
    The People, Respondent, v. Ayala, Appellant.
    Appeal from the District Court of Mayagüez.
    No. 613.
    Decided June 28, 1913.
    Appeal — Contradictory Evidence. — When the evidence is contradictory neither the verdict of the jury nor the judgment of the court should be reversed unless it be shown that they were influenced by partiality, prejudice or passion or that manifest error was committed.
    
      Motion to Quash — Delay in Piling Information — Discretion of Court. — Although the ruling on the defendant’s motion to quash the information because the period of 60 days had expired before the fiscal filed said information, is within the discretion of the trial court, said discretion is dependent upon whether the reasons alleged by the fiscal or brought to the cognizance of the court in some other manner are sufficient to justify the delay, for the provisions of section 448 of the Code of Criminal Procedure are mandatory.
    Id. — Construction of Law — DeLxVY in Piling Information — Reason for Delay. — The provisions of section 448 of the Code of Criminal Procedure require that in cases of both felony and misdemeanor the information should be filed within 60 days after the commission of the crime, and it is the duty of the court to order that the information be quashed when there are no good and sufficient reasons to justify the delay in filing it.
    Id. — Delay in Piling Information — Good Reasons for Delay — Awaiting Result of Wounds. — The victim in this case died on October 21, 1912, as a result of the wounds received on September 10, 1912. The accused was arrested on October 24, 1912, and from said date to February 10, 1913, when the information was filed, more than the 60 days prescribed by law, had elapsed. It was held that the reasons given by the fiscal to justify the delay in filing •the information, said reasons being based on the necessity of awaiting the result of the wounds received by the victim, were insufficient and that the district court erred in overruling the motion of the accused to quash the information.
    Id. — Time to Make Motion to Quash — Waiver.—Although it is the general rule that the proper time to make a motion to quash the information on the ground that it was filed after the expiration of the 60 days prescribed by law is at the time of the arraignment or immediately after the expiration of the 60 days, the failure of the accused to follow this rule does not destroy his right ' to make said motion at any time before the trial, but if said motion is made, after the trial dr after the jury is empaneled, said right of the accused may be considered as waived.
    The facts are stated in the opinion.
    
      Mr. Charles E. Foote, fiscal, for The People.
    
      Mr. Angel A. Vázquez for appellant.
   Mr.' Justice MacLeary

delivered the opinion of the court.

The appellant in this case was convicted of -the crime of involuntary manslaughter and condemned to four years’ imprisonment in the penitentiary at San Juan. From this judgment he took an appeal to this court on the first of April last and the case was heard here on the 24th of the present month on briefs filed by both parties and oral argument on the part of the fiscal.

Two grounds are alleged by the appellant through his counsel for the reversal of the judgment rendered in the court below. These are, first, that the court erred in overruling the motion to quash, the information, and, second, that the verdict of the jury is contrary to the evidence. We will com sider these in the reverse order. The evidence is contradictory in regard to the main facts of the case, three witnesses testifying in behalf of the accused that Juana Mercado, the deceased, was not present at the time and place at and in which it is alleged she received her death wound and only one witness testifying that she was present and was struck by the defendant, Primitivo Ayala. The judge of the trial court gave a lengthy and explicit charge to the jury, in which he reviewed the evidence fully and instructed them in what way to consider the same in arriving at the truth in regard to the matters alleged. No complaint is made of this charge. The verdict of the jury was against the accused, finding him guilty not of voluntary manslaughter,, but guilty of involuntary manslaughter, thereby giving credit to the one witness who testified to the guilt of the defendant over that of the three witnesses who supported his innocence. As the evidence was conflicting and there is nothing in the record to show that any improper motives influenced the jury or the court in the verdict or the judgment or to disclose any manifest error, they cannot be disturbed, for the reason assigned, that the verdict is contrary to the evidence.

Then we pass to the consideration of the other ground alleged for the reversal of the judgment, to wit, the error of the trial court.in refusing to quash the information. Prom the statement of the, case we find that before proceeding to the' selection of the jury the accused, through his attorney, made an oral motion based on the first paragraph of section 448 of the Code of Criminal Procedure soliciting the dismissal of the information presented in this case,' because the fiscal' had presented it to the court after the expiration of more' than 60 days from the time that the accused was arrested in this cause bn October 24, 1912, the information being filed' on February 10, 1913. Section 448 of the Code of Criminal Procedure reads as follows:

“Section 448. — Tbe court, unless good canse to the contrary is shown, shall order the prosecution to be dismissed in the following eases:
‘ ‘ 1. Where a person has been held to answer for a public offense, if an information is not filed against him within sixty days thereafter ;
“2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within one hundred and twenty days after the filing of the information.”

The fiscal opposed this motion alleging as a reason that although it was true that the wound had been received on September 10 he had to await the final result of the wound, which did not take fatal effect until October 21, and that after this date the fiscal was absent and the case was in course of study and preparation of the evidence until the presentation of the information and that, besides, when the accused was brought into court he waived whatever objection he might have had to the delay by entering a plea of not guilty. - The trial judge dismissed the motion to quash the information, giving his reasons in the following terms:

“Leaving aside the reasons which were presented by the fiscal to show why the information was filed after the term of sixty days had expired from the arrest of the defendant in this cause, the court is of the opinion that as soon as the information is presented, as it was so presented on February 10, 1913, and the defendant summoned for his arraignment, which was held on the' 17th of the same month and year, the latter having made no objection during the same to the filing of the information or the motion for nonsuit that he now files on the grounds upon which he relies at present, the court thinks that the defendant waived his right to file said motion for nonsuit for the reasons stated. The court, on the other hand, is of the opinion that if this were a misdemeanor or where a dismissal of the action is equivalent to an acquittal of the defendant and, therefore, that no information could be again presented for the same cause it being thus prohibited by law, if in said case the matter under consideration •should be a misdemeanor, the provision of law, as it is thought by the court, is mandatory and the action would have to be dismissed at the expiration of the term of sixty days, between the date of the arrest .and the filing of the information. But as this is a case of felony the dismissal of the prosecution would not amount to an acquittal of the defendant inasmuch as the fiscal would be entitled, with leave' of the court, to file a new information against the defendant for the same crime, which action could not be prevented by feason of the dismissal. And this being the case, the court thinks that by granting a motion to satisfy the wishes of the defendant himself the ends of justice would be almost defeated, which finally would only cause a delay in the proceedings, in view of the fact that the defendant could be again detained by the fiscal and the action begun anew, and the suit would not terminate until the court should render a judgment after considering the evidence. For these reasons the court dismisses the motion.”

It is true, as contended by the fiscal, that the disposition of such a motion as the one presented here is left largely to the discretion of the trial court, it being its province to decide upon the question as to whether or not there is good cause shown to justify the delay in the presentation of the information. See The People v. Folcastro, 17 P. R. R., 91; Ex parte Lizardi, 7 P. R. R., 352, 353; The People v. Quilichini, 7 P. R. R., 261, 262; Ex parte Arroyo, 15 P. R. R., 119; The People v. Rivera, alias Panchito, 9 P. R. R., 454. There are many other cases commenting upon this section, but these are the leading ones and make reference to the others. It will "be observed that the trial court in this case failed to exercise the discretion confided to it by the law and based its decision not on the cause shown for the delay in the presentation of the information, but on the ground that the accused, when brought into court for arraignment, waived any objection which he might have to the information by entering his plea •of not guilty. On a careful review of the opinion given by the trial judge' in support of this ruling we are compelled to regard the interpretation which was then and there put upon section 448 of the Code of Criminal Procedure as erro-neons. If tliis construction of tlie said statute should be accepted, it would be equivalent to a practical repeal or direct disregard of tlie intent of tbe Legislature in cases of felony and tlie effect would be to confine section 448 to misdemeanor cases only. ’ When tbe time prescribed by tbe law lias expired for tbe presentation of tbe information and tbe accused seeks to bave tlie charge against him dismissed on that ground it is necessary that some good and sufficient reason should be presented by tbe fiscal, or found by tbe court from other sources, to explain tbe delay. If no such reason is apparent, it is tbe duty of tbe court to order the dismissal. Tbe court has no discretion in tbe matter independent of the good cause shown which is mentioned by the statute. The law in regard to tbe matter is mandatory. Tbe discretion of tbe court is confined to determining whether or not the cause for tbe delay is sufficient, but if no reason whatever is presented by the fiscal or otherwise found by tbe court, there is nothing on which judicial discretion can be exercised. Then, the District Court of Mayagiiez ought not to have brushed aside tbe reasons advanced by the fiscal without taking them into consideration at all and should not bave decided this motion on other grounds which are not prescribed by the statute and which the law does not justify. The fiscal presented three reasons to excuse this delay. The first, which is worthy of consideration, is that he was under the necessity of awaiting the result of the wound — that is to say, while the woman was in the hospital being treated during the 40 days which ensued before her death. Of course, the officer could not determine prior to her -death or recovery whether an information should be presented for manslaughter or for assault, aggravated or otherwise. But we believe that in all cases proceedings should be promptly taken and that on many occasions it is not necessary to wait for the final result of the wound and that an information could be presented, for example, for assault with intent to murder, and if the victim after-wards dies within the year and the day prescribed by law from the result, of the wounds which had been received, the accused could be prosecuted for murder or manslaughter, as the facts might require.

The second reason assigned by the fiscal for the delay was that he was absent, yithout attempting in any manner to explain the reasons existing for such absence. This is entirely insufficient and does not deserve a moment’s consideration.

The same may be said of the third reason assigned by him, that he was engaged in the study and preparation of the evidence, without attempting to show in any manner why the case should require such a long course of study and preparation. In fact, the record shows that the matter was investigated by the municipal judge and the evidence collated and prepared by him for the use of the fiscal.

Even if the first reason was accepted as a good one, the facts do not sustain the position assumed by the fiscal. The fatal blow was struck on September 10, 1912, and the injured woman died on October 21 following, more than 40 days thereafter. Passing over the period of time which elapsed between these dates, and taking as the point of departure the date even subsequent to the death of the wounded woman, or, say, October 24, 1912, on which day it appears from the record that the accused was arrested, it results that from said date until February 10, when the information was presented, there had elapsed much more than 60 days, the time fixed by the statute, and, therefore, the district court, in view of the fact that the reasons presented by the fiscal were manifestly insufficient, ought to have ordered the dismissal of the information, and in not doing so committed a fundamental error which requires the reversal of the judgment from which this appeal has been taken.

With regard to the argument of the fiscal maintaining that the motion for dismissal was presented too late, we would say that the. said motion having been filed before the jury was empaneled to sit upon this case was in ample time. It is true that generally' these motions should he presented at the time of the arraignment, or better still, immediately after the expiration of the time fixed by the law for the presentation of the information or for the holding of the trial, hut delaying to make such a prompt presentation of his motion does not destroy the right of the accused to file it at any time before the trial of the case. If such a motion should be presented after the trial, or even after the jury is empaneled, then, according to the decisions of the Supreme Court of California, the right of the accused may he considered as waived by implication. The People v. Hawkins, 127 Cal., 372.

The statute of California on this same subject is entirely similar to ours, being in the same words except a's to the time allowed for the presentation of the information. For a clearer understanding of the scope of section 448 of our Criminal Code we may make an extract from a decision rendered by the Supreme Court of California.

“The defendant was convicted in the court below of the crime of larceny, and sentenced to the state’s prison for the term of four years. In support of his appeal to this court, he contends that the court below erred in overruling a motion made by him to dismiss the case. The motion to dismiss was made on the ground that he was not given a speedy trial. It was shown or stipulated, in support of his motion, that the information against him was filed on the seventh day of August, 1888; that he was arraigned and entered his plea of not guilty on the twelfth day of the same month; and that he had never made any application for, nor was there any postponement of, the action in his behalf or on his application. The motion to dismiss was made on the nineteenth day of March, 1889. No showing was made on the part of The People, or any attempt made to show any valid reason for delay. The Constitution guarantees a speedy and public, trial to every person charged with crime. (Const., art. 1, sec. 13). The legislature has provided what shall constitute a reasonable time within which a defendant shall be brought to trial. Section 1382 of the Penal Code provides: ‘The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: 1. When a person has been held to answer for a public offense, if an indictment is not found or an information filed against bim wit,bin thirty days thereafter - 2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the filing of the indictment or filing of the information.’ The court below, in denying' the defendant’s motion, said: ‘ The question you raise I have considered. before, and under my construction of the law, it is discretionary, and not mandatory, and I will presume that the court was engaged in the trial of other causes.’ "We think this is not a proper construction of the law. A party charged with crime has the constitutional right to a speedy trial, and the court has no discretionary power to deny him-a right so important, or to prolong his imprisonment without such trial beyond the time provided by law. The statute is imperative. ‘The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed. ’ Here no cause for delay was shown. It was enough for the defendant to show that the time fixed by the statute, after information filed, had expired, and that the case had not been postponed on his application. If there was any good cause for holding him for a longer time without a trial, it was for the prosecution to show it. The court could not presume it. Under the facts as shown the case should have been dismissed, and it was error to deny the motion. As to what is meant by a speedy trial, independent of a statute like ours, see Nixon v. State, 41 Am. Dec., 601, and note 604. Under a statute similar to ours, the Supreme Court of Kansas held that a defendant was entitled to be discharged on a writ of habeas corpus where his case had not been tried as required by statute. (In re McMicken, 39 Kan., 406.) ” People v. Morino, 85 Cal., 516, 517.

It lias also been said by tbe same supreme court that tbe sickness of tbe trial judge or any one of tbe jurors after tbe evidence bas been introduced, or tbe fact that tbe court is busy in tbe trial of other causes, may be considered as a sufficient reason for tbe delay of tbe trial of a case. People v. Cline, 74 Cal., 575; People v. Giesea, 63 Cal., 345; People v. Buckley, 116 Cal., 146; Ex parte Fennessy, 54 Cal., 101; Ex parte Clarke, 54 Cal., 412.

Then, carefully considering tbe whole record, tbe arguments and tbe authorities on this point, we are of tbe opinion that tbe court below bas made a serious error in overruling the motion presented for the dismissal of the information.

For these reasons the judgment should he reversed and set aside and the cause remanded to the court , below with instructions to proceed in the further consideration of this case in accordance with the principles of law set forth in this opinion.

Reversed with instructions to the loiver court to proceed in accordance with this opinion.

Chief Justice Hernández and Justices del Toro and A1 drey concurred.

Mr. Justice Wolf signed stating that he concurred in the judgment.  