
    Ex Parte Bird.
    Application for a writ of Habeas Corpus.
    No. 25.
    Decided November 12, 1903.
    Cbimimal Law — Offenses—Crimes committed prior to the date upon which the new Penal Code took effect must be prosecuted in accordance with the old criminal procedure.
    
      Final Judgment — Judgments rendered in criminal prosecutions in accordance -with the old procedure do not become final until after the expiration of ten days allowed by section 81 of G. O. 118 of 1899, for the defendant to ■ appeal from said judgment.
    Habeas Corpus — If a defendant be committed to imprisonment by virtue of a judgment which is not final, his commitment is illegal and he should be discharged on a writ of habeas corpus.
    
    STATEMENT OE THE CASE.
    The writ of habeas corpus applied for by the petitioner having been issued, counsel for the applicant prayed that the hearing be continued and that the District Court of San Juan be required to send up the record in the original case prosecuted against the defendant Hobart S. Bird for libel against the autorities (injuria á la autoridad). An order was made, as requested, and upon the receipt of the said record a day was set for the hearing at which the petitioner Bird with his counsel Juan de Guzman Benitez appeared, as also the Fiscal of this Supreme Court who opposed the granting of the application.
    From the record in the case, forwarded by the District Court of San Juan to this Supreme Court, it appears that said case having been prosecuted against Hobart S. Bird, under the old procedure, for publishing in the issue of February 13, 1902, of the newspaper “The San Juan News”, of which he was editor, an article held by the court to be offensive to those in authority, the District Court of San Juan had, on September 19 of the same year, sentenced him to four months and one day of greater imprisonment (arresto mayor) to be served in the jail of this city, he meantime to be disqualified from holding any office or from excercising the right of suffrage, the costs of the proceedings to be taxed against him, which judgment was declared null and void by this Supreme Court on June 19 last, on appeal in cassation for error of procedure taken by the defendant, the case being restored to the stage it had reached when the error was committed, and a new hearing ordered to be had in accordance with the law. The case having been received by the District Court of San Juan and proceeded with in conformity with the provisions of the new Code of Criminal -Procedure, judgment was rendered by said Court on October 21 last, sentencing Hobart S. Bird to two months and one day of greater imprisonment (arresto mayor) to be served in the departmental jail, and costs. He commenced to serve the sentence on the same day, October 21, by virtue of a commitment issued for his confinement in the jail of this city, and directed to the official in charge of the public peace.
    
      Mr. Juan de Gkmndn Benitez, for petitioner.
    
      Mr. del Toro, Fiscal, for the People.
   Opinion of the Court.

Inasmuch as this case deals with the investigation and punishment of an offense committed prior to the date upon which the new Penal Code took effect in this Island, it should have been continued under the old procedure, as has been held by this Supreme Court in other analogous cases. The petitioner, therefore, could not have been committed to prison to serve out a sentence which had not become final, since the 10 days allowed by section 81 of General Order No. 118, for a notice of appeal from the judgment, had not elapsed.-a condition necessary to render the judgment final and in order that its execution might be proceeded with according to article 988 taken in connection with article 141 of the old Law of Criminal Procedure.

The imprisonment of the petitioner Hobart S. Bird, is therefore illegal, and he should be discharged, his case being provided for under paragraph 4 of section 483 of the Code of Criminal Procedure, because the commitment for his imprisonment, though it might be considered correct in form, has been issued in a case not allowed by law. The application for discharge made by the petitioner Hobart S. Bird is hereby sustained. He must accordingly be immediately set tree and his bail canceled. The record in the criminal cause in question against said Hobart S. Bird for libel against the authorities (injurias á la autoridad) is ordered to be returned to the District Court of San Juan.

Chief Justice Quinones and Justices Hernández, Sulz-bacher and MacLeary, concurred.

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