
    The People v. Subirana, Jr.
    Appeal from the District Court of Ponce.
    Motion of fiscal to dismiss appeal.
    No. 491.
    Decided December 20, 1912.
    Appeal dismissed on motion of fiscal.
    
    
      Mr. Charles E. Foote, fiscal, for The People.
    The respondent did not appear.
    
      Dismissed.
    
    Chief Justice Hernández and Justices Wolf, del Toro and Aldrey concurred.
    Mr. Justice MacLeary dissented.
   DISSENTING OPINION OF

MR. JUSTICE MACLEARY.

The dismissal filed by the fiscal in this case is entirely similar to that in the preceding, and the same preliminary remarks will apply to this as to that case, and it is unnecessary to repeat what is the proper method for the fiscal to follow in making such motions and for the court to require, in deckling them.

The accused herein was charged with the crime of seduction. The trial court instructed the jury to bring in a verdict of acquittal, because, as it was said, the fiscal had not proved the injured woman to have been single. California cases are cited in support of this instruction. But the trial judge admits that he overlooked the case of The People of Porto Rico v. Martínez, reported in 13 P .R. R., 241, and that hau it been called to his attention he would have followed it and held that it was incumbent on the defense to prove that the injured female was married. It seems that he found this decision too late. If the fiscal of this court had read this record carefully, he certainly would not have entered herein a dismissal of the appeal or even have asked the court to do so. The error is manifest and the judgment should be reversed and the case remanded for a new trial, as the trial judge clearly anticipates.

To suffer an order of dismissal to be entered in this court in this case is to countenance, if not to indorse, a miscarriage of justice.  