
    The People v. Bosch.
    Appeal from the District Court of Ponce.
    No. 56.
    Decided May 2, 1904.
    Information — Witnesses.—The Fiscal must base Ms information, upon the testimony of witnesses who have been examined before him under oath, and the circumstance that one of the witnesses for the prosecution may not have been examined in that manner is not sufficient to conclude that the other witnesses were not, the presumption being, in the absence of proof to the contrary, that the witnesses were examined under oath by the Fiscal.
    
    Appeal — Evidence.'—The Supreme Court will not consider any probatory element on appeal wMch has not been submitted for the consideration of the trial court.
    The facts are stated in the opinion.
    
      Mr. Rossy (Manuel F.), for appellant.
    
      Mr. del Toro, Fiscal, for the People.
   MR. Justice MacLeary

delivered the following opinion of the court:

This is an appeal from a judgment of conviction rendered against the defendant by the District Court of Ponce, on the 4th day of May, 1903, by which the accused, Enrique Bosch, was found guilty of the crime of prohibited negotiations, defined in section 205 of the Political Code, and. punished in accordance with section 86 of the Penal Code, and sentenced to pay a fine of two hundred dollars, which might be satisfied, in the event of its non-payment, in the jail at Ponce, by serving one day for each dollar, and that he should be forever incapacitated from exercising any public office, and to pay all the costs of the prosecution. From this judgment of the district court the defendant took an appeal to this Supreme Court, and his bond was fixed at one thousand dollars, pending the appeal.

During the progress of the trial the defendant filed to the accusation the following peremptory exception:

“To tbe Honorable District Court of Justice:—
“Enrique Boscb, accused in a criminal case of tbe supposed crime of prohibited negotiations', respectfully appears before your honor, through the undersigned attorney, and states: That he having been conceded the period of five days to answer the information, makes objection to the same, for the following fact and judicial reason: Fact. The Fiscal in his information states that he presents the same in view of the testimony of witnesses sworn before him, and une of those witnesses being Mrs. Maude C. Hill, it is obvious that said statement of the Fiscal is not exact, as the signature of said official does not appear attached to the declaration of this witness. Law. The defendant may demur to the information, when it does not substantially conform to the requirements of section 72. (Section 153 of the Code of Criminal Procedure.) Said section 72 requires that the information presented contain the declaration of witnesses sworn before the Fiscal. I beg to be allowed to introduce evidence to prove the facts alleged, and pray the honorable court to hear my objections at its convenience, and allow the exception.”

This exception was argued before the court by counsel, pro and con, and overruled; to which ruling of the court defendant’s counsel reserved an exception in order that the same might be presented to this court. The defendant properly took his appeal, which was admitted by the district court, and the record forwarded in proper form.

No attorney having appeared in this court on behalf of the appellant, the case was submitted on brief and oral argument by the Fiscal, and duly heard on the 20th of April, before the full bench.

The accusation presented by the Fiscal was in effect as follows, to wit:

“In the name and by the authority of the People of Porto Bieo. The People of Porto Bieo against Enrique Bosch. In the District Court of Ponce, on the thirty-first day of January, of the year of 1903. The prosecuting attorney files an information against Enrique Bosch for the crime of illegal negotations, defined in sections 86 and 94 of the Penal Code, committed as follows: In tbe month of August of the year 1902, in the town of Adjun-tas, judicial district of Ponce, Doña Pilar Rivera, widow of Aparicio, who rented a house for school purposes to the school board of said town, agreed with Don Enrique Bosch, secretary of said board, to accept one hundred dollars, fifty in cash and fifty in the shape of a horse, in consideration of which she transferred her right to receive the rents for the months of August, September, October, and November, to the accused, amounting to sixty dollars for the first two months, and one hundred dollars for the last two months, aggregating one hundred and sixty dollars, delivering to him the orders corresponding-to said months, together with the corresponding receipt duly signed; which transaction Bosch voluntarily and illegally carried out, in violation of section 205 of the Political Code. This act is contrary to the law for such cases provided, and against the peace and dignity of the People of Porto Rico. — J. Tous, Prosecuting Attorney for the District. The foregoing information is based upon the testimony of witnesses examined, under oath, by me, and I solemnly believe that there is just cause for the same to be presented to the court. — J. Tous, District Attorney.” .

Of course the law requires that the Fiscal shall base his information upon the testimony of witnesses who have been duly sworn before him, but even if it.were the case that Maude 0. Hill, one of the witnesses, was not duly sworn, there are four others who were introduced and testified upon the trial, who may have been duly sworn as certified to by the Fiscal, and in the absence of proof to the contrary the presumption will be indulged that these witnesses testified before the Fiscal after having been duly sworn, and that on their testimony the information was based.

For this reason the order of the district court overruling the objection to the information was correct, and the information itself was sufficient. There is no other argument presented either in the court below or in this court, in behalf of the accused, and a diligent review of the record discloses -no material error. The facts of this case, which are undisputed, are briefly set forth by the trial court as follows:

“In the month, of August of the year 1902, in the town of Adjun-tas, judicial district of Ponce, Doña Pilar Rivera, widow of Aparicio, who rented a house for school purposes to the school hoard of said town, agreed with Don Enrique Bosch, secretary of said board, to accept one hundred dollars, fifty in cash, and fifty in the shape of a horse, in consideration of which she transferred her right to receive the rents for the months of August, September, October and November, to the accused, amounting to sixty dollars for the first two months and one hundred dollars for the last two months, aggregating one hundred and sixty dollars, together with the corresponding orders to said months, delivered to him the receipt duly signed; which transaction Bosch voluntarily and illegally carried out, in violation of section 205 of the Political Code.”

Reviewing all the sections of the Codes which pertain to this case, to wit, sections 72, 153 and 347 of the Code of Criminal Procedure, section 86 of the Penal Code taken in connection with section 205 of the Political Code, and applying them to the facts of the case as proven and set forth in the judgment of the court, there is no escaping the conclusion that the defendant is guilty of the crime of which he was convicted, and his punishment should follow.

The lawyer, Mr. Manuel F. Rossy, in thé name of the accused, has presented to this Supreme Court a certificate with a view to exculpating his client, hut such document cannot be considered here, for the reason that it forms no part of those taken into account hy the District Court of Ponce in rendering the judgment from which this appeal is taken.

For this reason, and because no error appears in the proceedings or in the judgment of the court below, the judgment in this case is hereby affirmed.

Affirmed.

Chief Justice Quiñones and Justices Hernández, Figueras and Sulzbacher concurred.  