
    People v. Díaz, alias ‘‘Martillo.’’
    Appeal from the District Court of Humacao.
    No. 31.
    Decided February 27, 1904.
    Bill or Exceptions. — A bill of exceptions should contain only that portion of the evidence which is necessary to present the questions of law upon which the exceptions are based, and the judge of the lower court should eliminate all irrelevant matter.
    Id. — Appeal—Evidence—Verdict.—The Supreme Court cannot reverse a judgment by virtue of an appeal based upon the ground that the verdict is con trary to law or to the evidence, when all of the evidence admitted upon the trial is not submitted for its consideration and questions of law arising during the trial do not appear in the bill of exceptions. In sueh case it will be presumed that the verdict was rendered in accordance with the law and the evidence.
    New Trial — Newly Discovered Evidence. — In order that a new trial may be granted on the ground of newly discovered evidence, it is not only necessary to show that diligence was exercised to obtain said evidence before the trial, and that the same was discovered subsequent thereto, but it is also nec-eessary to show what efforts were made so that the court may be able to determine whether the greatest possible diligence was exercised.
    Id. — Where upon a motion for a new trial upon the ground of newly discovered evidence, the testimony of witnesses is offered as a part of the same, it is necessary to show the reason for not offering such evidence upon the original trial and the manner in whieh the party came to discover that sueh evidence would be .favorable to his ease.
    Dismissal oe the Case. — When in a criminal case the trial is not held within 120 days after the filing of the information, and there is just cause therefor, it is not proper to order a dismissal of the prosecution, and a motion for that purpose should also he made in the lower court.
    Evidence — Impeachment op Witnesses. — In order to impeach a witness on the ground that he has made at other times statements inconsistent with his present testimony, it is necessary that the statements "be related to him with the circumstance of time, place and persons present, and that he asked if he made such statements, and if so, allowed to explain them. If his statements be in writing, they must be shown to the witness before any question is put to him concerning them.
    The facts are stated in the opinion.
    
      Mr. Ramos (Juan R.), for appellant.
    
      Mr. del Toro, Fiscal, for respondent.
   Me. Justice HebNÁNdez

delivered the opinion of the court.

The case submitted to the decision of this Supreme Court. is an appeal taken by Pedro Díaz, alias “Martillo,” from the; judgment of the District Court of Humacao, which condemned him to death.

The appellant was accused on December 29, 1902, by the Fiscal of Humacao, of the crime of murder in the first degree, committed as follows: “On the night of the 29th of August last, while Octavio Reyes Guzman was passing in front of Juan Martinez Espino’s house, in Santa Eosa street, where Pedro Diaz was hidden, the latter came out and fired a shot at Reyes, who fell to the ground, dying shortly afterwards. This act was committed with premeditation and malice. 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.”

On January 13, 1903, the accused appeared before t- . court and denied the accusation. He prayed for a reasonable time to answer the same, and was given for the purpose until the 21st of said month. But the day before, counsel for defendant filed a petition praying that the Fiscal be required to deliver the list of witnesses which, in compliance with section 142 of the Code of Criminal Procedure, should have been filed with the information and delivered to him in order to answer the same. By decision of the court the request prayed for was granted; and before the Fiscal had presented the aforesaid list, counsel for the defendant filed a pleading denying the information against his client and entering a plea of not guilty, with a statement of the witnesses and experts he intended to avail himself of.

February 16 having been set for the jury trial, on the 10th of said month he requested that Frank Feuille, Andrés B. Crosas, Bafael Tirado Yerrier, Francisco Cepero, López Ná-ter, and Francisco Cepero López Gómez be also summoned as witnesses for the defense, which was ordered to be done on the same day.

The record does not contain the order of the court suspending the trial; but it appears therefrom that on February 17 counsel for Pedro Diaz filed a petition wherein he stated that said trial having been suspended the previous day because there was not sufficient time in which to hold it, the court being occupied with other matters, he prayed that the 21st be set for the trial, and in case the drawing of a new jury was thought advisable, that it be proceeded with and said jury summoned to appear on that day.

The court made an order on April 28, setting the trial for May 18, and citing the parties and witnesses proposed by the defense.

On the 6th of aforesaid May, counsel for Pedro Diaz presented a writing waiving the testimony of witnesses Frank Feuille and Andrés Crosas, as he understood that the former could not appear at the trial, being at the head of the Department of Justice, nor the latter, by reason of his many occupations; there being, moreover, the circumstance that the testimony of either was no longer of importance, as both had testified at the trial of Luis Delgado and others, for perjury, which is closely related to the present case, and their testimony appeared in the record of said trial, he having, besides requested that there be issued a certificate of the record of the proceedings against Luis Delgado and others for perjury and of the judgment rendered at said trial, as also of the jury’s verdict.

There were brought to the record the minutes of proceedings against José Moreno, Luis Delgado, Santiago Martinez, and Manuel Santori for the crime of perjury, having reference to the sessions held on February 16, 1903, from which it appears that at said trial lion. Frank Feuille, lion. Francisco López Cepero Náter, Captain Wilcox of the Insular Police, Francisco Bussó Cabrera, Andrés Crosas, Martin Julbe and Pedro Astacio, testified as witnesses for the prosecution, and Celestino Alonso, as a witness for the defense; and it is to he noted that Francisco López Cepero Náter declared that Martin Julbe and Pedro Astacio, while testifying in the case of the occurrences in the drug store, had made no charge of murder against Pedro. Diaz, alias “Martillo,” and Andrés. Crosas stated that he had not decreed the detention of Pedro Diaz on the charge of murder, because he had not deemed it advisable, and Wilcox testified that Bussó Cabrera had been called by the assistant attorney to sign the accusation, and when he responded to the call he did not know what he was wanted for, and voluntarily signed it. The particulars of the testimony given by the other witnesses do not appear, but the record shows that the jury had rendered a verdict of not guilty, the defendant being accordingly discharged.

It should be mentioned that at the jury trial of Pedro Diaz, alias “Martillo,” Dr. Fernando C. González, Pablo Font Mar-telo, dallo Ortiz, Bafael Martinez, Francisco López Cepero Náter, José Aponte, Pedro Astacio and Martin Julbe, testified as witnesses for the prosecution, and Martin Julbe, Pedro Astacio, Francisco López Cepero Náter, Octavio Ramirez, Juan Martinez Espino, Luis Berrios Borges, and Luis Delgado Carrion, as witnesses for the defense, and that at the request of counsel for Pedro Diaz, account was taken of the fact that Martin Julbe had denied having testified before the justice of the peace in this matter, and that with respect to Pedro Astacio, the Fiscal, relying on section 244 of the Code of Criminal Procedure, had objected to any interrogatories, having taken an exception thereto.

It should likewise be mentioned that counsel. for Pedro Diaz offered as documentary evidence the certificate, which was attached to the record, of various facts brought out at the trial of Luis Delgado and others for perjury, whereupon the Fiscal presented a motion for the reconsideration of said evidence, the same being declared impertinent by the law judge, notwithstanding the 'opposition of the defense to such motion, the exception taken by counsel being entered upon the record.

The evidence having been taken, upon the close of the arguments the law judge charged the jury, who retired to deliberate, and after asking for instructions, which were given, rendered a verdict of guilty against Pedro Dias, alias “Mar-tillo,” on the 21st of May of last year.

Counsel for defendant filed a petition on the 25th of the same month, praying that .a new trial be held before another jury, because in his opinion the verdict rendered was contrary to law and the evidence, and, moreover, he had discovered new evidence favoring his client, said discovery having been made after the verdict had been rendered. In support of his demand he alleged: 1. That it being a principle of law that all persons accused must be considered innocent until the contrary is proven, and a juridical axiom that he who charges the commission of a crime must prove it, the Fiscal should have proven that Pedro Diaz was not only the person who killed Octavio Reyes Cuzmán, but also that he had acted under some of the circumstances constituting the crime of murder in the first degree, and that this he failed to do, for it has only been shown that Octavio Eeyes Guzmán was killed. 2. That although it is true that three witnesses, namely, José Aponte, Pedro Asta-do and Martin Julbe testified that they were present when Pedro Diaz killed Octavio Eeyes Guzmán, and the latter’s mistress, Olalla Ortiz, told the jury that the defendant had committed the crime, because the victim had so informed her shortly before his death, it is also true that this evidence had been destroyed by that for the defense, which showed that Eeyes Guzmán was wounded, not at the place where he fell, hut in front of Noy a Julbe’s drug store in Humacao, on the famous night known as that of the “occurrences at the pharmacy,” and that in the street where he fell, almost lifeless, no shot had been fired that could have caused the death of Eeyes Guzmán, or any other person. 3. That after the verdict of guilty was delivered the defendant had discovered that there lived in the city of Humacao, Juan and José Ber-trán Casañas, who could inform the jury and court about facts connected with the present case, and from whose testimony it appears that the witnesses Pedro Astacio, Martin Julbe, and José Aponte were not present when Eeyes Guzmán was wounded and that the latter had not been killed by the defendant. One of these depositions, according to information he had just obtained, was on file with the record of proceedings instituted by Special Judge Crosas. There was, besides, another witness, namely, José Martínez Espino, who had just assured him that he had seen Octavio Eeyes Guzmán as he passed by, wounded, and that while at a short distance from his house, being by this time unable to keep on his feet, had fallen upon the ground.

The Fiscal, in an oral argument, opposed the preceding motion, praying that it be overruled; and the law judge, having asked him (counsel for defendant) if he would swear that he had exercised all necessary diligence in order to obtain evidence, and that now offered had been acquired after the trial, he did swear to that effect, whereupon the judge set the following day for the hearing of said evidence, against which decision the Fiscal took an exception.

On the aforesaid day, at a session held for the pnrpose, counsel for Pedro Diaz filed the affidavits of five witnesses, namely, José Martínez Espino, Feliciano Doble Pon, Jnan Gfuzmán, Lnis Castro, and José Cintron Peña. The first of these testifies that on the night of August 26, 1902, having heard some shots he ordered his store to be closed, and leaving one of the doors ajar, he had remained there. He then saw a man coming who was moaning, and recognized him as Octavio Eeyes Guzmán. After walking a few steps the man fell. In the street where the witness lives and Eeyes fell no shot was fired. The second witness testified that on the aforesaid night of August 26, while in front of the drug store of Noya Julbe, where the incident occurred resulting in the death of several persons, he saw in the crowd Octavio Eeyes Guz-mán, whom he heard when he said: “They have killed me!” and then disappeared. The witness did not see him again, but learned afterwards that he had died. The third witness testified that he was present when the incident at the drug store took place, and saw there, among other persons, Octavio Eeyes Guzmán, whom he heard moaning and saying that he had been killed, and disappeared immediately after. The fourth testified that while in Calle Nueva on the day of the disturbance (August 26) Eosa Peña came along and called him. He then heard two shots in the direction of Noya Julbe’s drug store, and when they went to see what had happened and were in front of Eamón Piñol’s, they met Octavio Eeyes with his hands upon his breast, and being asked by Eosa Peña what had occurred, he said that he had been killed, and proceeded on his way up the street, witness taking the opposite direction. The fifth witness testified that on the night of August 26, between eight and nine o’clock, he was in Calle Nueva, and hearing shots, he ran to see what was the matter, and on Ms way, wMle in front of Pinol’s bouse, be met Octavio Eeyes, who, upon being asked wbat bad occurred, replied: “They have killed me!” after which the witness continued toward the scene of the disturbance, the wounded man taking the opposite direction.

After hearing the allegations of the parties the judge overruled the motion for a new trial, to which exception was taken by counsel, based on paragraph 3 of section 296 of the Code of Criminal Procedure, and pronounced judgment as follows: “In view of the verdict of the jury, Pedro Diaz, alias ‘Martillo,’ shall be hanged on the 7th of August of the present year, as soon as the judgment becomes final, and such other pronouncements as may be proper, and may God have mercy upon his soul.”

Prom this sentence the defendant took an appeal, which was allowed, he having previously filed a bill of exceptions, which was signed by the law judge, and reads as follows:

“In the District Court of Humacao. The accused, Pedro Diaz, alias ‘Martillo,’ through his counsel, Ulpiano Valdés Cajas, Esq., files the following exceptions to the decision of the court.
“1. Under paragraph 3 of section 294 of the Code of Criminal Procedure.
“On May 6, 1903, counsel for the accused filed with the court a petition offering as evidence to be submitted at the trial a certificate of the minutes of the oral proceedings held against Luis Delgado and others for the crime of perjury, as also certificates of the judgment entered and of the verdict rendered by the jury, from which certificates the innocence of the accused was established. Said evidence was admitted and declared pertinent by the court, and by an order made on the same day the certificates applied for were ordered to be issued.
“When, at the jury trial of the cause against the accused Pedro Diaz, counsel made use of this evidence, it was ruled out by the presiding judge, although it had been admitted and the certificates issued by the clerk, who is an official with power to issue such documents.
“In aforesaid certificates it appears that when, the day after the death of Octavio Reyes, the witnesses Pedro Astacio and Martin Julbe testified before Justice of the Peace Francisco López Cepero, in charge of the preliminary proceedings, they did not bring any accusation against the defendant Pedro Díaz, and that Andrés Crosas, commissioned by the Attorney General as special judge to investigate the crime, stated that he did not deem it advisable to order the apprehension of Pedro Diaz.
‘ ‘ There can be no doubt that the refusal to admit this evidence has caused very serious injury to Pedro Diaz, inasmuch .as it was intended to impeach the veracity of the principal witnesses for the prosecution, namely, Astacio and Julbe, who, had they been asked, in conformity with section 245 of the Code of Criminal Procedure, why their present declaration, that they had seen the accused fire a shot at Octavio Reyes, did not accord with their testimony at the proceedings instituted at the time of the occurrences in Iiumacao on the night of August 26, 1902, when Reyes was killed, could not have given a reason for their statement; for at the preliminary proceedings, when the witnesses Astacio and Julbe testified, it was sought to ascertain who was the person or persons responsible for the death of Octavio Reyes and of the other victims, and in the testimony then given by them nothing was said against Pedro Diaz, notwithstanding that at the trial they declared that they had been eyewitnesses to the killing of Reyes.
“And so certain is it that their previous testimony does not accord with the testimony given at the trial, that in the document ruled out by the court, it is also stated ‘that Hon. Andrés Crosas did not detain Pedro Díaz, alias “Martillo,” because he thought it not advisable. ’ It is to be noted that said Crosas had been commissioned by the Attorney General as special judge to investigate all the occurrences taking place in Humacao on the night of August 26, 1902, and that the witnesses Astacio and Julbe had testified before him. Had they accused ‘Martillo,’ how could Judge Crosas have thought that it was not advisable to issue an order for the arrest of a person charged with so serious a crime as murder?
“2. Under paragraph 3, section 296, of the Code of Criminal Procedure.
“Paragraph 7, section 303, of the Code of Criminal Procedure, authorizes the defendant to apply for a new trial, after conviction, but before judgment has been rendered, when new evidence-is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. In the present case — and so it appears, under oath required of counsel for ‘ Martillo ’• — defendant, after his conviction, and before judgment was pronounced, discovered new evidence in his favor, which, despite the diligence displayed by the defendant, he had been unable to discover before the trial, and therefore was not in a position to produce-at the hearing of the ease.
“The express provision of section 303, under paragraph 7 thereof,, has been strictly complied with by the defendant, inasmuch as the-affidavits of five witnesses were taken before the clerk of the district court, who is an official having power to administer oaths, and these affidavits are of such material importance for the purposes of the judgment, that in disregarding them section 296 of the Code of Criminal Procedure is no doubt openly violated, for which reason exception was taken.
“Among the declarations that were not admitted is found that of José Martínez Espino, who asserts that on the night of the occurrence (August 26), on hearing shots fired, he ordered his store to be closed, leaving one of the 'doors ajar, where he remained and saw a man come along moaning, and as he passed by him he recognized Octavio Eeyes Guzmán, whom he saw fall after he had walked a few steps, and that in the street where he lives no shot had been fired— a statement which demolishes the testimony of the two more important witnesses for the prosecution, namely Pedro Astado and Martin Julbe, who testified that Pedro Diaz, alias ‘Martillo/ was standing at the corner of Juan Martinez Espino’s and as both were coming along with Eeyes, he had advanced and fired the shot that killed him. There is also the testimony of Feliciano Doble and Juan Guzmán, who testify that they were present on the night of August 26, at the scene of the occurrences in front of the drug store, when many shots were fired; that Eeyes Guzmán was there and that they heard him cry I am wounded! ’ which shows beyond a doubt that Eeyes received his wound at that place and not at the one mentioned by Astacio and Julbe, and this is borne out by the testimony of José C. Peña and Luis Castro — likewise ruled out — to the effect that they had met Eeyes in front of Eamón Pinol’s house, with his hands on his breast, and on being asked what was the matter, exclaimed, ‘I have been killed!’ Iiumaeao, June 10, 1903. Ulpiano Valdés, attorney at law. Approved, Salvador Fulladosa, judge commissioned by tbe Attorney General to bear tbis case. A true copy. Enrique Lloreda clerk.”

Tbe foregoing bill of exceptions does not conform to tbe provisions of section 299 of tbe Code of Criminal Procedure, according to wbicb it should have contained only so much of tbe evidence as was necessary to present tbe questions of law upon wbicb tbe exceptions were taken, and tbe law judge, instead of signing it, should have stricken out all other matter contained therein, as provided by said section. Tbis be failed to do, for be admitted tbe bill of exceptions, notwithstanding it contained matters foreign thereto, wbicb pertain to tbe jurisdiction of tbe court. There is a point in tbis bill of exceptions to wbicb — considering tbe conciseness of tbe minutes of tbe trial, wbicb do not contain tbe testimony of Pedro Astacio and Martin Julbe — some importance should be attached. It is tbe one relating to tbe statement of Astacio and Julbe to tbe effect that Pedro Diaz, alias “Martillo,” was at tbe corner of Juan Martinez Espino’s bouse, and at tbe moment when they were passing with the deceased be stepped up and fired tbe shot that killed Eeyes Guzman.

In tbe appeal taken tbe following grounds are alleged:

1. That tbe verdict and sentence are contrary to law, because at tbe trial tbe only thing proven was that Eeyes Guzmán bad been killed by a shot from a firearm; and although it is true that tbe witnesses Pedro Astacio, Martin Julbe, and José Aponte testified that they bad seen Pedro Diaz, alias “Martillo,” when be fired upon Eeyes Guzman, none of them testified that Pedro Diaz bad acted with premeditation and treachery, or that he bad laid in wait for Eeyes Guzmán in order to kill him, for wbicb reason tbe circumstances axe lacking which determine the crime of murder in tbe first degree, according to section 201 of tbe Penal Code, and tbe malice and premeditation necessary for tbe existence of murder, whether in the first or second degree, being also absent, it is evident that the jury conld not give the verdict it gave against Pedro Diaz, alias “Martillo,” nor the conrt condemn him to death; nor conld it he alleged that the verdict and sentence are based .upon the testimony of Olalla Ortiz, the victim’s mistress, who asserted that the latter while in the agony of death had told her that the defendant, Pedro Diaz* was the person who had killed him,'because she was not an eyewitness. Moreover, she did not say anything as to the manner in which Octavio Eeyes had been killed.

2. That the verdict and the sentence are inconsistent with the evidence, for although Pedro Astacio and Martin Julbe testified before the jury that while they were both coming along in company with Reyes, the defendant appeared and fired upon them, wounding and killing said Reyes, this testimony is destroyed by that of Luis Delgado, who testified that he had seen the victim in front of Julbe’s drug store taking part in the bloody happenings of the night of August 26, and there saw him when he was wounded; and it is also destroyed by other witnesses, who testified that while these occurrences were going on they saw the defendant coming out of his house, and it is evident, therefore, that, not possessing the gift of ubiquity, and being in his house when Octavio Reyes was wounded, he could not have been guilty of the crime imputed to him.

Counsel for the defendant alleges before this Supreme Court the following grounds for the appeal:

1. Violation of paragraph 1, section 11, and paragraph 2, section 448, of the Code of Criminal Procedure, inasmuch as a sworn accusation having been made against the defendant by Francisco Bússó Cabrera, November 25, 1902, for the crime-of murder committed on the person of Octavio Reyes Guzman, three months before, viz., on August 26, he was ordered to be committed to jail on the same day the accusation was made; and an information Raving been filed on the 20tR of December following, for the crime of murder in the first degree, said information being denied by Pedro Diaz, the 16th of February following was set for the trial, which was postponed without just canse. ' This was objected to by his counsel, who requested that the hearing be had before the jury already impaneled or before another that might be selected for the purpose, which demand was overruled, and an order issued on April 13, setting the hearing for May 18, that is to- say, one hundred and twenty days after filing the information, and, therefore, when the prosecution should have been dismissed.

2. Under the exception authorized by paragraph 3 of section 294 of the Code of Criminal Procedure, inasmuch as there having been brought to the trial a certified copy of the minutes of the proceedings had against Luis Delgado and others, for perjury, in which proceedings Justice of the Peace Francisco López Cepero testified that at the investigation held in connection with the occurrences that had taken place in Humacao on the night of August 26, Pedro Astacio and Martin Jnlbe, who were witnesses, did not bring any charge against Pedro Díaz, alias “Martillo,” the testimony of Andres Crosas, special judge, commissioned to investigate said occurrences, that of Captain Wilcox, then a member of the Insular Police, and of other persons, being also given, the court, however, when asked by counsel for the defendant to order that said minutes be read to the jury, the Fiscal having objected thereto, sustained said objection, and thereby rejected evidence which was perfectly consistent with the provisions of section 245 of the Code of Criminal Procedure, since said evidence would have shown the scant veracity evinced at the trial by Astacio and Jnlbe, whose false or contradictory statements were also made manifest by the certi„fied copy of the testimony of Special Judge Crosas.

3. Under the exception authorized by paragraph 3 of section 296 of the Code of Criminal Procedure, inasmuch as the defendant had applied for a new trial, thus exercising the right allowed him by paragraph 7 of section 303, he haying discovered new evidence in his favor, establishing his innocence, which evidence he had been unable to make use of at the trial, notwithstanding the reasonable diligence displayed by him; and said petition was denied, despite his sworn application and the affidavits of so important eyewitnesses as José Martínez Espino, owner of the house at the corner of which, Julbe and Astacio assert, Pedro Diaz was concealed when he fired upon Reyes, and Feliciano Doble, Juan Guzman and others, who assert that they saw Octavio Reyes coming' from the drug store already wounded and crying “I have been killed!”

The Fiscal was of the opinion that neither the verdict nor the judgment was contrary to law and the evidence, and therefore he contested the appeal and requested that the same be dismissed.

Having set forth all the facts that appear from the copies forwarded to this court for the determination of the appeal, and stated the grounds on which the same is based, as alleged both before the Humacao court and before this Supreme Court, we shall now proceed to consider the sufficiency or insufficiency of said grounds.

In order to obtain a new trial the defendant alleges that the verdict was contrary to law and the evidence. It appears from the record that Fernando P. González, Pablo Font Mar-telo, Olalla Ortiz, Rafael Martinez, Francisco López Oepero Náter, José Aponte, Pedro Astacio, and Martin Julbe, testified at the trial as witnesses for the prosecution, and the aforesaid Pedro Astacio, Martin Julbe and Francisco López Cepero Náter, and Octavio Ramírez, Juan Martinez Espino, Luis Berrios Borges and Luis Delgado Carrion, as witnesses for the defense. But in the record of the trial no mention is made as to what each of these witnesses had testified to, and although in the bill of exceptions, prepared in the manner described, it is stated that the two most important witnesses for the prosecution, namely, 'Pedro Astado and Martín Julbe, testified that Pedro Diaz was at the corner of Juan Martinez Espino’s house, and had coiné out at the moment both were passing by with Eeyes and fired the shot that caused the latter’s death, said bill of exceptions makes no mention of the testimony given by the other witnesses, notably José Aponte, who, according to the instrument of appeal filed with the Humacao court, was also an eyewitness, and Olalla Ortiz, who, according to the same instrument of appeal, received from the lips of her dying paramour the information that he had been killed by Pedro Diaz, alias “Martillo.” The testimony of these four witnesses, taken in connection with that of the other witnesses for the prosecution and for the defense who testified before the jury, led the latter to the conviction that Pedro Diaz was guilty; and this Supreme Court, being unacquainted with the details of all the testimony given at the trial, is not in a position to declare that the verdict was contrary to law and the evidence. It is the defendant’s part to produce the proof of such a plea by means of a bill of exceptions, as prescribed by section 299 of the Code of Criminal Procedure; and this proof was not properly produced, whence it is to be presumed that the jury pronounced its verdict in accordance with the law and the evidence submitted.

A new trial, therefore, cannot be granted under paragraph 6 of section 303 of the Code of Criminal Procedure, nor under paragraph 7 of said section, that is to say, on the ground that the defendant has discovered new evidence which he could not have discovered and produced at the trial, although he had displayed the greatest reasonable diligence.

True, counsel for appellant, on being questioned by the court, swore that he had displayed all the efforts necessary to obtain evidence, and that he had learned of the new evi-deuce discovered by Mm after the trial bad been held; but tMs sworn declaration was not sufficient for the desired purpose, inasmuch as he failed to state what were the efforts made by him in order to satisfy the court tha.t the greatest reasonable diligence had been exercised to discover and produce at the trial the new evidence which he afterwards tried to avail himself of.

It is to be noted that upon applying for a new trial, counsel proposed Juan and José Beltran Casañas, and José Mar-tínez Espino, as witnesses who were to testify in favor of the defendant; and yet, when producing the evidence, he forgot about the first two mentioned, and remembered only the third, who testified, together with Feliciano Doble Pou, Juan Guzman, Luis Castro and José Cintrón Peña, the last four of whom had not been named in the petition for a new trial.

The reason for failing to produce the testimony of the two first mentioned witnesses does not appear, and a logical presumption would seem to indicate that their testimony was not likely to have been favorable to the defendant, as otherwise it would not have been dispensed with.

The five witnesses who testified are all residents of Huma-cao ; there is not the slightest indication that they had been, absent between November 26, 1902, when the crime was committed, and May 18, 1903, when the trial was held, nor has counsel explained how he came to find out that the testimony of these witnesses could be favorable to Pedro Diaz, alias “Martillo.’’

It is, indeed, quite improbable that Pedro Diaz, who appeared before the Humacao court on January 13, 1903, when he pleaded not guilty to the information filed against him, and his counsel, who had made his first move in the case on the 20th of the same month, could have failed to discover all the evidence in favor of the defendant, before the trial, which was set for May 18, had they displayed the greatest reasonable diligence; and that at the mere announcement of a verdict of conviction, two days could have sufficed them to discover the new evidence on which their petition for a new trial is based.

The Humacao court, therefore, properly denied the new trial applied for by counsel for the defendant.

Nor can it be alleged that paragraph 1, section 11, and paragraph 2, section 448, of the Code of Criminal Procedure have been violated, for Pedro Diaz was arrested November 25, 1902, the very day he was accused of the crime, and the information against him was filed on the 29th of December following, the trial being set for February 16, 1903; but as it could not be held for lack of the necessary time, the attention of the court being taken up by other matters, as counsel for the defendant has himself admitted, the hearing had to be postponed to May 18, and if an earlier date was not set, it was probably because the jury does not sit permanently but at stated times.

There was, then, sufficient reason.for not holding the trial of Pedro Diaz within one hundred and twenty days after the filing of the information, and therefore the dismissal of the prosecution is not proper, nor was it demanded in the court below by the defendant, who thereby recognized that there was no good reason for such a demand.

There remains to be examined the ground of the appeal, based on paragraph 3 of section 294 of the Code of Criminal Procedure, namely, the court’s refusal to allow the reading of the minutes of the jury trial of José Moreno, Luis Delgado, Santiago Martínez, and Manuel Santori, for the crime of perjury, by which refusal, it is alleged, the defendant was deprived of the right granted him by section 245 of aforesaid Code.

The section in question reads: “A witness may also be impeached by evidence that he has made at other times statements inconsistent with his present testimony; but before this can be done the statements mnst be related to him, with the circumstances of time, places and persons present, and he mnst be asked whether he made snch statements,, and if so, allowed to explain them. If the statements be in-writing, they mnst be shown to the witness before any question is pnt to him concerning them.”

From the text of the law, as quoted above, it appears that the defendant could have impeached the veracity of the-witnesses Pedro Astacio and Martin Julbe, by showing that, they had previously made statements inconsistent with the testimony just given by them at the trial; but before resorting to this evidence, he was required to relate said statements to these witnesses, with the circumstances of time, places and persons present when made, and to ask them whether they had made such statements, and if so, allow them to explain their reason for making them; and if the statements were in writing they should have been shown to the witnesses, before putting any question to them with reference thereto.

It is not on record that after Astacio and Julbe had testified in the present prosecution, counsel for Pedro Diaz had impeached their veracity and related to them the contradictory statements they had previously made, that they might answer as to the truth thereof, and if made by them, explain the same. In the minutes of the trial there appears only the fact that Julbe had denied having testified before the justice of the peace with reference to the act in question, and as to Astacio, that the Fiscal had objected to the interrogatory, based on section 244 of the Code of Criminal Procedure, an exception thereto having been entered by him, which shows that the interrogatory was propounded, as otherwise the exception -would have been taken, not by tbe Fiscal, bnt by counsel for Diaz.

Moreover, in tbe minutes of tbe trial for perjury it is recorded that Francisco López Cepero Náter declared that As-tacio and Julbe, while testifying in tbe proceedings connected with tbe occurrences at tbe drug store, bad made no charge of murder against Pedro Diaz; but it is not known whether Astacio and Julbe testified in said proceedings, and, therefore, whether they had an opportunity to be examined with reference to the killing of the unfortunate Reyes Guzman. This witness, Francisco López Náter, also testified in the present trial, and, therefore, counsel for Pedro Diaz had an •opportunity to question him as to the statements, if any, made by Astacio and Julbe, while testifying in the proceedings connected with the occurrences at the drug store, although it cannot be asserted that he was so questioned, for neither in the minutes of the trial nor in the bill of exceptions does there appear any mention of López Cepero’s testimony.

As regards the testimony of Andrés Crosas, which appears on the minutes of the trial for perjury, it could not be brought here to impeach the veracity of the witnesses Asta-cio and Julbe, because Crosas, when questioned at said trial •as to the reason he- had for not ordering the arrest of Pedro Diaz, in view of the accusation of murder brought against the latter, replied that he had not deemed it advisable to do •so, which reply, instead of showing that Astacio and Julbe had not accused Pedro Diaz before Crosas, indicates that he had been accused, and the accusation might well have come from Astacio and Julbe, although not so-stated.

At all events, if counsel for Pedro Diaz sought to show that the witnesses Pedro Astacio and Martin Julbe had made no accusation against Pedro Diaz at the investigation of the incidents at the drug store, held by Justice of the Peace '.Francisco- López Cepero Náter, he should not have gone for this evidence to the minutes of the trial for perjury, but to those of the proceedings instituted for the purpose of investí.-' gating the occurrences at the drug store. By bringing to the present trial a certified copy of the testimony given by Asta-cio and Julbe at the investigation held by Francisco López Cepero Náter — which testimony, by the way,' may or may not have been given, for Julbe has denied in the present trial that he had testified before said justice of the peace, while Asta-cio ’s testimony is not known — counsel for Pedro Diaz could have obtained from the court permission to have their testimony read to Julbe and Astacio before questioning them with reference thereto.

The jury, then, did not require the minutes of the trial for perjury to be read to them on -the trial, because said minutes could not have given them any light for the purpose of appreciating the greater or lesser degree of veracity of the witnesses Pedro Astacio and Martin Julbe.

Briefly, the verdict of the jury does not appear to have been contrary to law or the evidence, nor has it been shown that the greatest reasonable diligence was displayed to discover, and produce in due time at the trial, the evidence submitted after the verdict had been rendered. Neither does it appear that there was a lack of good reason for postponing the trial one hundred and twenty days after the filing of the information, nor that the defendant was deprived of his right to impeach the veracity of the witnesses for the prosecution. The court, therefore, must affirm the judgment rendered by the court of Humacao, on May 25, 1903, with costs against the appellant.

Chief Justice Quiñones and Justices Sulzbacher .and Mac-Leary concurred.

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