
    Ex Parte Torres. 
    
    Appeal from the District Court of Ponce.
    No. 48.
    Decided December 7, 1903.
    Criminal Law — Information.—The fact that a new information has no* . been filed within the period of fifteen days, as provided in section 148 of the Code of Criminal Procedure, is not sufficient ground for the discharge of the ¡defendant, it being a matter resting within the sound discretion of the trial court, and the time may be extended after the expiration of the period provided by the statute.
    Id. — Habeas Corpus. — The writ of habeas corpus is not the proper remedy to secure the discharge of a prisoner under section 148 of the Code of Criminal Procedure, it being only necessary to make application before the court having cognizance of the matter. .
    Id. — Section 483 of the Code of Criminal Procedure, in prescribing that a prisoner may be discharged in any of the cases specified therein, does not make it the imperative duty of the court to discharge a prisoner, but leaves it to a sound judicial discretion.
    Id. — Habeas Corpus. — If on habeas corpus proceedings it appears that the applicant is clearly guilty of an offense, or there is good reason to believe him guilty, it is the duty of the court having cognizance of the proceedings to remand him to custody.
    
      The facts are set forth in the opinion.
    
      Mr. del Toro, Fiscal, for respondent.
    The appellant made no appearance.
    
      
       This is not a translation, hut was originally rendered in English.
    
   Me. Justice MacLeaky

rendered the following opinion of the court:

This is an appeal taken by Antonio Torres from an order’ made by Hon. Sr. Soto Nusa, one of the district judges in the Ponce district, denying the liberation of the prisoner Torres, on application for the writ of habeas corpus.

The application is made for the following reasons, as set forth therein:

“ 1. That his client was accused of grand larceny, the trial of which the court ordered suspended, supposing that the act constituted the offense of abuse of confidence.
“2. That the court ordered the representative of the Attorney General to formulate a new information against his client, for the offense of abuse of confidence.
“ 3. That article 148 of the Code of Criminal Procedure provides, that said new information shall be presented within the term of fifteen days, and if at the expiration of this time it has not been presented, the court should set the accused at liberty.
“ 4. That those fifteen days have elapsed, without the Fiscal having presented said information, and without the court having extended the time in which it may be presented.”

The judge refused to discharge the prisoner for the reasons following:

1. In the first place, it is necessary to take into account the legal nature of the benefit received by the present law in force, designated as habeas corpus, in order to establish once more the judicial doctrine current in courts of justice, and prevent that which in itself is nothing more than a benefit or privilege from being converted into a means of eluding the legal and just imprisonment of a person, or ridiculing the action of justice, placing the supposed criminal beyond the reach of penal responsibilities, succeeding in impugning it against the interests of society, which demands that crime be inquired of and the criminal punished.
2. So the writ of habeas corpus is, as has been said, a benefit estab lished by tbe Law of Criminal Procedure, in accordance with the Constitution, to guarantee the liberty of the citizen, which cannot be deprived or abridged except within the limits strictly provided by the penal laws, an extraordinary recourse which these same laws give every person who has been in an unjust manner deprived óf his liberty, and which recourse can be, and should be had, only in cases where there is no ordinary means of obtaining the liberty of such person.
3. The legal question, therefore, in this case to be determined, is whether the petitioner could have made use of any ordinary means of obtaining his liberty without resorting to the writ of habeas corpus, and if so, whether he made use of the same without obtaining any favorable result, exhausting in this way the ordinary legal remedies.
4. It is indubitable, it being in the evidence, that the petitioner has not availed himself of all the ordinary remedies in use, inasmuch as he has not made use of or at least there exists no proof of his having done so, the article 148 of the Law of Civil Procedure, on which he bases his petition for writ of habeas corpus, as that article imposes upon the courts which try the case, and which are the ones having jurisdiction of the same, the duty or obligation of discharging the prisoner when the same has ordered the Fiscal to present a new accusation, and has allowed the term of fifteen days to expire without the same having been done, and without the court having made use of its discretion of the privilege of extending said term, it is natural to conclude that the court making no declaration in the matter, that is to say, not pronouncing any resolution declaring the discharge, or extending the time for the presentation of the new information, and from that very moment the petitioner had the right correlative with the alternative duty of the court, of to ask the same to comply with that duty, requesting the discharge of his client; and in not making use of that remedy, which at once implies an ordinary recourse as a natural consequence of the situation of the petitioner within the proceeding, it is as clear as the midday light, that he failed to avail himself of the usual and current means of obtaining his liberty.
5. On the other hand, the only point of departure in order to make the remedy of habeas corpus possible in this case would have been a formal declaration made by the court which tried the case, denying the acquittal, and thus showing that all ordinary remedies had been exhausted, and as there is no evidence of this, the habeas corpus has been prematurely employed. If tó this argument it be added that the jurisdiction of the judge sitting in this case extends only to the strict hearing of the application for habeas corpus, without being permitted to take cognizance of other matters which the law reserves to the more ample jurisdiction of the district courts, in the formiand manner in which they are organized by the General Order No. 118, according to the Foraker Bill, it will be easy to understand the' reason for the denial of the writ of habeas corpiis for which petition was made by the attorney for the prisoner, Antonio Torres.
6. • Moreover, and in general terms, the mere fact that the Fiscal did not present the new accusation within the term of fifteen days, only implies in any case, an infraction of the rules of the proceeding, and it is a known fact that, according to a decision of this court, confirmed by the Supreme Court, that whatever irregularities there may be in the proceedings, they cannot be taken cognizance of under the writ of habeas corpus.

The object of the great writ of habeas corpus is stated by an eminent text-writer, as follows:

“Its object is to free.from illegal restraint, not to punish the respondent, or to afford the party redress for his illegal detention. The allowance of the writ is not a mere ministerial act, but a judicial one; and it may issue in civil as well as criminal cases; but probable cause must be shown for the issue of the writ. This writ is a remedy for every illegal imprisonment. It is prosecuted by ordinary proceedings, and the determination of the court or judge upon the facts has the effect of a verdict of a jury. It was not framed to retry issues of fact, or to review the proceedings of a legal trial. It cannot be used, as a substitute for an appeal, or for a writ of error of certiorari. Errors and irregularities in procedure not going to the question of jurisdiction are not reviewable on habeas corpus.” (Church on Habeas Corpus, sec. 87.)

This has been approved by many of the highest courts of last resort in the country and is unquestionably sound doctrine.

The accused person is entitled to the full benefit of section 148 of the Code of Criminal Procedure, which reads as follows:

“If the court directs an information to be filed, the defendant, if already in custody, must so remain, unless he is admitted to bail, or, if already admitted to bail, or money is answerable for the appearance of the defendant to answer a new information and unless a new information is filed within fifteen days, the court must order the defendant discharged, unless by special reason the court extends the time of filing the information.”

But this section does not mean that if for any reason whatever it should transpire that after the lapse of fifteen days after the court has directed an information to be filed a new information is not presented, the court must at once, without heeding any objection, order his discharge from .prison. i Some discretion is left to the trial judges, and if it is not exercised within the time indicatéd in this statute it can be exercised as soon thereafter as the matter is called to the attention of the,court, or the dispatch of business will permit. The statute does ■ not say that the court must extend the time before the expiration of the fifteen days. Such statutes as this were never intended to be so strictly construed. Of course such discretion must never be abused by the court, but used in the interest of justice and in mercy of the accused. The rights both of the People and the prisoner must be well guarded. We believe that such has been the course of the district judge in the case pending before us on appeal. It was unnecessary to apply for a writ of habeas corpios in this case to secure liberation from imprisonment, if the applicant was entitled to be liberated— all that was necessary for him to do under the circumstances was to make a motion before, the court in which he had been accused, and to cite the section under which he claimed that action should be taken. When so plain a remedy is within the reach of the prisoner it is a misuse of th'e writ to apply to one of the judges of the court for a writ of habeas corpus, asking for his release from imprisoment.

It is said in section 483 of the Code of Criminal Procedure that the prisoner may be discharged in any of the following cases, among others the second, reading thus:

“ When the imprisonment was at' first lawful, yet by some act, omission, or event which has taken place afterwards, the party has become entitled to a discharge.”

This statute does not make it the imperative duty of the court or judge to discharge the prisoner, but by using the word “may,” leaves it to a sound judicial discretion, which of course should always be exercised with a view to the protection of society and the preservation' of individual liberty.

If, to comply literally with section 148 of the Code of Criminal Procedure, the judge felt bound to enlarge the prisoner, it would be his duty as a magistrate at once to issue a warrant for his re-arrest, and have him again imprisoned before leaving his presence. Then why should he not be remanded at once without any judicial legerdemain. Surely the straightforward method is the best.

It is not every slight defect in procedure or neglect of an officer, whether arising from a press of business or other cause, that will authorize the issuance of the writ of habeas corpus, or justify a judge in liberating a prisoner. If the applicant is clearly guilty of an offense, if there is good reason to believe that he is so, and should be detained for trial, it is the duty of the court, or judge sitting on habeas ■corpus proceedings, to remand him to custody. He should not be permitted to abuse the rights secured by this great remedy and make it an instrument of defeating justice, rather- than a protection for innocence. The Supreme Court of the United States took this view of the matter in a celebrated habeas corpios case, and uses language like the following:

“ A writ of habeas corpus is not like an action to recover damages for an unlawful arrest or commitment, but its object is to ascertain whether the prisoner can lawfully be detained in custody; and if sufficient ground for his detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment.” Citing Ex parte Bollman & Swartout, 4 Cranch, 75, 114, 125; Coleman v. Tennessee, 97 U. S. 509, 519; United States v. McBratney, 104 U. S. 621, 624; Kelley v. Thomas, 15 Gray 192; The King v. Marks, 3 East 157; Shuttleworth’s Case, 9 Q. B. 651. (See Nishimura Ekiu v. United States, 142 U. S. 651.)

Then certainly the'prisoner Torres was properly held for trial on the charge of embezzlement preferred against him by the district attorney.

Then the action of the district judge in refusing to enlarge the prisoner, in accordance with this application, was in strict accordance with the law applicable to this case, and his action must be affirmed. The judgment of the courf will be entered accordingly.

Affirmed.

Chief Justice Quiñones, and Justices Hernández and Sulz-bacher concurred.

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