
    People of Porto Rico, Plaintiff and Appellee, v. Nicolás García, Defendant and Appellant.—People of Porto Rico, Plaintiff and Appellee, v. Ciriaco Agosto, Defendant and Appellant.
    Nos. 3795 and 3796.
    Argued March 4, 1929.
    Decided March 12, 1929.
    
      Arturo Aponte for the appellants. José E. Figueras and Benjamin Guerra for the appellee.
   Mr. Chief Justice Del Toro

delivered tbe opinion of the court.

The district attorney of -Humacao and the fiscal of this court move for dismissal of appeal No. 3795 taken hy the accused on December 21, 1927. In tbeir motion they allege and show 'prima facie by means of several certificates and an accompanying affidavit that, tbe appellant bas not been diligent, notwithstanding tbe extensions of time granted by tbe trial court for presenting his statement of the case and bill of exceptions.

On tbe 21st of December, 1927, tbe date of taking his appeal, tbe appellant moved for and was granted a period of sixty days for preparing bis statement of tbe ease and bill of exceptions. At tbe expiration of that period he bad not presented tbe document and between then and now be moved for and was granted several other extensions of time by tbe district court. And what else has be done? Nothing. In his affidavit accompanying tbe motion tbe stenographer swears that tbe appellant did not' ask him for bis- notes to be used as a basis in tbe preparation of his statement of the casé.

The appellant opposed tbe motion to dismiss and bis attorney presented an affidavit in which he contends that bis client has a good and sufficient defense, stating it, and says that in due time be asked tbe stenographer for tbe transcript of the record and tbe stenographer agreed to furnish it to him without any charge, as the defendant was poor.

At tbe bearing on the motion tbe district attorney of Humacao and tbe attorney for tbe defendant argued tbe matter not only extensively but passionately, tbe attorney severely criticizing tbe conduct of tbe district attorney in moving for dismissal.

We desire to say that we consider it to be the plain duty of tbe district attorney to see to it that appeals taken in criminal cases in bis district be prosecuted with due diligence and, in proper cases, to move for tbeir dismissal in agreement with tbe fiscal of this court.

This practice is not to be recommended in all cases, but it is a fact that tbe courts generally grant extensions of time in accordance with tbe requests because they rely on the vigilance of the adverse party, and in criminal cases the adverse party is The People represented by the district attorney.

After stating the foregoing and remembering onr holdings on several occasions that as a general rnle judicial arguments are perverted when the personal questions of the attorneys are brought into them, we will say that in our opinion the prima facie case of the district attorney was not destroyed by the defense.

It is true that the affidavit of the stenographer was contradicted by that of the attorney, but as the latter showed nothing submitted to the court, nor made the slightest demonstration that he had done anything in the appeal except make motions for extensions of time, we are forced to the conclusion stated and to dismiss the appeal under Rule 59 of this court.

The prosecuting attorneys also move for dismissal of appeal No. 3796 for the same reason.

An examination of the motion made in this court on February 25, 1929, and the certificate accompanying it shows that the appeal was taken on July 21, 1927; that on the same day the appellant asked for and was granted leave to appear in forma pauperis; that on the following day he moved for and was granted sixty days for preparing the statement of the ease and bill of exceptions, the court ordering the stenographer to furnish him with a transcript of the record without charge; that he went on applying for extension after extension, the last of which was granted for twenty days on February 4, 1929, and still the document was not filed.

The appellant opposed the motion and presented a certificate showing that he had filed in the office of the clerk of the trial court on March 2, 1929, a statement of the case and bill of exceptions, and an affidavit to the effect that he had repeatedly requested the stenographer to furnish him with a transcript of the record without success and:

“That this appeal has not been taken for the purpose of delaying justice but, on the contrary, its sole aim is to get a review of the proceedings in the court below which, in the opinion of the undersigned attorney, is in the present case more than in any other entirely erroneous, as well as the attitude of the public prosecutor in taking undue advantage of the accused, as will be shown at the proper time in the brief which will be duly presented to this court, the questions involved being among others, as follows: (a) Error committed by the lower court in refusing the instructions submitted by the defense on the reputation of the prosecutrix as a public woman; (Z>) error committed by the court in permitting the prosecution in open court to compel the accused to give evidence and testify against his will; (c) error in admitting in evidence statements of the prosecutrix made a few days after the fact; (d) illegality of the verdict; (e) error of the court in refusing to dismiss the action; (/) error of the court in giving to the jury instructions on the medical report made four months after the commission of the supposed act, that is, the medical examination made four months afterwards.”

The attorney for the appellant at the hearing on the motion orally colored the errors by presenting them as of great weight. He was contradicted by the fiscal and as we have' before ns now the only thing that appears from the record, we do not deem it sufficient to justify us in allowing the prosecution of the appeal in the furtherance of justice.

There is a circumstance favorable to the appellant, that is, the order of the court that the stenographer furnish him with the transcript, but that order was made on July 22, 1927, or almost two years ago, and it does not appear that the appellant applied again to the court for any measure to compel the stenographer to act.

It is insisted that the statement of the case has been filed and that it constitutes a good defense in accordance with Rule 58 of this court. The rule does not refer to the presentation of the statement of the case in the trial court, but in the appellate court; but even applying it because a similar situation is involved, it would be so if the statement had been filed before the motion to dismiss and not afterwards as was done here. Moreover, as appears from the record, the statement was filed after the expiration of the last extension of time granted to the appellant by the district eonrt.

In view of the circumstances we are of the opinion that the appeal in case No. 3796 should be dismissed.  