
    People of Porto Rico, Plaintiff and Appellee, v. Luis Pacheco Vidal, Defendant and Appellant.
    No. 3828.
    Argued December 3, 1929.
    Decided December 23, 1929.
    
      R. Martínez Nadal, for appellant. R. A. Gomes, for appellee.
   Mr. Chief Justice Del Toro

delivered the opinion of the court.

Luis Pacheco Vidal was charged with obtaining by false and fraudulent representations from Antonio Espasas a loan of three thousand five hundred dollars to he secured by a mortgage on a piece of urban, property consisting of a house and lot in Santurce, and giving a description in the mortgage deed of a piece of property different from that which he had agreed to mortgage, of an inferior value and which included a house that did not exist, thereby defrauding the said Antonio Espasas of three thousand five hundred dollars, the amount of the loan.

After a trial, Pacheco was convicted by a jury and sentenced by the court to two years in the penitentiary at hard labor. He appeals on the following grounds: (1) That the information does not charge a public offense; (2) that the verdict is contrary to the evidence; (3) that the trial court erred in overruling his motion for a nonsuit; and (4) that it also erred in delivering a certain instruction to the jury.

The Fiscal of this court admits the commission of the second, third and fourth errors assigned, and accordingly he is of the opinion that the judgment appealed from should he reversed.

In our view the information is sufficient; not so the evidence.

It will he noted that the charge against the accused is that he obtained from Antonio Espasas a loan of three thousand five hundred dollars on the false representation that he would secure the loan with a certain property, whereas in reality he gave as security another property of an inferior value, thereby defrauding Espasas.

From the testimony of Antonio Espasas and his sister Carmen Espasas it is clearly and conclusively shown that if any fraud existed it was perpetrated against Carmen, and not against Antonio, since it was Carmen who made the deal with the accused, the action of Antonio being confined to lending to Carmen one thousand five hundred dollars.

Under these circumstances, a fatal variance existed between the information and the proof. On the evidence introduced by the prosecution, the jury could not convict the accused of obtaining from Antonio Espasas by false and fraudulent representations the sum of three thousand five hundred dollars and defrauding the said Antonio Espasas of the said sum or any part thereof, which was the public offense with which the accused was charged. The district court should have sustained the motion for a nonsuit.

Having reached the above conclusions, it is unnecessary to consider the assignment of error relating to the instruction transmitted to the jury.

The judgment appealed from must be reversed and the defendant discharged.

Mr. Justice Texidor took no part in the decision of this case.  