
    The People v. López.
    Appeal from the District Court of Ponce.
    No. 45.
    Decided February 18, 1904.
    Appeal — Felony—Error op Law. — An appeal in a criminal action amounting to a felony must be based upon an error of law.
    Extortion — Public Oppioer. — A public officer who, by virtue of bis official position, obtains money from another person by means of threats of a criminal prosecution for an alleged violation of law, is guilty of extortion.
    Sentence — Eights op Dependant. — The formalities prescribed by section 318 of the Code of Criminal Procedure must be complied with prior to pronouncing sentence and after the rendition of verdict.
    The facts are stated in the opinion.
    
      Mr. López Landrón, for appellant.
    
      Mr. del Toro, Fiscal, for respondent. •
   Me. J ustice Figtjeeas

delivered the opinion of the court, as follows:

In this case José López Gaztambide was prosecuted for the crime of extortion in the District Court of Ponce which, after due process, rendered judgment on August 13 of last year, sentencing him to one year’s imprisonment, at hard labor, in the penitentiary of the Island, and payment of costs occasioned at the trial. The judgment of conviction was based on the sworn information, which reads:

“José López Gaztambide is accused by information filed by the Fiscal of the crime of extortion, comprised under section 458 of the Penal Code, committed as follows: In the month of July, 1902, the «aid José López Gaztambide, now accused, while chief of the Insular Police forces stationed in the town of Yauco, as second lieutenant thereof, visited in his offical capacity the mercantile establishment of José N. Peñas, and considering that the baker’s shop did not conform to the provisions of the sanitary law, and that his licenses for the salé of liquors lacked the legal requirements, unlawfully demanded fifty dollars of said Peñas to abstain from reporting him under threat of prosecution if he did not accede to his demand, and finally agreed to settle the matter for eighteen dollars, which the accused received. This act is contrary to the law in such cases made and provided, and against the peace and dignity of the People of Porto Rico. Francisco Parra, District Fiscal.”

The oral trial was had on August 4 of last year, and when the information had been read and the Fiscal had formulated the.charges appearing therein, the injured party, Peñas, testified substantially in accordance with the information, stating, however, that the act occurred in the month of August last, and José Sanabria declared that he was at the time an insular policeman and, as such, had, in company with Lieutenant Glaztambide, made a visit of inspection of Peñas’ establishment; that the lieutenant had told him that he (Peñas) had to be reported, because his store was not kept properly; that he then noticed that Peñas was entreating the lieutenant and that the latter demanded of the former a sum of money to settle the matter; that later the witness again saw Peñas, who gave him eighteen dollars to hand over to the lieutenant, which he did. Mr. John B. Hart testified that he had known Peñas as a merchant of Tauco, and remembers that he has on several occasions, as an internal revenue inspector, visited his establishment, and always found it properly conducted.

At the trial the defense was confined to praying for a verdict of “not guilty” and that the defendant be accordingly discharged; but on the 13th of August of last year, his counsel filed a petition asking for a new trial, upon the ground that his client had not been informed of his rights as prescribed by section 318 of the Code' of Criminal Procedure, and because the verdict was contrary to law and evidence, in which case article 301 and paragraph 6 of article 303 of said Code are applicable. Tbe court unanimously denied a new trial upon tbe ground that tbe sections cited were not applicable to tbe case, whereupon counsel for tbe defense requested that bis exception to this decision be entered. Immediately thereafter tbe defendant was instructed as prescribed by section 318 of the Code of Criminal Procedure, be pleaded not guilty, and thereupon tbe judgment referred to was rendered.

From said judgment an appeal was taken which has been perfected in this Supreme Court, accompanied by a statement of tbe facts, it being urged: 1. That tbe testimony of tbe injured party should be set aside because be was an interested party to tbe accusation, and that tbe statement of José Sa-nabria is so vague, ambiguous and indecisive, that it fails to determine whether tbe delivery of tbe money bad been effected in specie or any other kind of currency, and whether in gold or silver. 2. That even admitting tbe facts as stated, they do not come under section 458 of tbe Penal Code. 3. That section 318 of tbe Code of Criminal Procedure was not complied with, by informing tbe defendant of tbe nature of tbe charge against him, as prescribed therein. For these reasons be finally prayed that José López Gaztambide be discharged, with costs, for tbe account of tbe People, or in lieu thereof that a new trial be ordered.

Tbe appeal was opposed by the Fiscal. No bill of exceptions has ‘been filed as required in such cases by section 295 of tbe Code of Criminal Procedure, nor was evidence of any kind proposed and taken that might offset tbe evidence brought forward by tbe prosecution. Under such circumstances tbe consideration of the evidence against which nothing was opposed at tbe trial cannot be discussed; but even conceding that this could be done, it appears that tbe testimony of tbe injured party is borne out by that of tbe witness Sanabria, whose positive assertion contains tbe elements of fact necessary for a definition of the offense, tbe credibility of Ms testimony not being diminished by Ms failure to specify the Mnd of money banded Mm by Peñas for Gaztambide, because upon this point be is not in contradiction with anybody, and, therefore, no doubt can arise as to the certainty of the facts. Thus there is nothing ambiguous, vacillating or indecisive in his testimony. Considering the nature of the offense, an appeal can be taken only on a question of law, according to section 345 of the Code of Criminal Procedure and section 14 of the Penal Code connected therewith. Now, then, the facts upon wMch the information is based come fully within the meaning of section 458 of the Penal Code:

José López Graztambide, as lieutenant of the Insular Police, received eighteen dollars, sent by José N. Peñas, which was obtained from him no doubt by a threat to file a complaint against Mm for a supposed violation of the sanitary laws in Ms establishment, and lack of legal reqMrements in his licenses for the sale of liquors. Now, then, it cannot be denied that such a threat constitutes an element of the crime of extortion (sec. 457, par. 2, Penal Code) because it induced in the mind of Peñas the fear of being involved in a criminal prosecution for some of the crimes against public health and revenues of Porto Eico, comprised under titles XIV and XVI of the Penal Code, and a conviction of the injustice of the threat is strengthened when it is seen that the complaint does not appear to have been filed, while there exists a presumption of Peñas’ innocence on considering the testimony of John B. Hart, an internal revenue inspector, who declared that on several occasions he had visited Peñas’ establishment and had always found it properly conducted.

The demand for a new trial, put forward as an alternative on perfecting the appeal to this Supreme Court, is based on the ground that the verdict is contrary to law, inasmuch as it was rendered without the defendant’s having been informed of the nature of the charge against him, as prescribed by section 318 of the Code of Criminal Procedure. But as it appears from -the copies forwarded that on the 13th of August, before the delivery of the judgment, the defendant had been informed in conformity with said section, a new trial cannot be granted, either for this reason or any other. There is, therefore, no reason to justify the claims of the accused, and I am of the opinion that the judgment appealed from should be affirmed, with costs against appellant.

Affirmed.

Chief Justice Quiñones and Justices Hernández and Mac-Leary concurred.

Mr. Justice Sulzbacher did not sit at the hearing of this case.  