Ortiz Báez v. Superior Court of Puerto Rico

Mr. Justice Ramírez Bages delivered the opinion of the Court. The question to he decided in this appeal is whether the holding of a second hearing of a charge of larceny before another jury constitutes double jeopardy under Rule 64(e)1 of the Rules of Criminal Procedure, because the trial court before which the first hearing was held (1) allowed an amendment to the information after the evidence for the defense had been introduced for the purpose of eliminating a variance between the pleadings and the evidence, so that instead of charging the stealing of parts of an automobile, it should be stated that the petitioner stole said vehicle, and (2) with petitioner’s consent it postponed the trial so that it be held before another jury, pursuant to Rule 38(d)2 of the [256] Rules of Criminal Procedure. We believe that under such circumstances the defense of double jeopardy should not prosper. To the effects of a better understanding of the question raised, it is necessary to make a summary of the evidence introduced by the parties and of the subsequent incidents. In the case of People v. Osvaldo Ortiz Báez, Criminal G-66-103, the trial began on November 9, 1966, in the Superior Court, Ponce Part. At that time petitioner herein was charged with stealing several parts from the automobile belonging to Eligió López Rivera, valued in more than $100. The prosecuting attorney presented his opening statement to the jury and told them that he would seek to establish that on January 10, 1966, Eligió López Rivera arrived at the ward Pulguillas in Coamo, in his automobile, or which was in his name, and left it parked in front of the house of one of his aunts; that on the morning of the next day the automobile had disappeared from the place; that he complained to the police and afterwards the vehicle appeared at the ward Matón in Cayey, dismantled of its parts and burnt; that the parts of the car were subsequently sold by defendant and someone else to different persons; that the parts sold were taken from the vehicle and coincided with those of the vehicle which had been stolen from Eligió López. [257] The first witness for the People was Clotilde López Ro-dríguez. He testified that he was a • resident of the ward Pulguillas in Coamo; that Eligió López was his son and that he was now in Vietnam; that on or about January 12, 1966, his son had a 1956 yellow and black Chevrolet automobile bought by the witness, and which he valued at $1,500 after having repaired it; that the vehicle was in his name and that his son used it; that on January 11, his son came- to his house and parked the vehicle in front of his aunt’s house; that during that night they did not use the car, and in the morning the vehicle was not there. They notified the Aibonito police station that same day. He saw the vehicle again, burnt, on the 14th, when the police notified them that they had found it in Cayey. The motor, the tires, and the transmission were missing. After this witness was cross-examined and in the absence of the jury, the prosecuting attorney requested.to be allowed to amend the information in order that it would state “that the vehicle was owned by Clotilde López Rodríguez, but under the immediate possession of his son Eligió López Rivera.” The defense objected, since it understood that the amendment varied the elements of the offense and charged now a different offense. The amendment having been allowed, the trial court asked whether there was any objection to the continuance of the trial, to which the defense answered, first, that it did not have any objection, but later, after other considerations, it stated that the case should continue, and the court so ordered. Right afterwards, the entire information was read again to the jury with the accepted amendment as transcribed. The proceeding having continued, the prosecuting attorney announced the testimony of Sergio Vargas Miranda. For the second time the court asked whether “the order of the court having been issued, does the defense have any objections to the continuation of the case?” The defense stated: “We do not have any objection to the continuation of the case with the [258] exception made by the defense.” The exception was that it understood that the amended information alleged a different offense. Sergio Vargas Miranda testified that: He resided at the ward Matón Abajo in Cayey, on January 11 to 12, 1966; that he had known defendant and another person called Rafael Colón Pagán, for 21 years; fhat on January 12 the witness had his automobile parked with the motor on the floor to repair it, and about ten o’clock in the morning the defendant and Colón Pagán “offered to sell me the motor of that car for the amount of $75.” The witness made the transaction in front of Miguel Ángel Rivera, who had a car, and a mechanic named José Antonio Rodriguez; the latter took out the motor from the car and carried it to where the other car was. The vehicle of the motor sold was parked in front of defendant Osvaldo Ortiz Báez’ house, it had a yellow colored top, the hood and the lower part were black, and it was a 1956 model. Miguel Ángel Rivera carried away the motor bought and José Antonio Rodriguez installed it. Defendant and Colón Pagán informed him that the motor belonged to them. The witness testified subsequently that defendant and Colón Pagán sold the tires to Andrés Cartagena, also a resident of that ward. Afterwards, the police arrived and told them that the motor did not belong to them, that it was stolen and wanted to take the parts away. The witness did not object to their taking the parts away and his car with the installed motor also. Besides the motor, he bought from the defendant and Colón Pagán, the transmission and the radiator for the same $75. He did not know the owner of the vehicle and said that if he had known that the vehicle was stolen he would not have bought that. The cross-examination of witness Vargas Miranda sought to establish that the person who actually stole the vehicle in. question was Vargas Miranda himself. [259] Andrés Cartagena testified that on or about January 1966 he was a public carrier between Cayey and Aibonito; that hé knew the defendant, they had been born in the same ward, as well as Rafael Colón Pagán; that on January 11, 1966 defendant Ortiz Báez and Colón Pagán went to offer him the tires and to sell them to him cheap; the witness agreed to buy them and they told him that they were from a car which they had bought and were selling the tires because they needed money. He gave them $10 and later would give them $10 more for three tires and their rims, yellow colored; that he saw the car from which the tires were taken at a farm in Matón, and Rafael Colón took him there. Ortiz Báez was waiting for him. The witness used two tires on his automobile and when he found out something later on, he returned the tires to defendant Ortiz Báez and to Colón Pagán, and called the police. Defendant and Colón Pagán told him not to worry, that he could use the tires because the car was not going to appear. During cross-examination Cartagena accepted that when he bought the tires, the rims were painted yellow and that he painted them red. He said that he knew that the defendant did not know how to drive, nor did he have a driver’s license. The witness stated that defendant and his companion had told him not to worry, that they had already gotten rid of the car; that they had stolen the car in Pulguillas, and to keep silent, that nothing was going to be known. José Antonio Rodriguez testified that Vargas’ car broke down in front of where the witness lived and Vargas told him that he was going to buy a motor to install in it. The witness took out the broken motor. Miguel Ángel Rivera brought a motor in order that the witness would install it as he did in Vargas’ vehicle. He does not know where the motor came from. On cross-examination he denied having seen the transaction about that motor with defendant. [260] .Witness Argimiro Ortiz ■ Vega .testified afterwards. He said that he had bought from Eligio.López.Rivera a Chevrolet motor for his car, a 1956 model. The motor having been, installed in his car, the police came to investigate and found the motor’s number. It was No. 00957.6-7 F 562. During cross-examination he could not recall.his social security..number; which he had since 1950. The next witness for .the .People was agent Antonio Es4-pada. He said that he made' the investigation of the stolen automobile which appeared dismantled at the> ward- Matón. Andrés Cartagena informed the case. He and a detective interviewed Vargas, who told them that he had bought the motor from Osvaldo Ortiz Báez, including the license plate No. 879-008. He did not examine defendant before submitting the case because he had gone away from the ward. On cross-examination he said that the burnt car did. not have a license plate. It was given to him by witness Sergio Vargas, who “during the search found it and gave it to me.” He found Sergio Vargas on the road with parts of the missing car. He testified that “Sergio Vargas was never charged with anything ... he was voluntarily cooperating- in the investigation with us.” At the close of the evidence for the prosecution, the defense filed a motion for nonsuit because the stolen.parts had not been identified and the value of the same had not been proven to the effects of grand larceny. The trial court denied this motion because it understood that it had been established that the value of the identified vehicle amounted to $1,500, and that “the evidence which there is before this court is the value of the original cost of that car and the repair, and the only parts with proven value of $95, $75 for the motor, taking, this as true, and $20 for the tires.” It seems evident that since the beginning of the first trial in the case, it was sought to establish, within the purview of. [261] the facts set forth in the information, the larceny1 of the Chevrolet vehicle belonging to Eligió López Rivera, but recorded under the name of his father, Clotilde López Rivera; The trial court understood it when it' denied the motion to acquit. Miguel Ángel'Rivera, witness waived by the prosecuting attorney, testified for the defense. He testified that on January 13 or 14, 1966, Sergio Vargas Miranda asked him to bring a motor to be installed on his 1956 Chevrolet car; that this vehicle had not been running for two months; that Vargas had the motor hanging from a tree near a car which Vargas told him he had bought “at the- ward Pulguillas in Aibonito.” That at no time did he see transactions with that motor between defendant and Vargas, nor with Rafael Colón; that defendant does not know how to drive an automobile; that the next day Vargas went to the witness’ house' accompanied by a brother and asked the witness’ brother for a gallon of gasoline, which he was given, without saying, for what he wanted it; that Vargas went from there towards his house, and about four or five minutes later he saw how the car which they had there and to which he had gone to get the motor, caught fire. The cross-examination of this witness consisted mostly in the confrontation with the sworn statement which he had rendered previously, to which the prose-, cuting attorney submitted him. The witness stated that he only knew how to sign, but that he did not know how to read-The former sworn statement was. introduced in evidence and was read to the jury. The witness ratified that what had been testified in court was correct. He denied, having testified to the prosecuting attorney that defendant and Colón Pagán had stolen those parts. With the prosecuting attorney’s objection, the trial court heard the testimony of the witness for the defense Antonio Ortiz Báez, defendant’s brother. He stated that on January 12, 1966, at noon, he saw Sergio Vargas taking out the [262] motor from the 1956 Chevrolet vehicle, in the presence of José Antonio Rodriguez. Neither defendant nor Colón Pagán was there. The prosecuting attorney waived the cross-examination of this witness in conformance with his objection to his testimony. The last witness for the defense was Rafael Colón Pagán. He stated that on January 11, 1966, at 8:30 in the evening, Sergio Vargas went to ask him to drive him to the ward Pulguillas in Coamo, to look for a car which he had bought. The witness refused because he did not have a car, he had sold his some days before in order to go to New York; that Sergio Vargas’ 1956 Chevrolet had been defective for two months; that Ángel Luis Rivera agreed to take him to the place and the witness accompanied them because Rivera only had a learner’s permit. On the road they picked up defendant Ortiz Báez; that when they arrived at the ward Pulguillas, Vargas said to leave him there because he was going to see his girl and afterwards he would return in the car which he had bought, and from there they returned home. That the next day Vargas asked him to tell Andrés Cartagena to see him in order to deliver him some tires, that they had already talked about that business; that afterwards, Cartagena told him that he had bought the tires from Sergio. The witness said that he worked earning $60 weekly, and that on Friday 14, he left for New York until May. He was accused for these facts. When the sitting of the trial court was resumed, after an adjournment, the prosecuting attorney requested an amendment of the allegations in the information “relying on the provisions of Rule 38 of the Rules of Criminal Procedure, in the sense that defendant be charged . . . instead of having stolen parts of a 1956 Chevrolet automobile, license plate 879-008, let it be corrected and stated that defendant stole the whole vehicle. . . .” [263] Appellant objected to the amendment in question because it was untimely and it charged a completely different offense; that being at the stage of the evidence for the defense “we are not ready to represent defendant in a case which is supposed to answer for some parts and now it is for the entire car.” It is apparent from the record that the ground of the defense is that the amendment in question alleges a different offense from the one originally alleged, and that therefore, it does not lie pursuant to the provisions of Rule 38 (d). The trial judge determined, then, that “with this amendment defendant’s fundamental rights are prejudiced, and therefore, the trial should be continued to be held before another jury, . . and he asked whether the defense would be opposed thereto. We conclude that he was correct in determining that defendant’s substantial rights had been prejudiced in view of the defense’s allegation that it was not ready to face the amended information. The defense repeated, in effect, that the amendment was untimely and that it was not ready to continue the case with that amendment; repeatedly it objected to the continuation of the hearing of the case in consonance with its contention that the amendment entails the allegation of a different offense. It indicates that “the contention which we would make if the case is set for another day would be precisely to object even to the hearing of the case,” thus establishing the ground for its contention of a different offense. Finally, it argues that “If the case is heard before another jury it would be precisely double jeopardy.” Before such stubborn opposition of the defense, the trial judge ordered the continuation of the hearing of the case on the basis of the amended information. When the defense was asked whether it needed time, it answered half an hour. The defense added that “... . we are opposed to that amendment, if Your Honor decides to continue or not, as Your [264] Honor has said that we are going-to continue with the-cáse, I have no other alternative than to obey the order of - Your Honor; I am forced to. obey the order, as an attorney that is what-1 have to do, and I continue hearing, the case and I oppose not only to the hearing before another jury, but I understand that it cannot■ be heard either by .this jury or by any other jury, that is, that nothing can be heard .” (Italics ours.)This contention, I repeat once more, is grounded, as the defense constantly argued, on the fact that the amendment alleges a different offense. When the sitting was resumed,, after the half hour adjournment, the trial judge repeated again that he understood that the trial should be continued to be heard before another jury and again asked,.the defense whether it was opposed thereto. The latter answered “we do not oppose Your Honor setting it to be heard before another jury, but without waiving any right to protect the defendant.” (Italics ours.) We do- not doubt that this last ..statement of the defense constitutes an express, clear, and explicit consent, which does not leave any doubt that if was given to. the continuance of the case to be heard before another jury, pursuant to the provisions of Rule 38 .(d). The statement without waiving any-of defendant’s rights does not render said consent less express, clear, or explicit, since it necessarily referred to the. contention so many times previously made that the amendment did not lie because it alleged.a different offense and, therefore, the proceeding should be dismissed as. provided in, the.second paragraph of Rule 38 (d). The certainty of this is verified by the fact that when the second hearing of the case was commenced before another jury, the defense raised the impropriety of the amendment and ratified its original position to the effect that the matter should be dismissed pursuant to Rule 38 (d), paragraph 2, in view of its opinion that the second amendment charged a different offense, contention which was rejected again when the judge who presided át the'sécond [265] hearing of the case concluded that the same offense of larceny was involved. In Ríos Mora v. Superior Court, 95 P.R.R. 115 (1967), an amendment to the information having been requested at the close of the evidence for the prosecution, the jury having been discharged, and the case having been set for a new trial, and the question of former jeopardy having been raised, we said that: “Without considering whether the amendment proposed by the prosecuting attorney was actually necessary, since apparently there was no such incongruency or variance between the pleadings and the evidence to warrant the application of Rule 38(d), the truth is that the action of the court in permitting the amendment did not impair defendant’s right to a fair and impartial trial. In allowing the amendment the court offered the defense the alternative of continuing with the hearing or of discharging the jury and granting a new trial. But the defense did not accept either the one or the other; “The attitude.assumed by the defense in the sense of opposing to the continuation of the hearing forced the presiding judge to adopt the measure which he believed was less prejudicial to defendant, which was to discharge the jury and start a new trial. It was the least prejudicial, since in view of the attitude of the defense to object to the continuation of the trial, the court would have had to assign to him another attorney, who evidently could not offer, even if the continuation of the hearing was postponed so that he could confer with the defendant and the witnesses, the same assistance that the attorneys who had attended Viim from the onset of the proceeding and who were acquainted with all the details of the evidence, could offer him. A new trial was certainly more beneficial, to defendant.” ■ We concluded in Ríos Mora, supra, that under the attending circumstances of said case former jeopardy could not be invoked to overcome the new trial. The only difference that exists between Ríos Mora, supra and the case at bar consists in that in the former the defense’s opposition to the postponement of the case to be heard before [266] another jury was always maintained, while in the ease before us the defense consented at last to such postponement, the procedural situation in issue falling thus fully within the purview of Rule 38 (d). In view of the foregoing, we cannot agree that petitioner has been placed in jeopardy of punishment more than once. This is not a case of double jeopardy. The nature of the amendment of the information in this case was substantial and not merely of defects of form. In our judgment, the judge who presided the first hearing of the case acted correctly, pursuant to the provisions of Rule 38(d) in admitting the amendment in question, and thus conforming the information with the evidence, as well as in insisting to protect defendant’s rights in the postponement of the trial to be held before another jury, to which petitioner consented. Therefore, the writ issued will be quashed and the case remanded to the trial court for further proceedings. Mr. Chief Justice did not participate herein. Mr. Justice Santana Becerra dissented in a separate opinion in which Mr. Justice Hernández Matos concurs. —0— Footnotes [1] Rule 64(e) provides that: “The motion to dismiss the information or complaint, or any count thereof, shall be based only on one or more of the following grounds: “(e) That the defendant has been convicted-or placed in jeopardy or has been acquitted of the offense charged. If the motion to dismiss is based on this ground, it shall state the name under which the defendant was convicted or placed in jeopardy or acquitted, and the date, court and place of conviction, former jeopardy or former acquittal. The motion to dismiss may be filed by any defendant who shall have been acquitted on the merits of the case, notwithstanding any defect in the information or complaint." (Italics ours.) [2] Rule 38(d) provides that: [256] “ (d) Variance between pleadings and the evidence. The court may allow amendments to be made to the information, complaint or to a bill of particulars at any time before the conviction or acquittal of the defendant, in case there is a variance between these pleadings and the evidence. The variance between the pleadings and the evidence shall not constitute grounds for the acquittal of the defendant; but the court shall, provided the defendant does not oppose it, postpone the trial if the substantial rights of the defendant have been impaired, to hold it before another jury or before the same court if the trial is not by jury, and as determined by the court. “If the discrepancy or variance is of such nature that the evidence establishes an offense different from the one charged against the defendant, and not included therein, or if it establishes an offense beyond the jurisdiction of the court, the jury shall be discharged and the case shall be dismissed.” (Italics ours.) [1] The guarantee involved in the case of Barron was the prohibition of the Fifth Amendment against the taking of private property for public use without a just compensation. Justice Marshall held that this prohibition did not restrict the action of the states. Of course, 64 years later the [270] Supreme Court, in Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897), imposed this protection on the states by means of the due process of the Fourteenth Amendment.