
    Ex Parte Mauleón.
    Application for a writ of Habeas Corpus.
    No. 19.
    Decided October 29, 1903. 
    
    Effects of Criminal Laws. — It is a generol principle of law that a new criminal statute with a general repealing clause, but without any reservation to the contrary, annuls abolishes and invalidates prior laws to the effect that crimes not contained in the new law could not be punished, and wrongdoers could not be brought to justice.
    Penal Core am Code of Criminal Procedure. — The new Penal Code and Code of Criminal Procedure are parts of the same system and closely related to each other. The former defines the crime and fixes the punishment; whilst the other outlines the manner, the course and the*proceedings to prosecute and enforce the latter.
    Saving Clause. — Section 558 of the Penal Code should be construed as a saving clause, and therefore the new Penal Code and Code of Criminal Procedure can not be applied to offenses committed prior to July 1, 1902.
    Codes of Procedure. — Although two Codes of Procedure cannot exist in one court at the same time, this is true were the two procedures applicable to the same cases; but not when the legislature has- 'expressly stated the cases to which either shall be applied.
    Woutnding. — Battery.—The crime of wounding (lesiones) is not designated in the new Penal Code, and it cannot properly be considered as having the same legal signification as the crime of battery.
    Habeas Corpus. — Appeal.—Writ of Error. — The writ of habeas corpus cannot be used to review errors and irregularities in proceedings, resulting in conviction and sentence, where the court had jurisdiction of the offence and of the person of the defendant, a writ of error or appeal being the proper remedy in such case.
    Jury Trial. — Right of Waiver. — Under Section 388 and 389 of the Revised Statutes of Porto Rico, the right of trial by jury is optional with a defendant, but in order to avail himself of such right, he must comply with certain conditions, otherwise the right is deemed to have been waived.
    The facts are stated in the opinion.
    
      Mr. Manuel F. Fossy, for petitioner.
    
      Mr. del Toro, Fiscal, for the People.
    
      
       The English and Spanish versions of this opinion both being signed copies, the discrepancies have been allowed to stand, and the language has not been changed.
    
   Mr. Justice Sulzbacher

delivered the following opinion of the court:

This is an application for a writ of habeas corpus by José Mauleón Castillo. In his petition he alleges, substantially, that on the 30th day of September, 1902, he was convicted in the District Court of San Juan, and sentenced to one year and one day of imprisonment in the penitentiary, and to pay an indemnity of nineteen dollars and suffer seven days more of imprisonment in case he should fail to pay the same. That he appealed to the Supreme Court, where on the 30th day of March, 1903, the judgment of the District Court was affirmed. He claims that said judgment of the District Court is illegal for the reason that on the 30th of September, 1902, the day of his- conviction, there_was in force in Porto Rico a new system of criminal procedure, which went into effect on the 1st dav of.Iu.lv. P9021~vihefein it'provided that all'criminal accusations should be made in the name of the “People of Porto Rico” sworn to by the Fiscal and read to the defendant in his presence, to enable him to make his plea. That this being a case of (crime) “delito grave” the accused had a right to a trial by jury in conformity with a law enacted on January 12, 1901. During the argument before this court, on the application for. the writ of habeas corpus it was contended that also the new Penal Code, which went into effect on July 1, 1902, was applicable and that Mauleón should have been punished for the offense of “battery” as provided by said new code and not for wounding (lesiones) under the former code.

It appears from all the records in this case that on said 30th day of September 1902, the said Mauleón was tried for the offense of wounding (lesiones) committed on the 16th of September, 1901. In the appeal before this court none of the points contained in the application for a writ of habeas corpus, were raised by said Mauleón. The questions now before this Court therefore are: whether or not the new Penal Code and the new Code of Criminal Procedure should be applied to an offense committed prior to the 1st day of July 1902; and whether a defendant, since the 12th day of January 1901, was entitled to a jury trial.

• It is a general principle of law that a new criminal statute with a general repealing clause, but without any reservation, to the contrary, annuls, abolishes and invalidates prior laws to the effect that crimes not contained in the new law could not be punished, and wrongdoers could „not be brought to justice. From these experiences, the legislator, in recent years, has considered it wise and prudent to prevent the miscarriage of justice by enacting what is called a “saving clause”.

The new code of Criminal Procedure says, in section 534:

“ That the Penal Procedure, Royal decrees, orders and military orders in force in Porto Rico in so far as the same relate or refer to criminal procedure, and áre inconsistent or in conflict herewith, and all other laws, orders, decrees and acts inconsistent with this Act, are hereby repealed”..
“This Act shall take effect at 12 o’clock noon on the first day of July, nineteen hundred and two”.

The Penal Code, in its section 560 reads as follows :

“Section 560. — The Penal Code, Royal Decrees, Orders and Military Orders in force in Porto Rico, in so far as the same relate or refer to crimes and are inconsistent or in conflict herewith, and all other laws, orders, decrees and acts inconsistent or in conflict with this Code, are hereby repealed”.
“ This Code shall take effect at 12 o’clock noon on the 1st day of July, nineteen hundred and two”.

In this connection, however, we have to consider section 558 which is as follows:

“Section 558.- — -No act or omission commenced after twelve o’clock noon, of the day on which this code takes effect as a law, is criminal or punishable, except as prescribed or authorized by this Code”.
Any act' or omission commenced prior to the establishment of this Code, may be inquired of, prosecuted and punished in the same manner as if this Code had not been passed”.

These three sections must naturally be construed together.

There is no doubt that the new Penal Code and the new Code of Criminal Procedure are 'parts of the same system and closely related to each other. .As universally recognized, the former defines the crime and fixes the punishment; whilst the other outlines the manner the course and the proceedings to prosecute and enforce the latter. It is evident to this court that it was the intention of the legislature that section 558 should be considered as a saving clause, for it states in most positive and unequivocal terms that any act or omission comenced prior to the establishment of the code “shall be inquired of, prosecuted and punished in the same manner as if this code had never been, passed”. Hence, as to all crimes or offenses committed prior to the 1st day of July, 1902, the new Penal Code and the Procedure could not be applied but had to be considered as if they were not in existence at all.

It is contended that two codes of procedure cannot exist in one court at the- same time. This is true were the two procedures applicable to the same cases. Confusions would then naturally arise. Such conditions the legislator had in mind and he obviated them by declaring that the new code should only he applicable to crimes or offenses committed after July 1, 1902. There are instances in the United States where two procedures existed contemporaneously. For instance, in states or territories where the common law pleading was superseded by a Code practice the Legislature provided that all cases pending prior to the time when the code would go into effect should be prosecuted and carried on under the old system. There, like here, two procedures existed in the same court and yet one did not interfere with the other; they not being applicable to the same cases.

The applicant was charged and convicted of the crime of wounding (lesiones). There is no such offense designated in the new Penal Code as defined by the former Code. ■ But even if it were otherwise, the legislature, to avoid all doubt proclaimed its reservation bj^ enacting the said saving clause under which all offenses committed prior to July 1, 1902, should be “inquired of, prosecuted and punished” in accordance with the law and the procedure of the old penal system and irrespective of the new criminal legislation. The crime of wounding (lesiones) was committed in September, 1901, and the former system of criminal law was properly applied.-

But even granting that a defendant could avail himself of such provisions of a new criminal procedure which may-result to his benefit or advantage, and whereby he was deprived of a defense which fatally affected his rights and liberty, the applicant has absolutely failed to show how he has 'been injured or prejudiced by the old criminal procedure, and how the new law would have ameliorated his condition.

The highest courts in the United States have held that a writ of habeas corpus cannot be used to review errors and irregularities in proceedings resulting in conviction and sentence where the court has jurisdiction of the offense and of the person of the defendant. A writ of error or appeal alone are the proper remedies in such cases.

In Ex Parte Schaw, 7 Ohio State, 81, “70 American Decisions”, the court says: -

“The court had j urisdiction over the offense and its punishment. It had authority to pronounce sentence; and while in the legitimate exercise of its power committed a manifest error and mistake in the award of the number of years of punishment, the sentence was not void but erroneous”.
“The writ of error and habeas corpus each have their separate offices. There are ample remedies provided for the correction of irregularities and errors in proceedings which result in conviction and in sentences by writ of error. For errors and irregularities in such cases, the summary remedy by habeas corpus cannot be had; Ex Parte Kellogg, 6 Vt. 509; Matter of Prime, 1 Barb 340. But if the court has sentenced the relator for an offence over which, by law, it had no j urisdiction whatever, so that the proceedings and sentence were manifestly coram non judice, and void, the imprisonment following such void sentence would have been unlawful, and the relator entitled to be discharged on habeas corpus; Cropper v. Commonwealth, 2 Rob. (Va.) 842; Ex Parte Watkins, 3 Pet. 202”.

The Supreme Court of the United States In Re Frederick, 149, U. S. 76, says:

“ The office of a writ of habeas corpus and the cases in which it will generally be awarded was clearly stated by Mr. Justice Bradley speaking for the court in Ex Parte Siebold, 100 U. S. 371, 375, as follows: “The only ground on which this court, or any court without some special statute authorizing it, will give relief on habeas corpus to a prisoner under conviction and sentence of another court is the want of jurisdiction in such court over the person or the cause, or some other matter rendering its proceedings void. This distinction between an erroneous judgment and one that is illegal or void is well illustrated by the two cases oí Ex Parte Lange, 18 Wal. 163, and Ex Parte Parks 93 U. S. 18. In the former case we held that the judgment was void, and released the prisoner accordingly; in the latter we held that the judgment, whether erroneous or not, was not void because the court had jurisdiction of the cause, and we refused to interfere”. The reason of this rule lies in the fact that a habeas corpus proceeding is a collateral attack of a civil nature t^ impeach the validity of judgment or sentence of another court in a criminal proceeding, and it should, therefore, be limited to cases in which the judgment or sentence attacked is clearly void by reason of its having been rendered without jurisdiction, or by reason of the court’s having exceeded its jurisdiction in the premises”. Ex Parte Parkes: U. S. page 23.
“Butin the case before us, the District Court had plenary jurisdiction, both of the person, the place, the cause and everything about it. To review the decision of that court by means of the writ of habeas corpus would be to convert that writ into a mere writ of error, and to assume an appellate power which has never been conferred upon this court”.

la the case before this court the District Court had jurisdiction of the offense and oyer the defendant Mauleón, and if any error had been committed it should have been raised by his appeal to the Supreme Court. It is however, the opinion of this court that no error has been committed.

These expressions dispose of the case; nevertheless, we shall briefly consider the other objection raised in reference to the trial by jury and call attention to sections 388 and 389 of the Revised Statutes which read ;

“ If any person is charged with a crime by a prosecuting attorney or by a grand juiy, the punishment for which is capital punishment or two years or more confinement in any penal institution of the island, he may demand a trial by jury only in the district court having jurisdiction, and it shall be granted him under the following provisions”.
“Any person so charged shall, if he elect to have a jury announce such election to the court, through his counsel, or by his oto statement; such election shall be made at least two days before the day set for the trial for the crime with which he is charged; and if not made before that time, he shall be deemed to have waived the right to trial by jury, in which case he shall be tried byCthe court”.

It is obvious that under this statute the privilege of a trial by jury is left'entirely with the defendant and at his option and election. The defendant under said law is required to comply with certain requirements, otherwise he is deemed to have waived the right of trial by jury. It does not appear that the applicant for the writ of habeas corpus, at the trial in the district court, demanded a jury, and that a jury was denied; and he is therefore a priori not in a position to complain.

The application for the writ of habeas corpus is therefore denied, the writ dismissed and the prisoner to be remanded;

Concurrent opinion of

Mr. Justice MacLeary.

The applicant José Mauleón was convicted in the District Court of San Juan, on the 30th day of September, 1902, of wounding (lesiones) a. certain Genaro Cruz, in the city of San Juan, Porto Rico, on the 10th day of December, 1901. He was sentenced to one year and one day of imprisonment in the Penitentiary and accessory penalties. He appealed his case to this court, and the same was carefully considered, and on the 30th day of March, 1903, the judgment was in all things affirmed.

The grounds relied on in the appeal were briefly as follows: That the proof was not sufficiently certain to identify the appellant as one of the assailants of the wounded man, nor could it be definitely determined which one of the accused inflicted the blows, but that the affair occurred during a riot, and that the defendant should have been convicted, if at all, under another section of the same penal code, the former one, instead of under the section which the trial court applied to the facts of his case. He was ably defended1, in the Supreme Court by one of the leading members of the-Porto Rican Bar.

Neither the claim that he had been deprived of a jury nor-that the new code of procedure should have been followed in his trial was advanced in the course of this appeal. After-serving six months of his term in the penitentiary he made this application for habeas corpus, alleging as the grounds of it that he had been denied a jury trial, and that he was; tried under the old Code of Criminal Procedure which was not in force at the time his trial took place.

The first complaint is that he was denied a trial by jury.

This right did not depend on the new code of procedure, because the jury law was passed in January, 1901, months prior to the commission of the crime of which the prisoner was convicted. If he was entitled to a jury trial that right was secured to him by the first act ever passed by the Legislature of Porto Rico, and approved long before the assault on Genaro Cruz was committed. It is not necessary to claim the protection of the new code of criminal procedure to assert this right. This claim lies wholly beyond - the limits of the discussion on the codes. But the right to a jury trial under the law securing the right to all Porto Ricans is not absolute; it is subject to many restrictions. The accused must demand the jury in a certain prescribed manner, several days before the trial, and if he fails to demand it his right is deemed to he waived. The record of the case, which formerly came before this court on appeal, would show that a jury was never demanded. But it must affirmatively appear in this proceeding on habeas corpus that the applicant had been deprived of his right, after having taken all the measures necessary to secure it. Such a position is not assumed and could not be maintained. Then the claim of his right to a jury trial has no sufficient basis to entitle it to our -consideration.

In point of fact this trial, both in the District Court and in this Court on appeal, was conducted under the old Code of Criminal Procedure, which was in force in the days of the Spanish domination, and which had been continued in operation by the Foraker Act, both courts proceeding on the theory that neither-the new Penal Code nor the new Code of Criminal Procedure, passed and approved on the 1st of March, 1902, had any application to cases in which the acts occurred prior to the 1st of J uly of that year.

Hence it is that quite a novel question’is presented in. this case. It is contended that the new Code of Criminal Procedure should govern in the trial of this and all other criminal cases, whether the acts constituting the offenses were committed prior to 12 o’clock noon on the 1st day of July, 1902, or thereafter.

In other words, it is maintained in argument that the new Code of Criminal Procedure went into effect, according to its terms, at the date above mentioned, and thereafter was to be applied in all pending cases, no matter at what state of their progress they might have arrived, at that day and hour. Should the judges of the District Court have been sitting in the trial of a case, and the evidence have been in process of introduction, or the argument have been half finished, when twelve o’clolc struck at noon on the 1st day of July, immediately the whole procedure in the case should ■have changed like the views in a magic lantern, and although commenced according to the old code of procedure, the prosecution must have been finished in accordance with the new.

Let us examine this position, and see on what foundation it rests. In order to do so it is necessary briefly to review the history of this island since the American occupation. This we are fully authorized to do in this connection by the authorities on statutory construction.

We wish to ascertain the intention of the legislature in regard to the subject. Matters of public history and the surrounding circumstances at the time of the passage of the act under construction can always be considered by the court in arriving at the intention of the legislature, in enacting the laws. Church of H. T. v. United States, 143 U. S. 457. Siemans v. Sellers, 123 U. S. 276. United States v. U. P. R. R. Co., 91 U. S. 72. Aldrige v. Williams, 3 How 8.

Then let us glance a few years backward. When the invasion began, on the 25th of July, 1898, this people were found to be living under a code of laws which was the final outgrowth of ages, and was rooted deep “in a system of jurisprudence which had been handed down to them through a dozen generations, since the discovery of America, and to their ancestors in Spain for a thousand years previous thereto; a system derived from the Homan Law, which had been practiced in the Peninsula for centuries, and brought thence by the early settlers to this colony.

Of course with the advent of the Americans different ideas were introduced and the law of the United States, as it had grown up under Anglo-Saxon institutions, based on the common law of England was brought into immediate contact with the Spanish law as it existed in Porto Rico. But no immediate changes were made, further than those slight but necessary ones to be found in the Military Orders, until after the establishment of Civil Government in 1900 under the Foraker Act.

A Commission to revise and codify the laws of Porto Rico, presumably along American lines, was provided for in that Act of Congress, and was appointed, and labored more or less for a year in that direction. Their report was made to the Government at Washington, and laid before Congress, but no practical results ever ensued.

It is eminently proper to consider in this connection the state of statutory affairs existing in this island at the time these codes were proposed and passed by the Legislative Assembly as shedding light on the purpose, object and intention of the law-making power. Ross Ex Parte, 140 U. S. 453. Platt v. U. P. R. Co., 99 U. S. 48.

Then let us do so. When, in January, 1901, the first Legislative Assembly of Porto Rico had been convened, under the Foraker Law, a new codifying Commission was appointed, under a statute passed by that body, which was composed of some of the same members as the former, and they prepared and a year later submitted to the Legislative Assembly several codes, which they styled a political code, a civil code, a penal code, and a code of criminal procedure, all of which were adopted by the Legislature, and in due time became the law in Porto Rico. The Penal Code, and Code of Criminal Procedure were modeled on the California Criminal Code, in fact, in many sections and chapters appear to be an exact copy of that law. There was a difference, however* in this; for the sake of convenience, as is stated in the report of the Commission, the Penal Code of California, which embraces in one act three parts, treating respectively of crimes and punishments, of criminal procedure, and of prisons, was divided into two codes, called the Penal Code, and the Code of Criminal Procedure, according to the method to which the people were accustomed, having been formerly in use under the Spanish Government, in which the criminal laws had those designations.

Both of these codes, by their terms, took effect at twelve o’clock noon, on the 1st day of July, 1902. The Penal Code provides, in its second 'section that no part of it shall be retroactive unless expressly so declared, and it also has a section, among the final provisions, reading as follows :

“Section. 558. — No act or omission commenced after twelve o’clock noon, of the day on wbicli this code takes effect as a law is criminal or punishable, except as prescribed or authorized by this Code”.
“Any act or omission commenced prior to the establishment of this Code may be inquired ofj prosecuted and punished in the same manner as if this Code had not been passed”.

These provisions of the Penal Code do not appear in the Code of Criminal Procedure. Each of the Codes has a repealing clause providing in the one case: “That the Penal Procedure, Royal Decrees and Orders, and Military Orders in force in Porto Rico, in so far as the same relate or refer to criminal procedure, and are inconsistent or in conflict therewith, and all other laws, or orders, decrees or acts inconsistent with this code are hereby repealed”, and in the other, using similar language, changing the words “penal procedure” to “penal code” and “criminal procedure” to “crimes”.

No question has ever been raised as to the effect of either or both of these codes on acts or offenses committed after twelve o’clock noon on the 1st day of J uly, 1902. Everybody agrees that these laws were intended to apply to such acts, and that all offenses subsequent to that date must be tried and punished in accordance therewith. Nor is it contended that the-new Penal Code applies to acts or offenses done or committed prior to the noon hour on the 1st of July. All parties consider it to be entirely prospective in its operation.

The only question arising here is as to the application of the Code of Criminal Procedure to acts done and offenses committed prior to noon on the 1st day of July 1902, and which had not yet been punished at that date. It has been frequently held by the highest courts that great respect is due to official usage and to the contemporary construction put upon statutes by the executive officers charged with their execution, especially where this construction has been acquiesced in for a long period of time, and that these are among the legitimate aids to the courts in the interpretation of statutes. United States v. Healy, 160 U. S. 136; People v. Dayton, 55 N. Y. 377; Wetmore v. State, 55 Ala. 198; United States v. A. G. S. R. R. Co., 142 U. S. 615; United States v. Stone, 124 U. S. 236. And in a lesser degree, of course, the same might be held where the construction or the usage has prevailed for only a comparatively short time. 'It is then worthy of remark that the Attorney-General who at that time was the executive head of the J udical Department of this island, and as such a member of the Executive Council, and Chairman of the Judiciary Committee, in that branch of the Legislative Assembly, announced in an opinion issued . to the justices of the peace of the island on the third day of July 1902, the doctrine that both codes went into effect simultaneously, and that neither of them applied to acts or offenses done or committed prior to the time at which they took effect, and that neither was retroactive, and that both governed all cases which should arise on acts done and offenses committed after the hour at which they became effective.

In this opinion of the Attorney-General, the Bench and the Bar of the island at that time unanimously acquiesced and the question was never raised nor presented to this court until the trial of this case on habeas corpus. For fifteen months the court has. proceeded upon the theory and practice announced by Attorney-General Harlan, and acquiesced in by the Bench and the Bar, disposing of some of the most important cases which could possibly arise, involving the liberty, property and civil rights of the citizens of this island. If the view contended for and presented here by counsel for applicant is correct, then great injustice has been done in numerous cases, through a misconstruction of the law.

It is sometimes said that the doctrine of stare decisis has no application to criminal law; but this assumption cannot be supported by the current of authority in courts most highly esteemed for wisdom and learning. “The importance, in a general sense, of stable laws induces a conservative opposition to vacillation in even the methods of administering justice, and has made the rule of stare decisis universally applicable; in some cases even imperative, in others at least a precept”. Sutherland on Statutory Construction, section 314 citing In re Warfield, 22 Cal. 51; Boker v. Lorrilard, 4 N. Y. 261; Rogers v. Goodwin, 2 Mass. 477; and numerous other cases.

But let uá examine into the real foundation of this argument. In order to do so we must continue to inquire what construction shall be given to the laws which were passed by the Legislative Assembly, changing the criminal system in force under Spanish domination to the American system, which it sought to establish.

The cardinal canon of construction applicable to all written instruments, including statutes, is to ascertain and follow the intention of the parties by whom the instrument was made. If it is a contract that is sought to be construed, the judge endeavors to put himself in the place of the contracting parties, to inquire into their surroundings, to look at things through the same glasses, and to turn them over just as the contracting parties did when making the contract. In the same way it is permissible and necessary that the court should. endeavor to ascertain the circumstances surrounding the legislature, the history of the legislation, what was the old law, what was the defect or mischief sought to be corrected, and what was the remedy sought to be applied by the change. Soon Hing v. Crowley, 113 U. S. 703. King v. Gallun 109, U. S. 99. In other words, the intention of the legislature is to be sought for and when found, is to be complied with strictly, and given full force and effect. Wisconsin Cent. R. R. Co. v. Forsythe, 159 U. S. 46; United States v. Clarke, 8 Pet., 436. The intention of the law-makers is the essence of the law. Courts are bound to seek out the intention of the Legislature and when that is apparent are bound to respect and enforce it; and they cannot more disregard that intention in .the exposition of a penal statute than of any other. Territory v. Commissioners, 8 Mont. 409, 411; Foster v. Blount, 18 Ala. 687. If the intention is expressed in plain and unmistakable words, then no construction is necessary, but if it is obscure and the circumstances of the case render it difficult to determine, then it is necessary to apply the well known rules of construction which have been established for ages, and thus arrive at the real intention that the legislature had in making the law. The court can take judicial notice of the condition of the island and its history, the composition of its Legislative Assembly, the system of laws under which its people had been living, and with which they were familiar, their liberation from the Spanish Monarchy, and the establishment of free institutions, and all of the facts connected with the history, jurisprudence or legislation of Porto Rico up to the date on which the American system of criminal laws was introduced. Phillips v. Detroit, 111 U. S. 604; King v. Gallum, 109 U. S. 99; United States v. Perot, 98 U. S. 428; Conger v. Weaver, 6. Cal. 548; Sparrow v. Strong, 3 Wall 97; Turner v. Patton, 49 Ala. 406.

We^are not left without many judicial guides in thus ascertaining the legislative intent and fathoming the legislative mind. The Supreme Court of California very aptly observes while discussing a similar question:

“While it is not the business of the court to make, a statute, yet in the interpretation thereof it must look at the context and the result that would follow, in order to arrive at the intent. A literal construction will not always obtain, particularly when such construction leads to an absurdity ”. Stockton School District v. Wright, 134 Cal. 68. People v. Craycroft, 111 Cal. 544.

It is well settled that a statute may be construed even contrary to its literal meaning when a literal construction would result in an absurdity or inconsistency. Carpy v. Dowdell, 129 Cal. 245; Merced Bank v. Cassacia, 103 Cal. 645; Sutherland on Stat. Cons., section 323.

The reason and intention of The lawgiver will control the strict letter of the law in interpreting the same, when to adhere to the strict letter would lead to an injustice or absurdity. Carpy v. Dowdell, 129 Cal. 246.

It is presumed that the legislature intended to impart to* its enactments such a meaning as would render them operative and effective. Interpretation must be reasonable. People v. Curry, 130 Cal. 94. Black on Interpretation of Laws, 112.

The interpretation should lean strongly to avoid absurd' consequences, and even inconvenience; for the legislative-meaning is to be carried out, and it cannot be supposed to-be any of these. Great public interest will not needlessly be put in hazard by the interpretation. People v. Curry, 130 Cal. 94, 95. Bishop’s Criminal Law, 19.

In regard to one of the principal matters bearing on the' current history of the country, at the time these codes were passed, we must constantly bear in mind that the Legislative Assembly was composed in the lower house, of thirty four Porto Ricans and one American, and in the upper house of five Porto Ricans and six Americans. The object in view was beyond all doubt to change the entire Spanish system of criminal law then in force in the island into a complete American system, not only in so far as crimes and punishments were concerned, but in regard to the procedure by which such cases were to be instituted, conducted and tried. Under the Spanish régime, as we have said before, there were two codes in force, one called the Penal Code, the other the Code of Criminal Procedure, both working in harmony, one designating crimes and prescribing their punishment, and the other establishing rules for conducting criminal cases. In the Spanish codes the line between the substantive and the adjective law is not very strictly drawn, but they are to some extent mingled in each code.

In changing the criminal laws of the island to the American system, the Code Commission thought it wise, as has been'stated, to follow almost literally the Penal Code of California, which is substantially the same as that in force in Montana, Idaho, and other Western States; but for convenience, the Commission reported what in California is a single code, as two different codes, entitled the Penal Code and the Code of Criminal Procedure, respectively.. This is a matter of which this court can take judicial notice and is proper to be considered in discussing this subject. United States v. Perot 98 U. S. 428; United States v. Webster; Davies, 38; Fordick v. Perrysburg, 14 Ohio St. 472. These two codes were under discussion during the entire term of the Legislature, were referred to and considered by a'joint committee of the two Houses, of which the Attorney-General was Chairman, and were finally passed and approved on the 1st of March, 1902, to take effect four months thereafter. The original of these codes was of course in the English languagé. It was necessary to translate them into Spanish, and also obviously requisite that they should be studied and understood by the judges of the different.courts, many of whom are unacquainted with the English language, and by the members of the bar, the great majority of whom are natives of the island, before they could be put into operation. Four months time was scarcely sufficient for this preparation for so great a change.

Counsel for the applicant seeks to bonfine the view of the court to the exact language of the Code of Criminal Procedure without glancing for a moment at the Penal Code, insisting on a strict construction of the repealing clause of the statute and of the article putting the code in force on the 1st of July, 1902. This seems to us altogether too narrow a road in which to travel in order to arrive at the truth. Acts in pari materia should be construed together. C. M. & St. P. Ry Co. v. United States, 127 U. S. 406; Frost v. Wenie, 157 U. S. 46; Reich v. Smythe, 13 Wallace 162.

It is true that it is a general rule that penal statutes must be construed strictly, and in cases of doubt in favor of the accused, but they are not to be construed so strictly as to defeat the obvious intention of the legislature. American Fur Co. v. United States, 2 Pet. 367; United States v. Athens Amory, 35 Ga. 344; Walton v. State, 62 Ala. 197; Keller v. State, 11 Md. 525, and cases cited therein. Regard must be had by the courts to all parts of a statute, and to the concurrent legislation in pari materia; and the whole should, if possible, he made to harmonize; and if the sense be doubtful, such construction should be given, if it can be, as will not conflict with the general principles of law, which it may be assumed the legislature would not intend to disregard or change. Manuel v. Manuel, 13 Ohio State, 458, 465; it is specially well settled that a statute must be considered with reference to the whole system of which it forms a part. Smith v. People, 47 N. Y. 330; Whitcomb v. Rood, 20 Vt. 49; MacDougal v. Dougherty, 14 Ga. 674; Hays v. Richardson, 1 Gill & J. 366; Noble v. State, 1 Greene 325.

The Supreme Court of Montana, in discussing the construction to be given in a single statute cited and considered three laws in regard to the same subject although enacted years apart from each other and among other things says:

“If we take tlie whole law together, nobody can doubt what it means. All these statutes mean to amend section- 585 of the fifth division of the Revised Statutes; and that intent is clearly apparent if we will but exercise the ordinary faculties of perception with which all reasonable men are endowed.” Lane v. Missoula County, 6 Montana 482; Garruthers v. Madison County, 6 Montana 483.

It clearly appears to us to have been the intention of the Legislature, in view of previous history and all the facts and circumstances surrounding that body in January and February 1902, that the codes should go into effect gradually, and with the least possible friction, and it was accordingly, for that reason among others, provided in the criminal code that it should have no force as to acts committed prior to the date on which it took effect. No such express provision, it is true, is contained in the Code of Criminal Procedure. But the two codes are so very intimately connected, being, in the original statute from which they were taken, one legislative act, both referring to crimes and misdemeanors, and taken together plainly intended to establish a complete system of criminal law for the island, replacing a former complete system, that it seems impossible to separate one from the other. They are, as it were, great wheels in the same piece of machinery, with the cogs of the one working harmoniously in those of the other, and thus acomplishing the ends of justice.

The Spanish system is so different from the American, both in the crimes defined therein, and in the mode of trial and punishment prescribed that it seems almost impossible to apply the American procedure to the Spanish Penal Code. Many offenses under the Spanish law are considered to be personal injuries, and are prosecuted solely by the injured individual as a private prosecutor, while under the American law they are considered as crimes against the State, and are prosecuted by the public officers assigned to that duty.

There are other offenses, like sacrilege and disrespect to authorities, which are known to the Spanish law but are altogether unknown to the American, and others are so different in their definition and punishment that they must be considered as altogether unknown to the American Penal Code. Punishments which were inflicted under the Spanish system might be deemed unusual under- the American; such for instance as banishment from a certain town or city and the garrote as a means of inflicting the death penalty. The universal division of crimes into felonies and misdemeanors, established in the common law and adopted generally under the American Codes, is entirely unknown to the Spanish law.

It appears then absolutely necessary to enforce the Spanish Penal Code by the Spanish Code of Procedure, and the . American Penal Code by the American Code of Procedure; to undertake to administer the American Code of Procedure in the prosecution, trial and punishment of crimes or misdemeanors under the Spanish Penal Code would be somewhat like attempting to run a broad-gauge locomotive on a narrow-gauge railroad track; the result in both cases must certainly be disastrous.

These are some of the reasons, doubtless, which influenced the Attorney-General and the Courts of Porto Rico, with the universal acquiescence of the Bar, to regard the saving clause contained in the Penal Code as applicable alike to the Code of Criminal Procedure; and such construction is fully warranted by the decisions of the American courts.

We believe this rule of following the intention of .the legislature applies as well to the construction of several statutes considered together as it does to the interpretation of a single statute, considered alone. The object in either case is to ascertain what is the law; and if there are several statutes on the same subject contradictory in their provisions it must be the purpose of the court to find out which the legislature intended should prevail. Courts are not required, in the construction of statutes, to shut their eyes to what is perfectly evident to all other reasonable men. On the contrary they are required by every obligation of the judicial office, to the utmost extent of their faculties, to discern the law, and to carry the statutes into execution. Lane v. Missoula County, 6 Mont. 479; Thorpe v. Schooling, 7 Nev. 17; Carruthers v. Madison County, 6 Mont. 483.

In argument some pains were taken to elaborate the point that the Code of Criminal Procedure was not to be given an effect which would class it as an ex post facto law, though it was contended at the same time that a statute of procedure could change the method of trial and the courts having jurisdiction of offenses committed prior to its passage, without incurring the ban generally claimed to exist against laws having a retroactive effect. No one for a moment thinks of giving the new code of procedure a retroactive effect, unless such is the position assumed by those who contend that it applies to all acts or offenses, whether done or committed prior to the 1st day of July, 1902, or subsequently .thereto. Certainly the courts of this island in heretofore limiting its operation to acts, offenses and crimes committed after the date at which it became a law cannot be considered as having done so. Counsel for this applicant are seeking to make it retroactive in so far as necessary to apply to this case, which relates to a crime committed on the. 10th day of December, 1901. Then the case of King v. State, 107 U. S. 221, treating of ex post facto laws, has no application to this phase of the case under consideration.

It may be admitted in this discussion, for it is a principle well established by the decisions of the courts, that a statute of procedure may govern in the prosecution of crimes committed prior to its passage, whether it is more onerous upon the accused or not;- that concession does not change nor affect in the least degree the question at issue under the view taken of it by this court. If the new code of procedure is held to apply only to acts committed subsequent to the date at which it became effective all questions of retroactive or ex post facto laws become immaterial.

The prisoner cannot -claim that the punishment of his crime has been lightened or ameliorated by subsequent legislation for it is provided in the Penal Code clearly and unequivocally that “Any actor omission commenced prior to the establishment of this code (12 o’clock noon, 1st July 1902) may be inquired of, prosecuted and punished in the same manner as if this code had not been passed ”. (Section 558, last paragraph, of Penal Code.) The act of which the prisoner was convicted was done months before the meeting of the legislature which passed the code, and of course long-anterior to the date mentioned.

It is worthy of remark in this connection, that, if the new Penal Code could be, applied to the offense of which Mau-león was adjudged guilty, the facts proven make out a case of aggravated assault, defined and punished in article 237 thereof, by imprisonment in the penitentiary for not exceeding ten years, or in jail not exceeding two years, or by fine not exceeding five thousand dollars, or both. It thus appears that “the last state of that man would be worse than the first”. He certainly has no reason to claim that the punishment of his offense has been mitigated under the new criminal code. He has by his own acts made himself a felon under whichever code he may be judged.

Let us take up and examine, point by point, the written argument here presented by the distinguished counsel who insists that an erroneous interpretation has been given to the Code of Criminal Procedure, for the last.fifteen months in the scores of cases decided in accordance with these views.

After quoting the last paragraph of section 558 of the Penal Code as set out above, counsel proceeds to say: “Certainly, there can be no controversy as to the intention of the Legislature, when it enacted the above paragraph into law”. Possibly not, and if not, the Assembly must be held to mean just what was said and nothing else.

' But let us see how crimes are “inquired of”. In accordance with which code, the Penal Code or the Code of Criminal Procedure, which at the same time defines such proceeding? Clearly the latter.

A “criminal action” must be instituted by an “information” prepared by the prosecuting attorney in the name of the People of Porto Bico, in the proper district court; and the rights of the defendant are carefully safeguarded in every particular. Minute regulations are prescribed throughout the Code of Criminal Procedure and especially in sections 2 to 11 inclusive, q. v. But this paragraph of the Penal Code referred to involves also the method of procedure; for it prescribes how the prior crimes shall be prosecuted. We are perfectly willing to accept the definition of procedure given by the Supreme Court of the United States; for there can he no better or higher authority. Counsel quote it from the opinion in the King case, 107 U. S. pp. 231 and 232. It reads as follows:

“The word, “procedure” as a law term, is not well understood, and is not found at all in Bouvier’s Law Dictionary, the best work of the kind in this country. Fortunately a distinguished writer on criminal law in America has adopted it as the title to a work of two volumes: Bishop on Criminal Procedure. In his first chapter he undertakes to define what is meant by procedure. He says: “Section 2. The term ‘proeechn'e’ is so broad in its signification that it is seldom employed in our books as a term of art. It includes in its meaning whatever is embraced by the three technical terms, pleading, evidence and practice.” And in defining practice, in this sense, he says: “The word means those legal rules which direct the course of proceeding to bring parties into the court and the course of the court after they are brought in; and evidence, he says, as part of procedure, “signifies those rules of law whereby we determine what testimony is to be admitted and what to be rejected in each case, and what is the weight to be given to the testimony admitted:”

Since this opinion was written Mr. Rawle has revised Bouvier’s Law Dictionary and now the term “Procedure” is elaborately defined therein as follows:

■ “The methods Of conducting litigation and judicial proceedings. It might be termed by way of illustration, the mechanism of the law, as distinguished from jurisprudence, which is the science of the law.”

The lexicographer then quotes the definition above taken from the 107 U. S. Reports, and discusses the matter at some length. (2 Bouvier’s Law Dictionary, 764.)

How then, is “a criminal action prosecuted”? As set forth in the Code of Criminal Procedure, and not in the Penal Code. We must next enquire in regard to the “punishment”. The word “punishment” is also defined satisfactorily by Bouvier as follows:

“Some pain or penalty warranted by law, inflicted on a person for the commission of a crime or misdemeanor, or for tbe omission of an act required by law, by tbe judgment and command of some lawful court.” 2 Bouvier’s Law Dietionary, page 795.

The matter of punishment clearly falls within the province of the substantive law of the science rather than the adjective law or the machinery of criminal legislation. How is a crime or offense punished? The method is defined in the Code of Criminal Procedure though the extent andi nature of the punishment is defined, limited, and prescribed by the Penal Code. Then the paragraph quoted from section 558, P. C. has three times as much reference to the Code-of Criminal Procedure as it has to the Penal Code. It is-the office of the Code of Criminal Procedure to define gnd set forth the method of inquiring of, prosecuting and punishing a crime, offense or misdemeanor, though the definition of the crime itself and the punishment attached are to be-found in the Penal Code. Then why was not this paragraph included in the Code of Criminal Procedure, instead. of, or in addition to; the Penal Code? Simply because in the-original act, in the laws of California, from which the-codifiers copied their codes, both codes constitute a single act of the Legislature, and in dividing the act into two parts, to conform to the Spanish forms in use, the matter was evidently overlooked.

But it makes no difference in' the effect to be given the paragraph, in what code it appears. It is as much a part of the criminal law in the on'e as in the other. The intention of the legislature is just as apparent from the words, and must be given the same effect by the courts, under the well established rules of construction, no matter in which code the words appear. Then the offense of which the applicant was convicted, having been committed on the 10th day of December, 1901, was properly “inquired of, prosecuted and punished ” in the same manner as was practiced before the passage of the Penal Code. (See Penal Code section 558).

The question is asked, “whoever heard of two procedure acts being in force in a given State or court at the same time?” Certainly this cannot be conceived or practiced in regard to the same criminal case. But in regard to different cases, it is perfectly possible and practicable, in any state, for any court of ordinary capacity, to administer two or three, or more different systems of law at the same time in as many different cases. We see it done in civil cases every day in the United States, when the same court administers law and equity, and dismisses a man’s case on one side of the docket and gives him a judgment on the same state of facts, on the other. That occurs in the same court, in the same case, and on the same facts.

Counsel correctly remarks that “The court will not in any case force a construction of a statute which is contrary to general principles when such an interpretation is not at all needed to save the law, nor called for by the act itself”. Most certainly not. It is by all means the aim of the court to follow and not to contradict general principles. One of these is that statutes shall not have a retroactive effect, unless expressly so declared. (Penal Code section 1). This same principle is one of not only general but almost universal application. It is found in the Spanish Penal Code which was in force in this island when the codes now under consideration were being framed by the Legislature. (Old Penal Code articles 20 and 21.) It is also well known and was constantly applied in the Civil Code known to the Spanish system. The old Civil Code says in article 3 : “Laws shall not have a retroactive effect unless otherwise prescribed therein”. Then the Legislature of Portó Rico, being familiar with this principle, surely had this in mind when they were engaged in so important a work as formulating a system of criminal laws by which this island should in the future be governed. This is one of the most important circumstances surrounding the legislators during the passage of these laws, and must be considered by any court in arriving at the legislative intent in the language of any law.

The question of amelioration of punishment by a subsequent law cannot arise in this case because the punishment is fixed by the Penal Code, and this undoubtedly contains the saving clause heretofore quoted, and thus cuts of all claims to' any benefit from the milder penalties of the new codes. For this reason it matters not whether the Spanish word lesiones means battery wounclings, or something else. The punishment for lesiones is prescribed in the old Penal Code and not interfered with, but expressly continued in force by the new one, hence the whole discussion on that point is irrelevant. The offense of lesiones committed by the prisoner was “inquired of and prosecuted and punished” in the- same manner as if the new code had not been passed; and thus the law was followed, not dnly in its letter, but in its spirit and intent.

Reference has been had to the influence which this decision may have upon civil litigation pending or impending in the insular courts. If such consideration could have any influence in the decision of a case on habeas corpus a sufficient reply to this suggestion would be that such tendency towards influencing civil cases does not seem to us to exist. The construction of the Civil Code and the Code of Civil Procedure are to depend on their own terms and on the well known rules applicable to such laws; The fact that this court regards the entire body of criminal law, as contained in the codes, as a single system, has no reference to the construction to he put on civil- acts, now on the statute books or hereafter to be passed. The entire system of jurisprudence in this island is being changed as rapidly as possible from the ancient Spanish to the modern American plan; and this change need not and cannot be hastened by forcing a construction of a criminal statute so as to make it take a retroactive effect never calculated by the. codifiers, nor intended by its framers.

In view then.of all the circumstances under which these codes were passed, taking into careful consideration 'all the decisions of the appellate tribunals and the doctrines laid down by the text writers hereinbefore quoted, I am forced to the conclusion that the Code of Criminal Procedure, passed and approved for this island on the 1st day of March, 1902, while it took effect according to its terms on the 1st day of July, of that year, and repealed all other laws in conflict with it, yet did not bear upon or control, or change in any way the procedure relating to and governing cases which were prosecuted, or acts which were committed prior to twelve o’clock noon, on said day and date; but that they being excepted from the force of the Penal Code, were thereby also in effect excepted from the scope and purview of the Code of Criminal Procedure.

Taking this view of the case, and having carefully examined the application made by the prisoner for the writ of habeas corpus, and his prayer for enlargement, I concur with my associates in the refusal’of the relief prayed for, believing that he was justly and properly convicted under the procedure applicable to his case, and that he cannot be considered as unjustly imprisoned or restrained of his liberty; and hence that he is not entitled to the benefit of the writ of habeas corpus.

The application should be denied and the prisoner remanded to the penitentiary to complete his term of imprisonment. ■ •  