
    The People, Plaintiff and Respondent, v. Crespo, Defendant and Appellant.
    Appeal from the District Court of San Juan, Section 2, in a Prosecution for Murder in the First Degree.
    No. 653.
    Decided July 31, 1914.
    Murder in Pirst Degree — Malice Aforethought — Onus Pbobandi. — In a case of murder in the first degree the onus probandi that the accused killed his victim deliberately and with malice aforethought is on the prosecution.
    Id. — Premeditation and Deliberation — Evidence.—When, as in the case at bar, evidence is introduced to show that the victim carried jewelry or money; that some days before his death the accused asked permission to carry a weapon, which request was granted; that immediately after the crime the victim said nothing about his money, but only asked the first person whom he met to take care of the goods he was selling; and it being admitted that there was no other motive for the crime, it must be concluded that the fact that the accused asked permission to carry a weapon is compatible with the desire to protect his principal and himself during their travels, and that the whole evidence is compatible also with an accident or with a sudden quarrel between the two men, under which circumstances it is manifest that the elements of premeditation and deliberation have not been proven in this ease.
    Id. — Instructions to Jury — Murder in Second Degree — Homicide.—The fact that the trial judge in this ease gave only special instructions as to the crime of murder in the first degree and not as to murder in the second degree and homicide, constitutes a fundamental error which requires the reversal of the judgment.
    
      ID.-STATEMENT OE VICTIM-RES GESTAE-STATEMENT IN ARTÍCULO MORTIS. — ■ The victim in this case charged the first person whom he met after being stabbed to look after his wares, but shortly afterwards said that he had been stabbed and, on being questioned, said that Josefino Crespo was his , assailant. It was held that such evidence was admissible as part of the res gestee and that the fiscal could not maintain on appeal that such evidence was admissible as a dying statement, because when the said evidence was objected to in the trial court the fif.eal stated that he offered it as part of the res gestee.
    
    Evidence — Res Gestae. — Determining whether a part of the evidence constitutes a part of the res gestes or not is the province of the court, and the jury has the right to consider that part of the evidence in conjunction with all the evidence introduced in the case.
    Id. — Instructions to Jury — Circumstantial Evidence. — In cases depending on circumstantial evidence the court should instruct the jury regarding the nature of such evidence, and when, as in the case at bar, only a portion of the evidence is of such character, the judge should explain it in his instructions.
    Instructions to Jury. — The statement by the judge in his instructions to the jury that the accused had stood mute and had not explained to them how the crime was committed, constitutes a fundamental error as this might induce the jury to believe that it was necessary for the accused to offer evidence in explanation of his conduct.
    The facts are stated in the opinion.
    
      Mr. José de J. Tisol for the accused.
    
      Mr. Charles E. Foote, fiscal, for The People.
   Mr. Justice Wole

delivered the opinion of the court.

The information in this case reads as follows:

“The fiscal files an information against Josefino Crespo for the crime of murder in the first degree, a felony committed as follows: On or about June 17, 191-2, within the jurisdiction of Rio Grande, which forms part of the judicial district of San Juan, the aforesaid Josefino Crespo unlawfully, voluntarily, and maliciously, and in a treacherous, deliberate, and premeditated manner, assaulted and wounded Tomás Comas with a knife with the ■ intention of killing him, inflicting a deep wound in his left lumbar region and dividing his large intestine in the lumbar colon, the curves of the small intestine as well as the arteries and blood vessels of the peritoneum layer, from which wound he died a short time thereafter. This act is contrary to the law in such case made and provided and against the peace and dignity of The People of Porto Rico. (Signed) Jaime Sifre, Assistant District Fiscal. The foregoing information is based upon the testimony of witnesses who were examined under oath and I believe there is just cause for presenting tbe same before tbe court. (Signed) Jaime Sifre, Assistant District Fiscal. Sworn to and signed before me tbis 27th day of July, 1912. (Signed) R. Diaz Collazo, Assistant Secretary of tbe District Court"of San Juan.”

After a trial before a jury tbe defendant was found guilty of murder in tbe first degree and was sentenced to be banged.

Tbe appellant assigns nine grounds of error. In none of them is tbe attention of this court directly drawn to tbe fundamental error in tbe case, although such error is suggested in the appellant’s discussion of tbe court’s instructions. The fundamental error: in tbe case is tbe failure of tbe evidence to make out a ease of murder in tbe first degree. Tbe proof is as follows:

Tomás Cardona testified that on June 17 he was working on tbe farm of Nicolás García, in tbe ward of Sabana of Rio Grande, when between 7 and 8 o’clock a." m. be saw Tomás Comas pass by, at a distance of about two or three cuerdas, carrying a valise. He was accompanied by another person, whom the witness did not know, and tbe said person was also carrying a valise.
“Dolores Rivera testified that about June 17, in the morning, be was working on tbe farm of Nicolás García, in the ward of Sabana of Rio Grande, with Tomás Cardona, when between 7 and 8 o’clock he saw Tomás Comas pass by accompanied by a young white man of medium size, whom he did not know but whom he identified later. Pointing to the defendant, the witness answered the fiscal that he thought that was the person who accompanied Tomás Comas; that he looked like him. That they were walking along, one carrying a basket and the other a valise; that on the day on which Tomás Comas passed by with that other person Tomás Comas was killed in that ward and that he remembers that day.
“Jesús Mercado, Senior, testified that in the month of June he lived on the property of Nicolas Garcia in the ward of Sabana of Rio Grande, near Luquillo, where he was working with one of his sons, Jesús Mercado, Junior. That while he was working he heard a loud cry of ‘Ay!’ which he thought was uttered by some person who had fallen from a bread-fruit tree, the cry having come from near the bread-fruit tree; that he sent his son to see what had happened; that later he went to his son and there found his son and Tomás Comas sitting on tbe bed, and after be had asked the witness’ wife for a glass of water he fell back and died there from a knife-thrust which had been given him from behind; that he knows Jose-fino Crespo who was taken to the house of Nicolás García and held there until the police arrived; that he saw the knife with which Comas was wounded, and it was a large knife and covered with blood.
“Jesús Mercado, Junior, testified that in the month of June he was living in the ward of Sabana; that on the morning of the 17th of the said month he went out to work with his father on the farm of Nicolás García and somewhere between 8 and 9. o ’clock in the morning he heard some cries, and he said to his father, ‘Papa, listen to what is going on, ’ and his father sent him to the house because he believed that it was his sister who had fallen from the tree, and upon arriving at the house he found his young sister crying, and she said to him that Tomás Comas had come there wounded; that Tomás Comas was on his mother’s cot; that Nicolás García ordered him to catch a horse and go to the village or town to tell about what had happened; that when he went to catch the horse he heard a noise in some bushes and he saw a person going along without a hat, and he went toward him and caught hold of him and asked him what his name was, he replying ‘Josefino’; that then he told him he was going to take him to the house because the dead man had said that Josefino had killed him; that Nicolás García then came along and the two of them took Josefino up to the house. Upon being asked by the fiscal whether the person referred to was in the court-room, he answered ‘Yes’ and pointed to the defendant. That when the witness arrived at the house Tomás Comas had already died. Upon being asked whether the defendant said anything to him to the effect that he was not the person who committed the act, he replied that the defendant tried to get away and said, ‘Let me go, I am not the person.’ That about 20 or 25 days after the act was committed the sheath of the knife was found where it had been hidden in the hills and also a little book which had some letters in it and was covered with dirt, and he delivered it to the owner of the property. The sheath being shown him, he identified it. That before the act was committed he had seen Jose-fino Crespo walking with Tomás Comas; that his mother hold him that the deceased had declared to her before he died that Josefino had killed him.
“Nicolás García testified that about the month of June he was living in the town of Luquillo and had a farm in Sabana; that Tomás Cardona, Dolores Rivera, Jesús Mercado, Sr., and Jesús Mercado, Jr., are peons of his; that on June 17 while he was walking around Ms farm be heard a cry of ‘Ay, aunt! I’m killed; they have given me a knife-thrust. Ay, aunt! come quickly.’ That he looked and saw a person running up by the wire fence toward the mountain, and when the witness arrived at the house he found Tomás. Comas on a cot and he had a knife wound in his back from which blood was flowing. That Tomás Comas was a peddler and took Josefino, the accused, with him as his peón; that upon arriving at the house Tomás Comas, who was already in a dying condition, told him in the presence of the woman of the house and himself that his peón, Josefino Crespo, had wounded him, and then in three or four minutes he died; that he went at once to look for the person whom he had seen run toward the mountain and found Jesús Mercado holding Josefino Crespo, who resisted, and they took him to the house, he being violent and trying to escape. That when the witness arrived at the house he found a knife on top of the valise and took charge of it, delivering the valise to the woman to take care of it; that when he arrived where Josefino Crespo was the latter told him that he was not the one who had wounded Tomás Comas; that he was running after the person who had done so, the person being a negro who had a handkerchief around his head. That when they took Josefino Crespo to the house where Tomás Comas was he took the dead man’s hat, saying that' it was his, and witness told him it was not, and later Crespo’s hat was found near a stake in the ground; that it was a felt hat. Witness identified the hat which Josefino Crespo wore and a knife which had a black handle; that when he saw the knife in the house it was covered with filth up to the handle; that when he arrived at the house and found the wounded man the latter said to him, .‘Don Nicolás, Josefino Crespo, my companion, stuck a knife in me,’ and at that moment he was conscious but died immediately; that before the deed was committed he had seen Josefino Crespo in the town with Comas; that between the time when he heard the cry and the time he arrived at the house and found Tomás Gomas there about three or four minutes transpired, the place where the refuse from the house was being about one cuerda’s distance. The witness identified the pair of trousers which was shown him as the same trousers which Josefino Crespo wore on the day of the crime and pointed out the place where they had a smear of filth, which trousers the fiscal offered in evidence in order to corroborate the testimony of the witness, and to show that after he had stabbed the victim he wiped the knife on the trousers.
“Monserrate Comas testified that he is an Insular policeman; that Tomás Comas was his brother and that he knows Josefino Crespo. who'for sometime ha'd been tbe peón of bis brother, who "was a ped-' dler; that along.'.abbufi the’’first of tbe month of June or tbe last-of tbe. month of:: 'May; :'3;912-, - ihis brother carried a knife and a revolver, which he thought1 ¡wds: a1 bull-dog revolver, and the knife, a long one: with a black:handle-, frfiich article he 'carried in the basket; - that one night, when1'the "witness was not yet an Insular policeman, his brother came to:him in his-house and asked him to count some money— about $1,500 — ahd'ithen" Josefina Crespo asked him for one of the weapons, telling hini'that he did not need two, and his brother replied, ‘ Take whichever: you like/' You may take the knife or the- revolver, just as you choose,.’: and-Josefino Crespo said1, ‘I'prefer- the'knife.’ That this incident -'about "the: knife occurred about ten or twelve days before the crime/ - The fiscal showed the knife to the witness and he identified it. - That the said weapon was given to Josefino Crespo by his brother--in the'presence of the witness; that the reason his brother got .him. to mount the $1,500 was, as he said, ‘You have been working such-a long time, áre you still poor?’ and he replied, ‘No; I have some money:.’' --Then the witness said ‘About how much money have you?’-andhe replied, ‘Count it,’ and he counted it. That he car-' ried the money-in a package in- one of his pockets, and he always car-' ried the money.wherever he went; that it appears that his brother was in love with "Josefino’s sister and that due to this circumstance he had employed-Josefino, whom he had told on two or three occasions that he did not meed him; that prior to this time Josefino and' his brother had had-some* quarrels but they had passed off; that Jose-fino invited his- brother to-' go out with him several nights, but as his brother carried'that amount of money he did not care to go out at night'; that' when" his brother died the witness was a policeman in Juncos and that he had hot been able to find the $1,500 because the-accused was more-'than-a quarter of an hour-on the mountain and had time to'hide it.
“Carlota Mercado testified that she lives in Luquillo; that,in the month of June she -lived in Sabana; that, she knew Tomás Comas who formerly'was a', laborer and later a peddler; that she knew Jose-fino Crespo by'sight/ Upon being asked whether the person who accompanied Tomás Comas was present, she replied affirmatively and pointed to the’áacused;' that .what had happened on June 17 was that Tomás Comas, wa¡s-killed; that the witness being in her house she looked out of ther-window between 8 and 9 in the morning because she heard loud cries of ‘Ay! ay!’; that she looked and saw Tomás Comas coming running, who saw her and said, ‘Gome! take this knife and carry it to your-house and go get the pack of notions-.which'is under the bread-fruit‘tree’-;' that‘this witness’ took'the" 'khife"and went: t'o' the 'bread-fruit tree to get the notions; and"found there the valise' which had some filth: oh it;.' that' she brought'it to 'the house an'd.’when, she got' there Tohias'Coih'as'had'died; ' that'she took'only a&ery short/ tiihé to return with the valise' because the place' between'where the: valine was and' the house was only about" a 'cil'erclaxs distance';-' that" she but the knife on' top of the valisé; that' it was a long knife with a'black handle, and'Was covered with blood and'filth; that she did' not's'eé the wound and did not know where it'was, and that Tomás Comas died from the knife-thrust which was 'given him; that she' saw Josefino Crespo in the house that same day when her brother; and Don Nicolás brought him there.
Fabriciana Robles testified that she lives in the ward of: Sabana of Río Grande; that Carmen Mercado and Carlota are her daughters that on the 17th of June, when she was away from the 'house'at-a' brook, she heard cries in her house and on coming back saw that it was'.Tomás Comas; that she asked what had happened to him ¡and' he said that he had been stabbed, and then she asked him who had' done it and he replied that Josefino Crespo, his assistant; that' Coihas went into the room and laid down on the bed and died there, immediately after saying that Josefino Crespo was the one who had stabbed him; that Tomás Comas showed her the wound and when he had made the statement to her there was nobody present but Nicolás Gar-cía and herself; that she saw Josefino Crespo when they brought him' to'the house; that the deceased called her ‘aunt’ and as he did not-see her in the house he called for his aunt, saying ‘Ay! ay! I have: be.en stabbed’; that she saw the knife, which was a long one with, a black handle, and she identified it when shown it by the fiscal.
“Carlos Gao-cía de la Noceda testified that he is the municipal, judge of Rio Grande; that on one of the days of the month of June, he went to Duquillo, it being the same day on which the crime was committed, and he saw Josefino Crespo; that he did not notice anything about his clothing which attracted his attention, but he did notice on a pair of trousers some filth, pointing to the place where he saw it; that the witness took charge of the property of Comas.
- “jbr. Miguel Veve testified that he is a physician and surgeon; that'he knows Tomás Comas-and his family; that about June 17 or 18 he had occasion to attend Tomás Comas, who did not show any, extra signs of violence, not even the slightest scratch, but he died of a wound on the left side made by. a sharp instrument, the wound being quite large; that the stab was undoubtedly toward the front and the instrument was quite long, from 9 to 10 centimeters; that tbe weapon cut tbe colon on its external margin and severed the intestines in different places, causing innumerable incisions and at tbe same time a rupture of'the veins, producing an internal hemorrhage, which could not be avoided because the wound was in the thickest arterial section; that Tomás Comas died of the wound thus received; that when Tomás Comas received the wound he must have been on the same level as the aggressor, for it cannot be explained otherwise; also, both Tomás Comas and the aggressor must have occupied crouching positions, the latter inclined forward; that a person may walk along for ten minutes with such a wound and go a distance of one cuerda, being able to speak at the same time, as the hemorrhage would proceed very slowly; that it would be all the more reasonable for him to be able to walk and talk for a distance of one cuerda if it were true, as said in this case, that the knife was left in the wound; that Tomás had a strong constitution and could retain his mental faculties up to the moment of his death; that this kind of a wound would not produce unconsciousness, but, on the contrary, the brain would remain entirely clear.
“CeUna Mercado testified that in the month of June she lived in the house of Nicolás García; that she knows Tomás Comas and Jose-fino Crespo who went together; that on the said 17th day of June Tomás Comas arrived at her house wounded and the witness went 'to call her mother who was washing clothes in the brook; that when Tomás Comas arrived at the house he was screaming and carried a knife-which he gave to her sister Carlota. A knife being shown to the witness, she said it was the same one which Tomás carried in his hand. That from the time she saw Comas to when she returned from calling her mother was about ten minutes. That when Comas said to her mother that it was Josefino Crespo who had stabbed him there was no one present but her mother and herself, and that between the time when Comas made this statement and the time he died was about ten minutes.”

From this recital of the proof the following facts appear, namely:

That Tomás Comas was killed by a knife-thrust at the hands of Josefino Crespo, the defendant. It is unnecessary to recite the individual data from which this conclusion is arrived at because it is the ultimate fact in the case, and in considering as we shall whether the proof is sufficient, like a demurrer to the evidence, all the evidence of the fiscal must be given full force, and, as it happens, there was no other evidence in the case.

It being clearly shown that Comas was killed by Crespo, .the burden of proof was cast upon the G-ovemment to show that Josefino Crespo deliberately, and with malice aforethought, killed Tomás Comas. When Crespo was caught by the two men he was hiding, and said, “Let me go; I am not the person.” There was testimony tending to show that Comas carried treasure or money. There was also proof that some ten or twelve days before the death of Comas Crespo asked that he be allowed also to carry a weapon, which request was granted, and he chose the knife. Now, the request for a weapon on the part of Crespo was perfectly consistent with the desire to protect himself and his master on their trips, Crespo being the servant of Comas. There was not the slightest proof of any attempt on the part of Crespo to get possession of any part of the money carried by Comas, and it is admitted that no other motive for the •crime existed. And the evidence shows that Comas, immediately after the crime, gave no thought to his treasure or money, but asked the first person he met to look after the notions, the stock in trade which he was selling and from which he obtained a livelihood. The whole proof is perfectly consistent with an accident or sudden quarrel between the two men. We do not discuss the evidence at greater length because we think it is evident to the mind that the elements of premeditation or deliberation have not been shown in this lease.

In his eighth assignment of error the appellant maintains that the court should have instructed the jury' with regard to the degrees of crime other than murder in the first degree, the judge’s instructions having related solely to murder in the first degree. It is true, as pointed out by the fiscal in various parts of his brief, that no specific instructions were asked .on .the part of the defendant, "but this court, following the Code of Criminal'Procedure, has never hesitated to examine the instructions to find if any fundamental error has been committed. "We think that there was a fundamental error, in not giving instructions with regard to murder in the second degree and also with regard to homicide. We do not .know exactly what the theory of the judge below was with regard to deliberation or premeditation. There may have been some elements that appealed to his mind as showing such deliberation or premeditation, but we think it is clear that there was room for doubt as to murder in the first degree by reason of nobody having the slightest idea of what took place between the two men while they were in the mountain alone. ‘ Under any veiw of the case, given the somewhat singular circumstances of the death, the defendant was entitled to instructions with regard to the lower degrees of the crime.

A good deal of the legal struggle in this case has been over the question of whether the statements made by Tomás Comas very shortly before his death were admissible in evidence. The fiscal maintains that such statements were admissible either as part of the res gestee or as a dying declaration. We do not think the fiscal should be heard in this court to say that this evidence was admissible as a dying-declaration, because when the defendant made his objection to the evidence as hearsay the fiscal said he was offering it as part of the res gestae. We think the fiscal urges with some show of reason that the objected evidence was admissible as part of the res gestae. It is true that Comas directed’"-the •first person he met after the stabbing to go and look for the notions, but very shortly thereafter he said that he had •been stabbed, and upon being asked, he said that Josefino Crespo had stabbed him. We see no error in the admission of this evidence. Perhaps if the defendant had requested it, the court might have given the instructions in regard to what was properly res gestee in the .case.. Otherwise,-as the fiscal maintains, the question of whether. a;,particular piece of evidence is res gestee or not is for the court, and the jury is entitled to consider the particular testimony along with all the other proof in the case. The statements and outcries of the dying man, given in such close connection with the main event, had all the marks of spontaneity, and, as we have stated, were properly admissible.

We agree with the appellant that in a case dependent upon circumstantial evidence the court should give an instruction as to the nature of circumstantial evidence and the fiscal agrees with this conclusion. He maintains, however, that only part of the proof was circumstantial. The court, on the other hand, alluded to the proof as being circumstantial, leaving it open to doubt whether he was not referring to the whole of it, and hence we think that an instruction with regard to the nature of circumstantial evidence was proper, if not necessary.

We believe, also, that the instruction of the court to the jury to the effect that the only evidence was for the-prosecution because the defendant had not testified nor explained to the jury how the crime was committed, could not lead the jury into the error of believing that it was necessary that the accused must introduce evidence explanatory of his conduct; and although the court instructed the jury later that the'silence of the accused should not be construed as presumptive of his guilt, yet if the jury arrived at the conclusion from'the instructions that the accused was bound to explain the occurrence, the injury was done and therefore we must conclude that that part -of the instructions' was at least misleading and capable of leading the jury into, error.

We have discussed the errors assigned by the appellant neither in the order named nor exactly as raised, but we have covered substantially the errors with the exception of one or two which were not prejudicial and would not be likely to recur at a new trial.

For the errors indicated and principally because the case fails to show murder in the first degree, the judgment must be reversed and the case remanded for a new trial.

Judgment reversed and case remanded for a new trial.

Chief Justice Hernandez and Justices del Toro and Aldrey concurred.

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