
    The People v. Battistini.
    Appeal from the District Court of Ponce.
    No. 1.
    Decided February 10, 1904.
    -Criminal Law — Bill of Exceptions — Statement of Facts — Appellate Court. —Where no bill of exceptions or statement of facts appears to have been incorporated in the record, the Supreme Court will not consider the facts upon which the guilt of the accused is predicated.
    Substitute Judge — Appointment of. — Where the record fails to show by whom and in what manner the appointment of a substitute judge who presided at the trial was made, it will be presumed that sueh appointment was regularly made by competent authority and in accordance with law.
    Judge de Facto — Validity of Proceedings — Collateral Attack. — In the absence of a showing to the effect that the appointment of a substitute judge who intervened in the trial of a cause was illegally made, such judge, upon well-settled principles of law, will be deemed to be a de facto judge, and in case of the failure of any of the parties to question his participation in the trial, Ms acts will he considered valid and cannot be successfully attacked in a collateral proceeding.
    Id. — Witness Fob the Prosecution — Eicht of Dependant to be Confronted-By. — The fact that the prosecution fails to -produce a witness in its own behalf, where said witness had not been subpoenaed by the defendant, who-claimed that he was thus deprived of a right under the eighth amendment to-the Constitution of the United States in not being confronted by the witnesses against him, affords no ground of complaint on the part of the defendant, inasmuch as the prosecution is under no obligation to the defense to produce a witness whose testimony may not favor the presentation of its case.
    Id. — -Private Document — Falsity.—Article 1193 of the Civil Code is not applicable to a case involving the falsity or simulation of a private document.
    Id. — False Pretenses — Elements op oppense. — To constitute the offense of obtaining money under false pretenses four things must concur, viz., that the agent acts knowingly and designedly, that he avails himself of false pretenses, that such false pretenses are fraudulent, and that he defrauds another person of money or property.
    Id. — Information—Averments.—On an information charging the offense of obtaining property under false pretenses, it is not necessary to allege an intent to defraud, since the intent and guilty knowledge are to be inferred from the circumstances of the crime and the sound mind and discretion ef' the accused, and the malicious and criminal intent is presumed from the manner and deliberation with which an unlawful act is intended or committed with the object of injuring another. The other three elements involved in the crime, as defined and made punishable by section 470 of the Penal Code, must, however, be alleged and proven to sustain a valid conviction.
    Id. — False and Fraudulent Representations. — False representations may not be fraudulent, and before a conviction will be upheld under an information charging the crime, of obtaining property under false pretenses, it must be affirmatively shown that fraud or deceit was employed to induce another person to part with his money or other property.
    The facts axe stated in the opinion.
    
      Mr. Alvares Nava, for appellant.
    
      Mr. del Toro, Fiscal, for respondent.
   Mr. Justice Hernández

delivered the following opinion of the conrt:

The case submitted to the decision of this Supreme Court is an appeal taken by Pedro Simón Battistini from the judgment of the District Conrt of Ponce which sentenced him as convicted of the crime of fraudulent representation, to one year of imprisonment at hard labor to be served ont in the penitentiary of this Island, and to the payment of the costs incurred at the trial, and restitution to the lawful owner of the jewelry of which he was defrauded. The Fiscal of the District of Ponce, under date of September 3, 1902, on behalf of the People of Porto Eico, filed an information against Pedro Simón Battistini, charging him with the crime of fraudulent representation, comprised under section 470 of the Penal Code, which he describes in the following terms:

“Pedro Simón Battistini received from the minor Rafael Torrue-11a, as security for a loan of one hundred and eighty dollars, acknowledged in a note of hand signed by Torruella to the order of Manuel Coll, and endorsed by the latter to Battistini, a gold ring with a sapphire and two diamonds, two diamond screw ear-rings and a scarf-pin set in diamonds, worth over fifty dollars, Battistini having required Torruella to execute a certificate of sale of said jewelry in favor of Coll, who afterwards executed another certificate of sale of the same property in favor of Battistini; and the latter, taking advantage of the aforesaid fraudulent contract by which a contract of pledge was made to appear as a contract of sale, refused to restore the jewelry to Torruella’s relatives, despite an offer to pay him the sum of one hundred and eighty dollars secured by them. ’ ’

Upon the oral hearing, which took place at sessions held on the 26th of November and the 4th and 5th of December of aforesaid year, the minutes whereof were duly taken, no protest having been presented except one entered at the second of said sessions, because the court had ruled out, as unnecessary, the testimony of Mrs. Isabel Cortada, the aforesaid court, of which Nemesio E. Canales formed part as substitute judge — by whom and how appointed, does not appear— delivered judgment by a majority of the court on the 6th of December aforesaid, wherein, considering the facts which form the subject-matter of the information as having been proven, and appreciating said facts as constituting the crime of fraudulent representation, condemned Battistini to the penalty hereinbefore mentioned.

Prom this judgment counsel for the defendant took an appeal, alleging the following grounds:

1. In delivering the judgment of conviction no account was had of the provision contained in section 252 of the Code of Criminal Procedure, inasmuch as, together with other evidence, a document having' been presented signed by Eafael Torruella, whereby the latter sells to Manuel Coll the jewelry which the defendant Battistini is charged1 with having defrauded, it is taken for granted that said signature of Torrue-lla was obtained through deceit, Battistini being convicted on the sole testimony of Manuel Coll, unaccompanied by any corroborating circumstances, while no signature or handwriting of the defendant appears in this alleged fraud.

2. The absolute rule established in section 253 of aforesaid Code has also been disregarded in the judgment, for although Manuel Coll has confessed to a participation in the offense, which, at least, gives him the character of an accomplice in the commission thereof, Battistini is convicted on the strength of no other evidence, since the testimony of the witnesses for the prosecution is not independent of that of the accomplice, their only knowledge as to the facts having been acquired through Coll.

3. The principle contained in section 239 of the Code of Criminal Procedure has likewise been disregarded^ for although Manuel Coll confessed before the justice of the peace that he was a principal or, at least, an accomplice of the crime prosecuted, he has been excluded from the trial in order that he might serve as a witness for the People, before he was arraigned, as he should have been, and thus, on the strength of the provision contained in section 241 of the said Code, the obviously guilty party goes unpunished, while the doubtful or really innocent one is convicted.

4. Violation of Article VIII of the amendments to the Constitution of the United States, inasmuch as the witness for the prosecution, Isabel Cortada, was not summoned to testify at the trial, thereby making it impossible for the defendant, notwithstanding Ms protest, to be confronted by ber, nor was be confronted with any witness whatever.

5. Disregard of the provision of section 1193 of the Civil Code, which is, in the present case, closely related to the Penal Code, in ignoring the valne of the documents of sale of the jewelry, as evidence, between the parties to the contract, namely, between Coll and Battistini, and Coll and Torruella..

6. Having dispensed with the special testimony of Eafael Torruella, who is the party prejudiced by the punishable act, if the same was really committed, since the owner of the jewelry, according to his admission before the justice of the peace, was his mother, Isabel Cortada, who made the accusation.

The appeal having been admitted, the proper certified copies of the minutes of the trial were sent to this Supreme Court, which minutes do not contain any specification or statement of the testimony of the witnesses, nor as to Ea-fael Torruellas’ having been proposed as such for examination, nor as to. the refusal of any process for obtaining evidence, save the testimony of Isabel Cortada, and moreover it does not appear that any bill of exceptions was presented. The appeal having been conducted under the proper procedure, counsel for the appellant, upon returning the record, besides reproducing the grounds set forth in the appeal, urged the following in support of his prayer that the judgment be reversed:

1. That from the record it does not appear, nor is it alleged, that Battistini acted with the intent of defrauding anybody.

2. That no allegation or evidence exists in the case showing that when the transaction or contract was entered into between Torruella and Battistini, the latter knew that the former was under legal age.

3. That from the information and evidence it does not appear that Battistini had made use of fraudulent representations or pretenses or of frandnlent means to obtain from Torruella the jewelry in question, which circumstances are necessary in the present case, in order that the act may constitute a crime.

4. That inasmuch as section 470 of the Penal Code specifically states that a person commits a crime who knowingly and designedly, by false or fraudulent representation or pretenses, defrauds any other person of money or property, Bat-tistini could not have been convicted, for the reason that such circumstances were not proven. The Fiscal contested the appeal, because, in his opinion, the judgment delivered was just, the facts declared to have been proven containing all the requisites determined by the law to justify their being punished as a crime of fraudulent representation, wherefore he prayed that the appeal be dismissed, with costs against the appellant.

A day having been set for the hearing, .the same was continued for the reason that Battistini’s counsel moved that the information which gave rise to the prosecution be declared null and void upon the ground that no act was specified therein constituting a crime under the laws of Porto Rico, he alleging in support of said motion:

1. That the information does not state that Battistini, in executing the acts of which he is accused, did so with the intent to defraud Rafael Torruella, or any other person.

2. That neither does the information state that at the time of the transaction between Battistini and Torruella, the former knew that the latter was a minor.

3. That it is not alleged in the information that Battis-tini had made any false or fraudulent representations to Tor-ruella for the purpose of cheating him of the value of any property.

4. That while the information was presented in accordance with section 470 of the Penal Code, the allegations contained therein show that the acts upon which it is based do not constitute a crime under aforesaid legal text.

5. That the acts set forth in the information, if true, would give Torruella a right to institute a civil suit for the purpose of annulling the promissory note or any other document signed by him and recovering possession of the jewelry.

This motion, which was opposed by the prosecution, was overruled by the court, counsel for Battistini being left at liberty to allege whatever he might deem pertinent in support of his rights at the hearing, which was had in the presence of the Fiscal and of counsel for the defendant.

In addition to the grounds upon which the plea of the appellant is based, there is another ground which was brought under discussion by the court, namely, whether the intervention of a substitute judge, at the present trial, did not vitiate the proceedings and judgment rendered. As the record does not state by whom and in what manner the appointment of said substitute judge was made, it is to be presumed that he was appointed by competent authority and in accordance with law; but even were it not so, there is no doubt that if the substitute judge in question was not one de jure, he was one de facto, uncontradicted by the parties, and it is a doctrine laid down by the various supreme courts of different states of the Union,, and by even the Supreme Court of the United States itself, that the acts of a de facto judge are valid and cannot be substantially attacked in collateral proceedings. This doctrine was set forth and strengthened with copious decisions by Mr. Justice MacLeary of this Supreme Court in the criminal case of The People v. Hobart S. Bird, for contumely and calumny, although no application was then given to it, because the case was one to be decided in accordance with the old Penal Code and Law of Criminal Procedure, and. consequently, in conformity with, the jurisprudence established by the Supreme Court.of Spain, which is contrary to American jurisprudence.

The proceedings instituted against Battistini cannot therefore be attacked on the ground of nullity. Entering now upon an examination of the grounds of the appeal, as set forth in the writing interposing the same before the District Court of Ponce, it may be forthwith declared that these grounds lack a basis entitling them to any consideration from a legal standpoint. Section 252 of the Code of Criminal Procedure cannot have been violated in the judgment appealed from, for it. is not stated therein that the signature of Tor-ruella, in the instrument of sale of the jewelry to Manuel Coll, was obtained by false pretenses; and, moreover, as the specification or statement of the evidence taken at the trial is not known, for it does not appear in the minutes thereof, nor has any bill of exceptions been filed, this Supreme Court is not in a position to judge whether Battistini had been convicted of the acts whereof he was accused on the sole testimony of Manuel Coll, unsupported by any other evidence. Nor is there any warrant for asserting that Battistini’s conviction was due exclusively to the testimony of Manuel Coll, the purport whereof is unknown, as also whether or not Coil’s testimony had otherwise been corroborated by the other evidence taken, for a bill of exceptions showing these particulars is lacking, and the minutes of the trial, by reason of their deficiency, cannot supply the absence of said bill.

Sections 239 and 240 of the Code of Criminal Procedure, which were also alleged to have been violated, are not pertinent to the case at bar, for Manuel Coll, whose testimony is. not found in the record, was not excluded that he might serve as a witness for the People, it appearing, on the contrary, that there was no occasion for such an .exclusion, inasmuch as he had not been included in the same charge with Battis-tini. The eighth amendment to the Constitution of the United States, which, is also alleged to have been violated, was not violated so far as it is applicable to this Island or congruent to section 11 of the Code of Criminal Procedure, inasmuch as all the witnesses who testified at the trial gave their testimony in the presence of the defendant, and no confrontation with them has been denied him, Battistini having enjoyed all the rights allowed him by aforesaid section. The fact that the trial court had dispensed with the testimony of the witness Isabel Cortada, which had been called for by the defendant, did not leave him without defense, for said testimony, as declared by the appellant, was not for the defense, hut for the prosecution, and such being the case, the production of this witness devolved upon the People of Porto Rico, and only in the event of her having been called, would the defendant have had a right to cross-examine said witness and he confronted with her. The absence of the testimony of Rafael Torruella cannot be invoked by the appellant, for it does not appear that he had offered as evidence the testimony of said witness. And as to section 1193 of the Civil Code, the same is not applicable to the present case, in which the question at issue was whether or not the instruments of sale of the jewelry between Coll and Battistini and Coll and Torruella, were simulated, and the trial court could, upon weighing the combined merits of all the evidence taken, conclude that said instruments were simulated.

With respect to the other grounds of appeal which by way •of addition to those above stated were alleged before this Supreme Court, they bear a close relation to those which served as a basis for the motion to quash the information; and all of them may be summarized in one, namely, that the facts set forth in the information, and declared to have been proven in the judgment, do not constitute the crime of fraudulent representation, as defined and punished under section 470 of the Penal Code. The text of said section reads:

“Every person who knowingly and designedly, by false or fraudulent representation or pretenses, defrauds any other person of money or property .... is punishable in the same manner and to the same extent as for larceny of the money so obtained.”

As we see, for the existence of the crime in question, four elements are indispensable, which make it complete; 1. The agent must act knowingly and designedly; 2. He must malee use of false representations; 3. Such false representation must he fraudulent; 4. Another person must he defrauded, of money or property.

That the defendant, Pedro Simón Battistini, acted knowingly and designedly, when committing the acts of which he is-, accused, it was not necessary to state in the information, for' according to section 12 of the Penal Code, the intent or intention is manifested by the circumstances connected with the' offense and the sound mind and discretion of the accused,, all persons being reputed of sound mind who are neither idiots, nor lunatics, nor affected with insanity; and a malicious and guilty intention is presumed from the manner and deliberation with which an unlawful act is intended or committed for the purpose of injuring another. By a mere per-rusal of the information presented against Battistini, it- is made evident that in executing the acts wherewith he is charged, he had done so knowingly and designedly. Nor can there be any doubt that the instrument of sale of the jewelry made in favor of Coll, who afterwards executed another in favor of Battistini, implied a simulated contract of sale, being in reality a contract of pledge, for so it was considered by the trial court, and in the minutes of the trial no evidence has been set forth to show the error of this conclusion, nor was any bill of exceptions filed in this court, referring to such error. There was, then, a false representation in the instrument of sale of the jewelry, made by Torruella in favor of Coll. However, it does not appear that this false representation was also fraudulent, in other words, that the simulated document of sale of the jewelry had been obtained from Tor-mella by means of fraud or deceit, for this consists in tbe ingenious sagacity employed by tbe actor, for tbe purpose of enticing tbe person be intends to prejudice, obscuring bis intelligence or perturbing bis volition, by tbe crafty suggestions of wbicb he is tbe object; and in tbe information, the facts whereof are held to have been proven by tbe trial court, no deceit or craftiness is mentioned wbicb could have so influenced tbe mind of Torruella as to make him sign tbe certificate of sale of the jewelry. He signed tbe document, but it is not intimated that in so doing- be was induced by deceit or that be was unaware of tbe act be was accomplishing. Nor dues it appear that Battistini bad defrauded Torruella, in refusing to return tbe jewels, although Torruella’s relatives were willing to pay him tbe one hundred and eighty dollars secured by them, for if tbe certificate of sale of tbe jewels was given as security for said payment, Torruella bad no right to demand them, except by returning tbe money loaned according to section 1772 of tbe Civil Code; and if Battistini refused to receive tbe money, Torruella was obliged to deposit tbe same in tbe manner prescribed by said Code, in order to be released from tbe obligation be bad incurred upon signing the note of band, and so place himself in a legal condition to demand, either criminally or civilly, the restitution of bis jewels from Battistini. Therefore, tbe acts wherewith Pedro Simón Battistini is charged do not constitute tbe crime of fraudulent, representation, as defined and punished under section 470 of tbe Penal Code, inasmuch as they do not contain all tbe elements necessary for tbe consummation of such offense. Accordingly, tbe judgment appealed from should be reversed, and Battistini acquitted thereof, with costs to be defrayed by tbe Government, and tbe security furnished by him, cancelled .

z,6cj(W accordiagly.

Chief Justice Quiñones and Justices Sulzbacber and Mae-Leary concurred.

Mr. Justice Pigueras did not sit at tbe bearing of this case.

CoircuRRiítg Opinion op

Mr. Justice Sulzbacher.

On the 16th of December, 1902, Pedro Simón Battistini was convicted in the District Court of Ponce, of the crime of false and fraudulent representation, and sentenced to one year of imprisonment in the penitentiary, at hard labor. It appears from the record that the case was tried by a court composed of Isidoro Soto Nussa, Carlos Franco Soto and Nemesio R. Canales, substitute judge.

This court has decided, on several occasions, that when some manifest error appears on the record, which produces the nullity of the judgment, it should, on its own motion, take it into consideration. It seems to me that in the present ease an error of this nature has been committed, because it is to be inferred from the record that a substitute judge formed part of the trial court. In the case of The People of Porto Rico v. Hobart S. Bird, for contumely and calumny (libel), decided by this court on the 15th of June of the present year (sic), I stated my opinion upon the subject, in the following terms:

‘‘ The district court had its origin in section 10 of General Orders No. 118, which reads:
“Bach district court shall he composed of three judges, one of whom shall he presiding judge, and who shall jointly constitute a bench for civil and criminal business . . .

The authority to appoint supplementary judges is derived from section 94 of the same order, which reads:

“The court shall nominate one or more supplementary judges to substitute the incumbent in case of vacancy, absence or sickness. Each attorney shall also nominate his substitute for the same purpose. ’ ’

By section 33 of the act of' Congress, entitled “An act temporarily to provide revenues for the People of Porto Rico, and for other purposes,” approved April 12, 1900, the district courts were continued. Said section reads as follows:

“That the judicial power shall he vested in the courts and tribunals of Porto Rico as already established and now in operation . . . all of which courts and tribunals are hereby continued .... Provided, however, that .... the judges of the district courts shall be appointed by the governor, by and with the advice and consent of the executive council.”

It appears by said act of Congress, therefore, that in order to be a judge of the district courts of Porto Rico, the existence of two positive and absolute conditions are especially required, namely: That said judges be appointed by the Governor, by and with the advice and consent of the Executive Council, which implicitly, if not expressly, means that only such persons as possess these qualifications, and no others, can be judges of the district courts of Porto.Rico, and vested with the jurisdiction of said tribunal. Whatever may have been the law with respect to the appointment of substitute judges, in force prior to the approval of aforesaid act of Congress of April 12, 1900, it was implicitly repealed by the latter. I am of the opinion, therefore, that this being a question of jurisdiction, it should be considered with preference to any other, and that the judgment of the District Court of Ponce should be reversed.  