
    People of Porto Rico, Plaintiff and Appellee, v. Andrés Torres-Gómez, Defendant and Appellant.
    No. 2405.
    Argued April 14, 1925.
    Decided July 8, 1925.
    Murder — Manslaughter—Dormer Jeopardy. — After the jury had been impaneled and sworn the defendant made a so-called “motion of former jeopardy” in the nature of a motion to quash the indictment on the theory of an acquittal of the charge of murder by reason of the previous conviction of manslaughter. Held: That although the trial had been conducted up to the time of the motion as one for murder in the first degree, it can not be said that overruling the motion was error in the absence of authority or argument more persuasive than the vague suggestion of possible prejudice in the minds of the jury.
    District Court of Ponce, R. Díaz Cintrón, J. Judgment of conviction of manslaughter.
    
      Affirmed.
    
    
      Fernando B. Fornaris and Cristino B. Colón for tbe appellant. José E. Figueras, Fiscal, for the appellee.
   Mu. Justice Hutchison

delivered tbe opinion of tbe court.

Defendant was tried upon an indictment for murder and convicted of manslaughter. On appeal tbe judgment was reversed and tbe case remanded for a new trial. 33 P.R.R., page 179, decided May 26, 1924.

Thereupon defendant was again tried upon tbe same indictment, but under instructions covering manslaughter only and excluding the possibility of a conviction of the higher offense. Again tbe jury found defendant guilty of manslaughter; and be now insists that tbe second judgment should be likewise reversed for reasons stated as follows :

“1. — That tbe court erred in denying a motion of former jeopardy in connection witb tbe crime of murder, wbicb tbe accused presented by bis attorney ';
“2. — That tbe court erred in allowing tbe fiscal to avail bimself of the previous verdict referring thereto as a reason or justification for trying tbe case anew;
“3. — That tbe court erred in its ruling on tbe motion of former jeopardy in connection with tbe crime of murder, wbicb should have been submitted to the jury for its consideration;
“é.- — That the court erred in its instructions to tbe jury in that they do not harmonize witb tbe information upon wbicb tbe trial was bad, thus causing confusion in tbe mind of tbe jury;
“5. — That the verdict of tbe jury is contrary to law and to the evidence produced in tbe ease.”

Tbe so-called “motion of former jeopardy” was not in tbe form of a plea, but rather in tbe nature of a motion to quash or “dismiss” tbe indictment, upon tbe theory of an acquittal of tbe charge of murder by reason of tbe previous conviction of manslaughter.

This motion was not made until after tbe jury bad been impanelled and sworn and the indictment read.

Tbe prosecuting attorney objected to tbe proposed “dismissal” upon tbe ground that tbe motion came too late* citing People v. Marrero, 18 P.R.R. 888; People v. McFarlane, 138 Cal. 481, and 7 Cal. Jur., sec. 101. Nevertheless, tbe fiscal conceded and volunteered tbe suggestion vtbat tbe proper course, in tbe circumstances, would be to proceed with tbe trial as one for manslaughter only under proper instructions to tbe jury.

Thereupon the judge denied tbe motion and tbe defense excepted “because,” as stated by counsel, “we understand that there is no indiptment.”

It is quite true, as pointed out by appellant, that up to tbe time of this motion tbe case bad been conducted as a trial for murder in tbe first degree. Indeed, tbe first twenty pages or more of the stenographic record might be said to contain a sort of census of qualified and disqualified jurors in a capital case, and to this extent might be made the basis for a tabulated statement as to conflicting views in the district in regard to the death penalty.

But the active cooperation of counsel for defendant in staging an expensive farce of the kind indicated does not tend to strengthen the contention now made that the court below erred in denying the long delayed motion to quash, when the question of a former acquittal was finally brought to its attention. In the absence of any citation of authority demanding serious consideration or of any more persuasive argument than a vague suggestion of possible prejudice in the minds of the jurors, as a result of these formidable preliminaries, we are not prepared at this time to say that the trial judge erred as intimated in the first assignment. '

The record does not disclose the fact, if it be a fact, that the fiscal referred in argument to the previous verdict, to say nothing of objection made to such comment, or of any ruling thereon, or of exception taken to such ruling, if made.

The supposititious error suggested in the third assignment, if committed, was invited and superinduced by counsel for defendant. Nor is a vivid imagination required to picture what the attitude of counsel on appeal might have been if the trial judge had charged the jury upon murder in the first and second degrees as issues involved in the case and had left to them the question of fact as to a former acquittal vel non, in the absence of any formal plea or disclosure of an intention to defend upon such ground, or of evidence adduced upon such a theory, or of any request for the submission of such an issue.

There is no complaint of the instructions actually given, covering the matter of manslaughter, which upon the whole were fair and as favorable to defendant as can be reasonably expected. The argument under the fourth assignment is almost as brief and as unintelligible as the assignment itself. In so far as we understand it, the answer-may be found in wbat has been said already with reference to the third assignment.

There was evidence tending to show self-defense, and some testimony which, if believed, as apparently it was believed by the jury, sufficed to support a verdict of manslaughter. The refusal of the trial judge to grant a new trial is not assigned as error and we are not disposed to disturb the conclusion reached by two different juries who heard the testimony as it came from the witnesses on the stand.

The judgment appealed from must be affirmed.  