
    UNITED STATES v. PEDRO ROCHE
    San Juan,
    Criminal,
    No. 1185.
    New Trial.
    New Trial — Evidence.
    • 1. Matters going to tlie credibility of tile evidence are exclusively for the jury.
    Evidence — Previous Offenses.
    2. Previous losses of letters may be given in evidence on an indictment for robbing the mails, as showing why a decoy letter,, which is in evidence, was sent.
    
      Criminal Cases — Assignment of Counsel.
    3. The law does not require the assignment of eounsel for prisoners, hut. where apparently necessary or where desired, they will he assigned so far as possible.
    Opinion filed January 5, 1920.
    
      Mr. M. M. Martin, District Attorney, for the government.
    
      Mr. M. Ii. Francis for defendant.
   HamiltoN, Judge,

delivered the following opinion':'

After losses of letters at Fortuna postoffice the postal authorities sent a decoy letter from Ponce which would pass through Fortuna. As a result the marked bills which were in the letter were found in the drawer of a piece of furniture belonging to defendant, who was postal clerk. There was some evidence also of a confession. The defendant is an intelligent young man, very voluble, who said nothing, about wanting counsel, but to whom counsel was assigned the day of the trial. The defense set up was that a woman living with the defendant had from jealousy opened the letter and placed the money where it would incriminate the defendant himself. There is no. evidence of this except his surmise. The jury found the defendant guilty, with recommendation to clemency.

1. The unsatisfactory nature of circumstantial evidence and counsel’s disbelief of some of the evidence have been earnestly brought to the court’s attention as a ground for a new trial. These matters, however, go to the credibility of the evidence and are for the jury. The jury evidently took them into account, and there does not seem to be any glaring inconsistency between the verdict of the jury and the facts as presented on the trial. Indeed the defendant’s trying to throw the blame upon a woman whom he had himself wronged not only tends to make his evidence unworthy of belief, but reflects upon him in every way.

2. It is urged that the court, erred in permitting the post-office inspector to testify that there had been previous losses of letters at the Fortuna postoffice, inasmuch as this might tend to prejudice the jury against the defendant. There was no intimation that the previous losses had been clue to this defendant, and it is difficult to see how the sending of a decoy letter could be justified by the authorities unless there was evidence of previous losses of mail. Evidence of this kind is frequently looked upon with disfavor by juries, and since it had to be shown that a decoy letter was sent, all the circumstances connected with the sending should be set out in order that the jury might understand the whole situation. Otherwise it would seem that a trap was being laid without any justification, and the government’s case impaired accordingly. The reason for sending the decoy letter was part of the res gestee of sending' the letter itself. There was no error in admitting the evidence.

3. A more difficult question is connected with the matter of assignment of counsel. It has long been the rule in Anglo-Saxon courts that a defendant may be represented by counsel, but- this .has not gone to the extent, certainly in the Federal courts, of the appointment of an official defender of poor prisoners. In the state courts frequently pauper cases are assigned to different members of the bar, generally young lawyers who take them for the practice they get, and theoretically at least it is regarded as a duty imposed by tbe Court and wbicb one cannot cleeline. Something analogous bas prevailed in tbe Federal court in Porto Rico, but tbe bar not being a large one, and there being no general day for arraignment on account of tbe continuous session of tbe grand jury, there bas been no general •assignment of counsel to prisoners. Tbe practice bas always been if a prisoner asks for counsel to assign one, and when a case is called for trial and it appears that- there is no counsel for tbe defendant, tbe court assigns counsel if prisoner desires it and it is practicable to obtain tbe services of a lawyer. ' Sometimes tbe prisoners do not wish counsel. They are frequently good talkers themselves and trust to their own testimony. Indeed something similar bas happened in Anglo-Saxon courts, Avbere Horne Tooke’s defense of himself is one of tbe remarkable traditions of tbe bar. A recess is always taken to allow counsel to confer with the defendant and outline tbe case. Cases have occurred where an adjournment bas been allowed to secure tbe attendance of necessary witnesses, of course at tbe expense of tbe government. In tbe case at bar such postponement was not asked for, and even on the application for a new trial, no new testimony and'no application to secure further witness is suggested, exeept as to an affidavit of a man in jail, and what be would testify is admitted by the district attorney. It occurs to the court that lack of time did not weaken tbe defense in this case so much as tbe lack of facts to justify any defense.

A new trial must, therefore, be denied. It is so ordered.  