
    The People of Puerto Rico, Plaintiff and Appellee, v. Sixto Rivera, Defendant and Appellant.
    No. 5771.
    Argued December 6, 1935.
    Decided December 11, 1935.
    
      R. Davila Ortiz and R. García Cintron for appellant. R. A. Gómez, Prosecuting Attorney, and Luis Janer, Assistant Prosecuting Attorney, for appellee.
   Mr. Justice Córdova Davila

delivered the opinion of the court.

On the night of November 11, 1932, the appellant, Sixto Rivera, and Antonio Delgado were fighting in the Plaza José de Diego, in Yabucoa, and at that moment Antonio López, an Insular Policeman, appeared at the place of the occurrence and seized a revolver, and subsequently filed a complaint against Antonio Delgado and Sixto Rivera for breach of the peace, and against Rivera for carrying a weapon. The court found the defendant guilty of the latter offense and sentenced him to 30 days in jail. From that judgment the said Sixto Rivera took an appeal, urging that the lower court had erred in weighing the evidence and had acted moved by passion, prejudice, and partiality. The witnesses who testified in this case were: the policeman Antonio López, Antonio Delgado, José Fiol, and Cruz Alicea for the prosecution; Inocencio González, Agustín Delgado, and defendant Sixto Rivera, for the defense.

The policeman Antonio López stated that on the night of November 11, 1932, he saw two men fighting in the Plaza José de Diego, in Yabucoa; that one of them was the appellant herein and the other Antonio Delgado; that the latter informed the witness that the appellant had a revolver; and that when the two men rose from the ground the policeman seized a revolver from the rear pocket of defendant’s trousers. Antonio Delgado testified that he had a fight with defendant; that they slipped and fell to the ground; that many persons gathered there who intervened to separate them; that policeman López then arrested them and took them into custody; that he could not say whether a revolver was found on the person of the accused, because in the scuffle he could not determine; that he did not inform the policeman that the accused had a revolver. José Fiol testified that when Antonio Delgado and the accused grappled with each other and fell to Die ground, the policeman Antonio López arrived, set them upright, and found a revolver on the ground which he picked up; that he did not see the policeman seize a weapon from one of defendant’s pockets, but that it is true that a revolver was seized which the policeman picked up from the ground. Cruz Alicea testified that the accused and Antonio Delgado engaged in a fight and fell to the ground; that then policeman López arrived, got him up and when he did so there was a revolver under him, and the policeman seized it and took it to headquarters; that that was all he knew. Inocen-cio Gronzález, a witness for the defense, testified that he went to the place where Antonio Delgado and the accused were and he saw policeman Antonio López separating them; that the policeman found a revolver which he picked up from the ground; that he did not see him search the defendant Sixto Rivera and that the only revolver seized there was the one which lay on the ground. Agustín Delgado testified that he saw when the accused and Antonio Delgado grappled with each other, Don Sixto falling underneath and Antonio on top; that at that moment the policeman arrived and separated them and picked up a revolver from the ground near a lamp post. Defendant Sixto Rivera testified that he had a fight with Antonio Delgado, that they fell to the ground and he unfortunately fell underneath; that there were several friends who attempted to separate them, and that then policeman López arrived, who helped them to their feet, and told the accused to go on to the jail; that the policeman did not take any revolver from him nor did he search him; that he noticed that the policeman at a distance of about 2 meters more or less, stooped and picked up a revolver; and that said revolver did not belong to him.

Such was briefly the evidence introduced with respect to the seizure of the revolver by the policeman Antonio López. The lower court in rendering judgment said:

“The court has no reason, in spite of the statements made, to doubt the testimony of the policeman complainant in this case, Mr. Antonio López, to whom it gives full credit considering his testimony as true in its entirety, and finds you, Mr. Rivera, guilty of the crime of carrying a weapon and sentences you to thirty days in jail.”

This case involves merely the weighing of the evidence. The court a quo believed the testimony of policeman López and it does not seem to have erred. All the witnesses with the exception of Antonio Delgado, who conld not positively state whether the policeman López had seized a revolver from the accused, agree that there was a revolver. The only discrepancy noted is that Antonio López stated that he took it from the pocket of the accused, whereas the witnesses for the defense and some for the prosecution testified that the revolver was found on the ground. Taking the statements of these witnesses as a basis, it is reasonable to conclude that the revolver, found in the same place where the fight occurred, belonged to one of the participants. If it was found on the ground because one of them dropped it, it would 'only be natural for the policeman to try to find out which of the two was carrying it. If, as stated by some of the witnesses the revolver was found on the ground, we would have to assume that this policeman, without stgpping to investigate and without any reason, capriciously decided to accuse Sixto Rivera of carrying the weapon found. Of the two versions we think that that of the policeman is the more worthy of belief. The lower court so found, and gave full credit to his testimony. It has not been shown that in so doing said court acted under the influence of passion, prejudice, or partiality, and therefore, the judgment appealed from must be affirmed.  