
    People of Porto Rico, Plaintiff and Appellee, v. Luis Cartagena, Defendant and Appellant.
    No. 3147.
    Argued May 10, 1927.
    Decided July 26, 1927.
    
      
      Fulgencio Pinero for the appellant. José E. Figueras for the ap-pellee.
   Mr. Chief Justice Del Toro

delivered the opinion of the court.

On June 24, 1926, Luis Cartagena was charged in the District Court of Gfuayama with carrying a pistol, an arm with which bodily injury could be caused. He pleaded not guilty and after a trial was sentenced to seventy-five days in jail, without costs.

He appealed from that judgment and has assigned in his brief only that in his opinion the court erred in weighing the evidence.

At the trial the witnesses for the prosecution were Silverio Oabán, Domingo Cofres! and Felipe Suárez, and those for the defense were Manuel Rivera, Eosa Pifia, Luciano Stella, Manuel H. Haddock and the defendant.

Caban testified that on the day mentioned in the information he saw the defendant in Patillas conversing with some teachers; that he approached him and asked him when he was going to pay the money that he owed him, to which he answered “that he had nothing to do with me because the matter was in the hands of his attorney to whom I should apply.” Then I said to him that he should see that I needed that money which for three months he had been owing me and he said “well, I have nothing to do with you,” and then drew a pistol. When asked by the judge what he did with that pistol after drawing it he answered: “Well, he made a threatening gesture and fell back and after taking two or three steps backward he turned around and ran.”

Witness Cofres! testified that he was with Cabán; that he drew apart to attend a little girl and heard voices saying “do not kill him, do not' lull him, and went there and saw Luis Cartagena with a pistol in his hand.” When asked what he did with the pistol he answered: “He drew it and as the other was somewhat excited he said Mo not move or I will shoot. ’ ’ ’ When asked, ‘ Then what did he do; did he stay there?” he answered: “No, sir, he ran away.”

The last witness, policeman Suárez, said that he knew nothing about the matter.

Rivera, the first witness for the defense, testified that he and the defendant were teachers in Patillas; that on the 26th of June, 1926, he went with the defendant to the house of teacher Ramira Torres in order to give her some reports and while they were on the balcony Cabán came up in a temper and said to Cartagena: “Are you or are you not going to pay me. Cartagena answered that the matter was in the hands of the court and then Cabán,' who knew that Cartagena was not strong, attacked him, whereupon Carta-gena stepped two paces backwards and ran.” He denied that Cartagena drew any weapon. He said that Cartagena had his hands occupied with the note-books that he was going to deliver to teacher Ramira Torres.

Rosa Pina said: “I saw Luis Cartagena with Manuel Rivera, holding some note-books there in front of the house of Rosa Torres and Cabán came and asked him whether he was going to pay him or what was he going to do, and then Luis Cartagena said to him ‘be patient, in the court,’ and then I saw this gentleman going for Luis Cartagena, and I saw Luis Cartagena running with some note-books in his hand.” Subjected to a long examination, she not only maintained her statements but went further and referred to the insulting language of Cabán spoken to the defendant.

Luciano Stella testified that she had seen witness for the prosecution Cofres! in another part of the town on the same day and about the same hour and heard bim ask a man named Rivera what was-the matter with his friend Cabán.

Manuel M. Haddock, district chief of police, testified that the' conduct of the defendant was good and that it was only on account of this occurrence that he had to do with him officially.

Finally the defendant took the witness-stand and testified that late in the afternoon of June 24 fie went with teacfier Rivera to take some reports to teacfier Ramira Torres and ÍCwfi.ile I was giving her the reports I heard Caban calling me by name from the street in a loud voice denoting anger. I then went to him and fie said ‘are you or are you not going to pay me’ and I answered: ‘Well, fie patient’ and fie said ‘no, what I want to know is whether or not you are going to pay me,’ and as my profession as principal teacher will not- allow me to stoop to a personal encounter in public for a trifle, for a small debt which I owed him and which I had acknowledged .... I had paid him $300 of $370, and I said io him: ‘let me have an extension until next year or accept partial payments, ’ and it could not fie and he sued me. Then Cabán went for me with a threatening gesture, and as I had been informed that he had not a good reputation; that he had been in the penitentiary, I thought at first that he was going to harm me, I did not want to have a quarrel with him and drew back.two paces, and then he went on telling' me ‘you are a scoundrel and you are going to pay me one way or the other,’ and I fled to my home.”

He denied having drawn a pistol or that he ever used one.

This is a synopsis of all the evidence introduced. We have read it carefully and pondered over it and in our opinion, notwithstanding the great weight that should be attached to the judgment of the trial court on the credibility of the witnesses, especially in a case in which the evidence is contradictory, we are forced to the conclusion that the court erred as alleged. The weapon that the defendant is alleged to have carried was not seized. We have held that it is not necessary to produce in evidence the weapon carried by a person, not even that it be taken from him, but when it is neither seized nor presented the evidence of his having carried it must be clear and convincing.

The complainant and Cofresí were positive that the defendant drew the .pistol. They only saw it in the hands of the defendant. They had no opportunity to inspect it and ascertain that it was[ really a pistol. They did not say that the weapon had been fired. No other affirmative proof appears in the record. On the contrary, its existence was denied by teacher Rivera, Rosa Pina and the defendant.

The testimony of the complainant is improbable. It is incomprehensible that the defendant should run away if he had the revolver. He was strong. In addition to his strength he had the weapon. We can not conceive of such a case. The same considerations apply to the testimony of Cofresí. Besides, its perusal gives the impression that he talked too much. He testified that he had heard the shouts of “do not kill him, do not kill him,” uttered by nobody knows whom, and that upon arriving on the scene he saw Cartagena holding the pistol. And later he says, referring to the weapon, “he drew it.”

The evidence for the defense is, on the contrary, logical and complete. The fleeing of the defendant at top speed in view of the violent attitude of Caban whose criminal record he knew is understandable. He feared an assault and was not a quarrelsome man. He was rather short of courage and valor.

The judgment appealed from must be reversed and the defendant discharged.

•Justices Wolf and Aldrey dissented. •  