opinion of court. In the District Court of Gf-uayama the fiscal of said court, on February 3, 1911, filed a sworn accusation against Andrés Coll y Drós, charging him with the crime of murder, committed as follows: “That the said Andrés Coll y Drós, on February 2, 1911, in the city of Q-uayama, within said judicial district, illegally and wilfully, with malice aforethought, and with deliberate and fixed purpose,, and showing a perverted and malignant heart, killed Antonio Castillo Alvarez by firing a revolver at him three times and inflicting upon him three wounds of a serious nature which caused his death, he having lain in ambush for him for a long time and having treacherously attacked him in the back.’ ’ The case was tried before the court and a jury on the 28th and 29th of April of said year, and after hearing the evidence-introduced, the allegations of the parties, and the instructions, of the court to the jury, a verdict was brought in finding the defendant guilty of the crime of murder in the second degree. Before judgment was pronounced by the court a motion for a new trial was filed by the attorney for the, defendant, alleging as errors committed in the course of the trial the-following: “(a) In disallowing the challenge for cause against the juror, Angel Pacheco, who repeatedly testified that he knew that the defendant had committed the crime with which he has been charged and that he had formed an opinion as to the guilt or innocence of the-defendant. “(b) In making the following' remarks when the court disallowed the challenge for cause against Pacheco: ‘¥e all understand that the defendant committed the crime charged, but the question for the 12 members of the jury is as to how it was committed, and whether it was done with malice, the circumstances thereof, and everything-else.’ “(c) In disallowing the challenge of the juror, Federico Ama-deo, notwithstanding the fact that this juror had testified several. — 357 — times that in case of doubt be would not give the defendant the benefit of the same, and notwithstanding, also, that he had formed an opinion of the guilt of the defendant. “(d) In disallowing the challenge of the juror, Jorge Grab., in spite of the manifest, partiality of the same against the defendant. “(e) In not striking from the record the testimony of the witness for the prosecution, Manuel Ortiz, as requested by defendant, upon the ground that said testimony was given without the witness being sworn; wherefore the court then ordered'that he should be sworn, and he then stated that what he had testified was the truth, but he was not required to give his testimony all over again, as should have been done in order to make him liable in case of perjury.” The following decision was made by the court upon the motion for a new trial filed by the defendant: ‘ ‘ The petition for a new trial filed by counsel for the defendant in this ease is denied on the following grounds: 1. Because the court does not consider that error has been committed in disallowing the challenge for cause of the juror, Federico Amedeo. 2. Because the court does not consider, either, that any error has been committed in disallowing the challenge for cause of the juror, Angel Pacheco. 3. Because it does not consider that any error has been committed in disallowing the challenge of the juror, Jorge Grau. 4. Because the court- has not committed any error in allowing the witness for the prosecution, Manuel Ortiz, who had testified without being sworn, to come into court and take the oath under which he stated that what he had already testified was the truth, the whole truth, and nothing but the truth. It appears from the record that said witness, through somebody’s negligence, did not take the oath jointly with the other witnesses testifying in said cause and that he testified without being sworn; but the attention of the court having been called to that fact before the case was submitted to the jury, and considering that it was a negligence that could be corrected, the court allowed the witness to come into court and to take the oath already referred to. Wherefore, no other reasons existing to the mind of the judge upon which the motion for a new trial filed by the attorney for the defendant in this case could be granted, it is, and is hereby, denied, and the defendant is required to appear before this court to-morrow, the 16th instant, to receive his sentence upon the verdict of guilty brought in by the jury. Guayama, May 15, 1911. H. P. Leake, District Judge. ’ ’ — 358 — Judgment was pronounced on the date set for it, and the defendant was condemned to life imprisonment in the penitentiary at hard labor, with costs. On May 17 the attorney for the defendant took an appeal from the judgment, and on the 22d of said month appealed from the decision denying the motion for a new trial. On said May 17 counsel for the defendant requested from the court an extension of 20 days from the date of the delivery to him of the record of the case by the stenographer to present a statement of the case for the appeal taken to the Supreme Court from the judgment rendered and from the order denying the motion for a new trial. That extension was granted, as requested by him, by an order entered on the same day and signed by H. P. Leake, acting district judge. The record contains a bill of exceptions which does not show by whom drawn because it is not signed by any attorney, and ends with the following words: “Approved, H. M. Hutch-ison, Judge. ’ ’ Said bill of exceptions bears no date. The record also contains a statement of the case signed by Francisco Cervoni and Cay. Coll y Cuchí, attorneys for the defendant, which statement has the following note: “Approved November 17, 1911. H. M. Hutchison, District Judge.” As may be seen, both the bill of exceptions and statement' of the case were approved by the district judge of Guayama, H. M. Hutchison, who took no part in this trial. His appointment as judge of the District Court of Guayama was made on July 1, 1911, to take effect September 1 of the same year, and on this latter date he took charge of his office. Now, then, the attorney for the defendant and appellant bases his appeal on the ground that some challenges of jurors for cause were disallowed, and upon the refusal of the court to strike from the record the testimony of the witness, Manuel Ortiz, who had testified without being sworn and who was hot required to testify again under oath as the court thought it sufficient to correct this error that the witness should be sworn, — 359 — and stated that what he had testified to was the truth. These also are the foundations of the petition for a new trial, which was denied by the court below. Our question now is: Can we examine the grounds of this appeal based upon the bill of exceptions and the statement of the case contained in the record and which were not approved by the trial judge? To this question we answer in the negative. Section 296 of the Code of Criminal Procedure provides that exceptions may he taken by either party to the decision of the court or judge upon a matter of law, and on other grounds for granting or refusing a motion for a new trial; and section 297 provides for two further grounds of exception different from the four grounds mentioned in section 296. In order to consider and decide on appeal the exceptions referred to in the foregoing sections, they must be included in a bill of exceptions, which, in accordance with the provisions of section 298, have to be approved and signed by the trial judge. Said section ends as follows: “Si el juez que presidiere el juicio cesare en el ejercicio de su cargo antes de presentarse o resolverse la declaración de excepciones, esto no será óbici para que resuelva dichas excepciones, y si dejare de hacerlo, podrá la parte irse en al-zada a la Corte Suprema para que la. resuelva, según lo pres-crito en este artículo.” (If the judge who presided at the trial ceases to hold office before the bill of exceptions is presented or passed upon, he may, nevertheless, pass upon said exceptions, and if he should fail to do so the party may apply to the Supreme Court to pass upon them, in accordance with the provisions of this section.) The paragraph hereinabove transcribed is not a true translation of the English text, which reads as follows: “If the judge who presided at the trial ceases to hold office before the bill is tendered or settled he may, nevertheless, settle such bill or the party may, as provided in this section, apply — 360 — to the Supreme Court to prove the same,” and its literal translation would be as follows: “Si el, juez que presidió el juicio cesa en su cargo antes de que el pliego de excepciones sea presentado o ■aprobado, puede, sin embargo>, aprobar tal pliego>, o la parte puede, según se dispone en este sección, pedir a la Corte Suprema que lo apruebe.” In view of such a conclusive provision of the law the'Judge of Guayama, H. M. Hutchison, who approved the bill of exceptions, did not have jurisdiction to approve it because that jurisdiction is only granted by law to the judge who presided at the trial or to this Supreme Court, but never to the successor in office of the trial judge. ■ What has been said about the bill of exceptions is also applicable to the statement of the case. We do not think that the action of Judge Hutchison, of Guayama, can be upheld by the provisions of rule 65 of the Rules of this court, which were promulgated for civil cases by virtue of the powers conferred upon this Supreme Court by section 219 of the Code of Civil Procedure. In criminal cases the statute should control, which we can neither repeal nor amend. It cannot be argued that the order refusing a new trial as a part of the record nor the facts stated therein by the judge who presided at the trial may serve as a foundation for this court to pass upon the exceptions taken, because the law specifically provides the manner and form of presenting said exceptions ■ to our consideration, and the rules of procedure, which are of a public character, cannot be left to the option of the parties to be complied with. It is true that the bill of exceptions and the statement of the case, approved by a judge who did not preside at the trial, have been submitted to us without any objection on the part of the fiscal or the defendant, but that lack of objection cannot bind us to accept them as legal nor give them a force which they lack. The bill of exceptions and the statement of the case must — 361 — be approved and signed by tbe judge. In tbe present case there was a judical order approving them but tbe same was signed by a judge who was without jurisdiction to approve them, and tbe result is tbe same as if they bad never been approved. Tbe bill of exceptions and tbe statement of tbe case contained in tbe record are documents which lack authenticity, and therefore they cannot serve us as a basis to pass upon tbe grounds of this appeal. We have examined tbe accusation and tbe judgment but we cannot examine tbe instructions to tbe jury because they are not authenticated by tbe signature of tbe judge; and we find that tbe accusation is well made and contains all tbe essential elements of tbe crime of murder in tbe second degree, of which tbe defendant was found guilty by tbe jury, and we also find that the punishment inflicted was strictly within tbe bounds of law. The' appeal should be dismissed and tbe sentence appealed from, affirmed. Affirmed. Mr. Justice Aldrey concurred. Justices Wolf and del Toro delivered a separate concurring opinion. Mr. Justice MacLeary dissented.