
    People of Porto Rico, Plaintiff and Appellee, v. Susano Campán, Defendant and Appellant.
    No. 2395.
    Argued February 24, 1925.
    Decided April 8, 1925.
    1. Assault and Battery — Evidence—Suppression of Evidence — Presumption. —When the district attorney suppresses the testimony of witnesses called by him the presumption is that the evidence would be adverse if - produced.
    2. Id. — Self-demsnse.-—When a man whose wife is being insulted eomes to her defense and is assaulted by the offender and two other persons he is justified in using a revolver in self-defense.
    District Court of Aguadilla, Tomás Bryan, J. Judgment of conviction on a charge of assault and battery.
    
      Reversed.
    
    
      Buenaventura Esteves for the appellant. José E. Eigueras, Fiscal, for the appellee.
   Mr. Chief Justice Del Toro

delivered the opinion of the conrt.

The appellant assigns five errors as grounds for reversal of the judgment. Only one of them need he considered. The offense charged was aggravated assault and battery. The defendant was charged with having assaulted and battered Juan Torres with a revolver and the municipal court found him guilty. He appealed and was convicted in the district conrt and sentenced to pay a fine of $50, the minimum penalty fixed by law. The defendant pleaded that he had acted in lawful self-defense and now contends that the trial court erred in not so finding.

The evidence for the prosecution consisted of the testimony of Ramón Ríos, Juan López and G-abriel Torres.

Ríos is a policeman who visited the place on the night of the occurrence and testified that the defendant had “confessed to him that he had fired some shots at Juancho Torres.”

López testified as follows:

“While conversing with the owner of the shop and Juan Torres during a discussion between Juan Torres and Evarista Cordero, Su-sano Campán appeared in a threatening attitude, attempting to conceal one of his hands as if he were about to commit some act, whereupon Torres, who was standing conversing with Evarista Cordero, slapped Susano Campán, who drew a revolver and fired at him * * *. That Juan Torres and he are intimate friends; that he, Juan Torres, and Gabriel Torres were charged in the Municipal Court of San Sebastián with having assaulted and battered' Susano Campán; that Juan Torres was convicted in that case because he struck Susano Campán, but neither he nor Gabriel Torres was convicted, as they did not assault anybody.”

Gabriel Torres, Juan’s son, testified as follows:

“Juan Torres was engaged in an argument with Evarista Cor-dero and Campán came downstairs .... in a threatening manner, apparently with the intention of attacking my father, • whereupon Juan Torres dealt him a blow and then Campán fired a shot at him .... To begin with Evarista, the wife of the defendant, said to my father, who was in the street with some, friends arguing that the rent of the house belonged to him, that he should go to bed, to which he replied that he was a free man and she could not order him. Then she told him that he had better go to bed and not bother others by asking for money that did not belong to him, to which he replied that the money was his because the house which produced the rent was his property. She replied that the house was hers and he responded that if she intended to rob him of it then it might be hers.”

When Torres concluded the district attorney said: “I waive the rest of the evidence as cumulative.” After calling his first witness, Evarista Cordero, counsel for the defendant said: “I desire that it he made to appear in the record that this witness and others are listed on the information as witnesses for the prosecution; that the district attorney has waived their testimony as cumulative evidence, and that we call them in order to show that it is not cumulative evidence.”

Evarista Cordero testified in part as follows:

“That she lives in Muñoz Rivera Street of San Sebastián and Susano Campan is her husband; that on the 15th of November of the previous year they went to bed before 11 p. m. and shortly thereafter Juan Torres came into the shop called ‘El Tapao’ which is on the ground floor of the house where they lived; that Juan Torres began to insult her and her husband; that she would rather not repeat his indecent language; that she left the bed, covered herself with a sheet and went to the balcony and said to him: “ 'Look here, Juanito, do not go on with your provocation; it is eleven o’clock; what do you think other people will say?’ But he went on insulting them still louder, whereupon she withdrew into the house and her husband (the defendant) went downstairs. She went again to the balcony to hear what Susano would say to Juan Torres and what the latter replied, and Susano said: 'Look here, Juanito, do not expose me to public ridicule.’ Thereupon Juanito Torres struck him in the face and they clinched. The witness went inside to put on some clothes, but when she came downstairs it was quiet.”

Alfonso Rivera, another witness whose testimony the district attorney waived, said:

“When Evarista advised him to go to bed Juan Torres told her to hush, adding that she was a witch and had gone to Arecibo with that rascal on a spree, referring to Susano Campan. * * * Upon hearing this Susano came downstairs and told him not to mention his name any more, to which Torres replied that his grudge was not against him. Campan insisted and Torres, while giving a similar reply, dealt Mm a blow; then they clinched and Gabriel Torres, who was sitting on a folding chair, folded and raised it, going toward Susano Campán, while he and Torres moved about in the struggle. Juaneho López also approached the struggling men and thereupon Susano drew a revolver and fired toward the floor, Juan Torres being wounded * *

Manuel Méndez Liciaga, a druggist, testified that fie fieard Torres insult Evarista Cordero; tfiat “at tfiat moment Campán came downstairs and told Juan Torres not to insult him in tfiat manner and Juan Torres replied: ‘You are nothing but a rascal,’ and dealt fiim a blow, whereupon Susano Campán went after fiim and tfiey fougfit. With. Juan Torres were fiis sons Gabriel and Juancfio López. Gabriel Torres lifted a cfiair and went toward Susano Campán, and Juan Torres also went toward fiim. * * * Campán tried to avoid them, moving about to avoid the blows, but finally drew a revolver and aimed it at Juan Torres, telling him tfiat fie did not want to sfioot, to wfiicfi Torres replied tfiat he dared not, tfiat fie was a coward and a rascal. Then Susano Campán fired a shot at fiis leg.”

P. E. Rodríguez Rabell, another witness who, like the previous one, came down from the club upon hearing the noise, describes the occurrence similarly. The defendant also testified in fiis own behalf.

In our opinion the evidence shows clearly tfiat the defendant acted in, lawful self-defense. It must be borne in mind tfiat the district attorney wilfully suppressed the testimony of two witnesses and tfiat there is a presumption, here corroborated by the facts, “tfiat evidence wilfully suppressed would be adverse if produced.” Subdivision 5 of section 102 of the Law of Evidence (Comp. 1911,' p. 288).

Juan Torres insulted the wife of the defendant, who came downstairs in a more or less violent attitude, as was natural. The assault on the defendant was not justified, and whether he was attacked by one or by three, he exercised a lawful right in using his revolver as he did.

The judgment of conviction must be reversed and substituted by a judgment of acquittal.  