
    The People v. Otero.
    Appeal from the District Court of Mayagüez.
    No. 2.
    Decided June 27, 1903.
    Appeal — Sufficiency of the Evidence — Pbovince of tbial Coubt and Juby. — The appellate court will not review the judgment of a lower court solely on the ground of the insufficiency of the" evidence, when there is some evidence to support the verdict, it being the province of the trial court and jury to determine from all the circumstances the weight and credibility to be given to the testimony submitted.
    Id — Void Vebdict. — A verdict of the jury not rendered in accordance with law is a nullity and forms no part of the record on appeal and will not be considered by the appellate court.
    -Cobbeotion of Vebdict. — No error is committed by a trial court when a void verdict is refused and the jury is directed to correct the same and to find the defendant either guilty or not guilty.
    The facts are stated in the opinion.
    
      Mr. Eduardo Acuña, for appellant.
    ' Mr. del Toro, Fiscal, for respondent.
   Mr. Justice MacLeary

delivered the following opinion of the court:

The defendant in this case was accused and convicted on the verdict of a jury, before the District Court of Mayagüez, on the 30th of April, 1903, of voluntarily permitting the escape of two prisoners from the jail in that City, of which he was warden at the time.

The facts proven, as set .forth in the judgment of the court, are as follows:

. “That on the 5th day of January last, the accused who had been appointed prior to that date and discharged the duties of warden of the jail in this city, ordered one of the turnkeys of said institution to allow five prisoners who were at the time serving sentences, to go out of the jail without a guard, and among which prisoners were José Rodríguez Medina and Juan Ramón Mercado, who escaped, and up to the present time have not been captured, Julio Otero Rivera having therefore voluntarily permitted their escape, thus violating article 153 of the Penal Code”.

The trial court sentenced the accused to pay a fine of two hundred dollars, and six months at hard labor in the penitentiary and to pay the costs of the proceedings. From this judgment, in proper time and form, he prosecuted his appeal to this court. He bases his appeal on three, grounds, which will be considered in their order:

1 ‘1. — From the testimony of the witnesses, as it appears in the record of the proceedings, the charge that Warden Otero ordered that the escaped prisoners be permitted to go out of the jail without guards, is not proven; the terms in which that particular part of the proceeding was recorded, that is that they left the jail by permission of the warden, without any guard, goes to show that he authorized them to be allowed to go out, but not in the manner in which they left, that is without any guard whatever; and as the fault does not lie in the fact of whether or not the prisoners left the jail by permission of the warden, but in that he facilitated their escape, voluntarily permitting them to leave without being guarded, it is clear and evident that the statements made by the witnesses cannot establish that element of delinquence which is essential in this case, inasmuch as it refers to the manner of committing the crime which according to article 153 of the Penal Code must include a wilful authorization and consent to the escape, or a fraudulent co-operation in the same, in none of which ways can it be said from the result of the evidence that the accused committed the crime”.

On this point it is sufficient to say that this court will not reverse a judgment solely on' account of the insufficiency of the evidence to convict the defendant. If there was any evidence whatever adduced before the court below it is the province of the trial court and the jury duly impanelled to try the case, to judge of its sufficiency. Courts of original jurisdiction are better qualified to consider the credibility, the sufficiency, and the weight to be given to the testimony of witnesses and the circumstances surrounding each case, than any appellate tribunal. The witnesses appear in person, and their manner of testifying, the answers given to the questions propounded, and the various circumstances attending the production of the evidence, all properly go to influence the jury, as well as the court, in determining what effect such testimony should have in making up the verdict and the judgment, and deciding the guilt or innocence of the accused.

It is clear to this court that there is some evidence on which the verdict and judgment in this case could have been based, and indeed even if it were necessary to consider the sufficiency of the evidence, taken all together, it appears to be amply sufficient to fully justify the court and jury in the conclusion at which they arrived.

The second ground on which the appellant relies for a reversal of the judgment in this case is as follows:

“2. — That this is so is shown by the first verdict rendered by the jury, by which the accused was declared “involuntarily guilty”, which verdict constitutes the best defense of the accused, inasmuch as it shows that although the departure of the prisoners was authorized and effected without their being accompanied by guards, there was not on the part of the accused the deliberate intent which constitutes the crime; wherefore, in the opinion of the jury, the absence of all criminal intent was proven, as also the exception -which is referred to in paragraph 5 of article 39 of the said code.”

On this point attention must be given to the fact that the first so called verdict, not being rendered in accordance with the law, is a- nullity, and should not in reality form any part of the record in this case, and cannot be considered by this court. It was not in proper form. It did not answer the questions submitted by the court. It neither found the defendant “guilty’’ nor “not guilty” of the offense of which he was accused, and for that reason had no more effect than if it had been a piece of blank paper. Such being the case, it must be discarded altogether, from the consideration of this court. The third ground on which the appellant relies for a reversal of the judgment of the court below, is a corollary depending.on the second, and reads as follows:

“3. — And Judge Erwin upon rejecting the first verdict of the jury, and requiring another which turned out to be a conviction, openly violated the law, placing the jury in the difficult position of declaring the guilt of a man which was neither believed in by the jury nor proven, it being compelled to follow a formalism which is improper considering the character of these trials; inasmuch as the verdict of “involuntarily guilty” which was rendered the first time implies, in whatever manner it may be analyzed, a declaration of absolute innocence, and if said declaration was not sustained afterwards, in the second verdict, it was due without doubt to the fear that it might appear to be in direct contradiction of the declaration of guilt first announced, and which is revealed in a marked manner in the recommendation of the ■greatest clemency which accompanies the second verdict. Therefore, if the first verdict tended towards an acquittal, Judge Erwin should not sacrifice it, on account of the way in which it was expressed, on the altar of a legal formalism very much in contradiction of the principles of all wise penal legislation, which although tending to accomplish the punishment of the guilty party, does not reject in any case, nor at any time, that which may be in his favor.”

In addition to what has been said under the second point herein treated, it may be observed that the trial judge did not infringe upon the province of the jury in refusing to receive the so called verdict, which was improper in its form and contrary to law, and for that reason null and void, but the court acted in accordance with its plain duty in the premises and sent the jury back to bring in their verdict declaring the defendant either guilty or not guilty, as they should have done in the first place.

The jury as it had a right to do, recommended the accused to the clemency of the court, and the trial judge considered the recommendation of mercy made by the jury, arid fixed the punishment very low, at one-twentieth part of the term of imprisonment allowed by law and four per cent, of the fine which might have been imposed.

We find no error whatever in the judgment of the court in ■convicting the defendant under article 153 oí the Penal Code which prescribes the punishment of a jailor “who voluntarily permits the escape of any prisoner,” with imprisonment in the penitentiary not exceeding ten years and a fine not exceeding five thousand dollars.

The evidence adduced upon the trial of this case is sufficient to support the verdict of guilty and the judgment of conviction. The prisoner has had a fair trial and a merciful sentence, and he should be content to serve out his term.

Finding no error in the judgment of the court below, of which the defendant has any right to complain, the judgment of the District Court will be in all things affirmed, and a judgment prepared in accordance with this opinion.

Affirmed.

Chief Justice Quiñones and Justices Hernandez and Fi-gueras concurred.

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