People v. Borque

Me. Chief Justice Del Tobo delivered the opinion of the court. The District Attorney of Humacao submitted to the grand jury an indictment charging Fulgencio Borque and Pablo Borque with having unlawfully and maliciously killed Cirilo Carrillo on January 5, 1923, and on March 28, 1923, after inquiring into the matter, the grand jury endorsed the indictment as “Not a true bill.” On the same day the [93] court entered the following: “Judgment. The grand jury having returned the indictment in this case as not a true bill, the court orders its dismissal and also the cancelation of the bail given by the defendants for their provisional liberty, reserving' to the district attorney the right to submit the indictment to another grand jury.” On April 2, 1923, the defendants moved the court to set aside its order of March 29th granting the district attorney permission to submit a new indictment, for the reason that the permission was granted without 'any showing of just cause by the district attorney. The court heard the parties and on April 17, 1923, finding that the procedure followed was erroneous, reconsidered “the ■ judgment of March 28, 1923, in so far as it reserved to the district attorney the right to submit the Case to another grand jury, without prejudice to the raising of the question again formally by the district attorney.” Immediately the district attorne3 filed a verified motion showing his reasons for asking leave of the court to submit the indictment to another grand jury, exhibiting with his motion the testimony of witness Bias Carrillo, and on April 23, 1923, the court made the following order: “Considering the motion of the district attorney and the accompanying document, the hearing on the motion having been had on April 23, 1923, with the attendance of both parties,- this court is of the opinion that under the circumstances of the case.'and in the exercise of its discretion under section 39 of the Grand Jury Act, it- should grant the district attorney leave to submit this case to the consideration of the next grand jury impaneled in this court.” From this order the defendants took the present appeal, assigning in their brief four errors which may be condensed into one, to wit: Abuse of discretion by the court in granting leave to submit the indictment to another grand jury. The 24th of May having been set for the hearing of this [94] appeal, the parties appeared and the Fiscal moved for its dismissal because the order of April 23 was not appealable. The Fiscal is right. Section 347 of the Code of Criminal Procedure gives a defendant the right to appeal (1) from a final judgment of conviction; (2) from an order denying a motion for a new trial, and (3) from an order made after judgment affecting the substantial rights of the party. The appellants contend that as the “judgment” of March 28th ordering the dismissal of the indictment is a final judgment, the order of April 23rd had the character of an order made after judgment affecting the substantial rights of the party and was, therefore, appealable in accordance with the express provisions of the statute; but in our opinion the so-called “judgment” of March 28th is not such a judgment as the statute contemplates. Notwithstanding the fact that it was called a “judgment,” the idea of finality that is a characteristic of real judgments seems not to have been in the mind of the court when it included therein the following: “ .... reserving to the district attorney the right to submit a new indictment to another grand jury.” The court persisted in its reservation in its second order. The “judgment” of March 28th would have been final if the district attorney had not moved for and obtained leave' to submit the indictment to another grand jury, but he did so and the interlocutory character of the “judgment” became finally settled. Besides, the question has been decided.by the Supreme Court of California, which laid down the following doctrine in People v. Clarke, 42 Cal. 624, and People v. Ah Kim, 44 Cal. 384: “Order which affects substantial right in criminal ease, from which appeal may be taken, is only aar order made after final judgment. An order directing criminal charge ignored by one grand jury to be submitted to another grand jury is not appealable, but is an intermediate order or proceeding, which may be reviewed [95] ©n appeal from final judgment.” Kerr’s Penal Code of Cal., Part II, p. 1369. - It should be remembered tbat section 363 of tbe Code of Criminal Procedure of Porto Rico reads as follows: “See. 363. — Upon an appeal taken by the defendant from a judgment, the ,court may review any intermediate order or ruling-involving the merits, or which may have affected the judgment.” By reason of tbe foregoing tbe appeal must be dismissed, leaving tbe question to be decided in case a new indictment duly indorsed by tbe grand jury is presented and tbe defendants are convicted and appeal from tbe judgment. Appeal dismissed. Justices Wolf, Aldrey and Hutchison concurred. Mr. Justice Franco Soto took no part in tbe decision of ibis case.