
    The People v. Roman et al.
    Appeal from the District Court of Mayagiiez.
    No. 33.
    Decided December 14, 1903.
    Evidence —New Trial. — The .exclusion of pertinent evidence constitutes an error of such a nature as to necessitate the reversal of the judgment and the granting of a new trial.
    Rape —Force and Violence —Unwillingness and Resistance. — Force and violence on the part of the ravisher and unwillingness and resistance on the part of the prosecutrix are essential elements of the crime of rape.
    Id. — Evidence ^-Character of Prosecutrix. — Evidence of the bad character of the prosecutrix for chastity is not admissible upon a prosecution for the crime of rape.
    Id. — Prostitutes.—The crime of rape may be committed on a prostitute.
    Information — Question of Law. — When there is no evidence.to sustain the allegations contained in the information, a question of law is presented on which the Supreme Court, in the exercise of its appellate jurisdiction, is competent to act.
    
      Evidence — Eerors.—Errors committed in the exclusion of evidence or in the consideration of such that has been admitted, must be corrected by the lower court on a new trial.
    The facts are stated in the opinion.
    
      Mr. Juan B. Bamos for appellant.
    
      Mr. del Toro, Fiscal, for respondent.
   Mr. Justice MacLbary

rendered the opinion of the court as follows:

The appellants in this case were prosecuted with three others for ravishing two women on the road between Agua-dilla and San Sebastian, early on the morning of the 10th of May, of the present year. The witnesses for the prosecution were the two women alleged to have been violated, and an-, other women who was walking with them along the road, with a child in her arms, and a boy, son of the latter woman, who accompanied them.

The appellants alone were. convicted on the trial of the cause. They were tried before the District Court of Maya-giiez, without a jury and adjudged guilty by a majority vote of the judges of that court, on the 11th day of July last. The facts set out in the record are as follows:

“That in the early morning of the 10th of May of the present year, two women, Secundina Loperena and Antonia Santiago, who were walking along the high-road which leads from the town of San Sebastian to that of Aguadilla, and the accused, José Román and To-más Román by means of serious threats of immediate corporal harm with the cutlasses which they carried, and employing force and violence had carnal intercourse with the said women, taking them, into .a coffee plantation, by lifting them over a barb-wire fence; after which they retired leaving the women to proceed freely.”

The appellants were sentenced to the punishment of eight years in the penitentiary at hard labor, and the payment of the costs. Judge Erwin of the District Court dissented from the judgment, voting in favor of the acquittal of all the accused.

During the progress of the trial it was testified by a man who had been grazing his horse near the road, that the two brothers, José and Tomás Román, bad passed him arm in arm with two women on the morning referred to.

On behalf of the defendants their attorney, Pascasio Fa-jardo, Esq., requested the court to cause the woman to appear in court in order that they might be recognized by the aforesaid witness which request.was denied, the court declaring the evidence impertinent. To this ruling of the court the attorney for the defendants in proper form reserved an exception. The evidence was certainly material, because the witness had testified that the women were walking arm in arm with the men, if not willingly, at least without any resistance, and presumably without calling for assistance, as no mention was made of that circumstance.’ If he could have identified the women who were alleged to have been injured, as the same he saw walking quietly with the accused, 'it could have made his evidence much more satisfactory to the court, and at the same time have furnished the prosecution an opportunity to rebut his testimony. If he could not have done so, the force of his testimony would of course have been greatly weakened. Certainly the evidence was pertinent and as it would have materially assisted in the search for truth, it should have been admitted. We believe that the exclusion of this testimony was such an error as necessitates the reversal of this judgment.

But further, taking all the facts and circumstances of the case together, as they appear in the record presented to this court, reading the testimony of the witnesses pro and con, and giving only such credence to the statements of the accused as they may deserve, we gravely doubt any rape having been committed on that occasion No threats were testified to, except that one of the accused remarked to the women, “You have met your fate.” No force was shown, except that each one of the men took one of the women by the arm and walked off into the adjoining coffee plantation, climbing the fence on the way. All evidence of other violence is entirely lacking. It is said by some of the witnesses that the women were dragged over the fence, but the circumstances do not corroborate this view of the case. No resistance on the part of the injured females was shown by the testimony of any witness, and no outcry was made, even when they passed- the traveler who was grazing his horse by the road-side.

The very essential elements of force and violence on the part of the ravisher, unwillingness and resistance on the part of the violated women, which in such cases constitute the crime of rape seem to be wanting on this occasion. It is not necessary to refer to the character of the women, although there is undisputed evidence that they were prostitutes. It is "true rape can be committed on a woman of this class, as well as on any other, but it does not often occur, apd the fact that a woman lacks modesty and chastity, and belongs to that unfortunate class who have utterly abandoned the ways of virtue, renders it less probable that force or violence is necessary on the part of a man wishing to satisfy his carnal desires, and it seems more probable in cases like this that the deed was accomplished by permission or for a pecuniary compensation

In cases like the present, this court would formerly, in all probability, have reversed the judgment and acquitted the defendants; but since the passage of the Code of Criminal Procedure now in force, the powers of the Supreme Court in that particular seem to be more restricted. Section 345 of the said Code reads as follows:

“Every party in a criminal action amounting to a felony, may appeal to tbe Supreme Court, on questions of law alone, as prescribed in this Chapter.”

This is taken from the Penal Code of California, section 1235, which reads as follows:

“Section 1235. — Either party in a prosecution by indictment or information may appeal to the Supreme Court on questions of law alone, as prescribed in this Chapter.”

A comparison will show that the language is almost identical. Of course the decisions made by the Supreme Court of California on this section are entitled to great weight in the interpretation of this statute. It has been held that when there is no evidence to sustain the charge set forth in the information a question of law is presented, on which the Supreme Court, in the exercise of its appellate jurisdiction is competent to act. (People v. Smallman, 55 Cal. 191; People v. Jones, 31 Cal. 565.)

This view is sustained in later cases; and in 112 California, the court, -in a case in which the prosecution urged an af-firmance because, although errors were committed, yet the evidence was such that in any event a conviction of the appellant would be necessary. The Supreme Court says:

“The point made by the Attorney General really is: That the evidence against the defendant was so overwhelming that his uncorroborated testimony could not possibly be accepted by the jury, and therefore he is not injured. But this court has no jurisdiction in criminal cases, save on questions of law. The law has prescribed certain rules of pleading, practice and evidence, in accordance with' which persons accused of crimes must be tried. This court has appellate jurisdiction for the correction of errors in such cases. Evidently the function of this court on such an appeal is to determine whether a defendant has been tried as the law prescribed. If he has not been there is but one way to correct the error, and that is to grant a new trial. But a defendant would not be entitled to a new trial for any error which has not prejudiced his case. This rule prevails in civil as well as criminal eases-. But this court cannot say that a defendant has not been injured because, notwithstanding the error, he must have been convicted anyway, as the evidence is very convincing. We cannot look at the evidence except for the purpose of considering some questions of law which may be raised in regard to it. We can only regard persons guilty or innocent upon a verdict of a jury upon a trial according to law. If an appellant has been wrongfully deprived of evidence, or has been required to make - a stronger case than the law demanded, he has been injured.5 ’ (People v. Marshal, 112 Cal. 425.)

Under this view of the law, the relief to he afforded in this court must he confined to granting a new trial; leaving it for the court below to correct the errors made in the exclusion of evidence, or in the effect given to that which was admitted.

Therefore, having considered the whole matter carefully, giving due weight to each fact and circumstance, we are of the opinion that the judgment of the District Court of Maya-giiez should he reversed, and the cause remanded for a new trial, or such other disposition thereof as to that court may seem just.

Remanded for new trial.

Chief Justice Quiñones and Justices Hernández and Sulz-bacher concurred.

Mr. Justice Figueras did not sit at the hearing in this case.  