
    Ex Parte Bird.
    Application for a writ of Habeas Corpus.
    No. 22.
    Decided November 25, 1903.
    Contempt — Jurisdiction,—When in a court consisting of several judges only one presides over trials by jury, such judge by reason of the subject-matter and of his position as trial judge has jurisdiction to hear and determine any case prosecuted for contempt of court thus constituted and to render such sentence as may be proper.
    Id. — Procedure —Trial in the Absence of Dependant.— Contempt of court being a misdemeanor, the trial may be had in the absence of the defendant provided he is represented by counsel.
    Id. — Commitment.—An order of imprisonment for contempt, in addition to the signature of the judge who delivered the sentence, must set forth the acts constituting the contempt, the time and place of the commission thereof, and the attending circumstances, and also the specification of the sentence, otherwise such sentence is wholly invalid and inoperative, and the warrant of commitment issued for the execution thereof is null and void.
    Id. — The power of courts of justice to punish contempts of court committed against their authority is sanctioned by section 7 of the Penal Code. The provisions of the latter, therefore, do not affect those contained in the special act defining and 'punishing the offense of contempt of court, nor is there any conflict between them.
    Id. — Criminal Prosecutions. — Punishment for contempt of court inflicted under the special act does not bar a criminal prosecution for the same offense conducted by the Fiscal of the proper jurisdiction.
    
      STATEMENT OE THE CASE.
    The writ of habeas corpus having been duly returned, the hearing thereon was had, the petitioner Hobart S. Bird being present with his counsel, Santiago B. Palmer, as also the Fiscal of the Supreme Court who verbally assented thereto, and subsequently rectified his opinion, in writing, under instructions received from the Department of Justice to the effect that, inasmuch as the act passed by the Legislative Assembly of this Island “defining the offence of contempt of court and providing for the punishment thereof”, approved March 1, 1908, should be considered as having been repealéd by the Penal Code which took effect on July 1 of the same year, at least as to that part of section 3 of said act which declares invalid the sentence of a court pronounced in cases of contempt, where the commitment fails to comply with the requirements prescribed by said section, this part of the act being deemed to conflict with the Penal Code which subsequently took effect, and contains no such' provision under section 145 thereof in regard to contempt of court. In conclusion he opposed the discharge applied for by the petitioner Hobart S. Bird, and urged that the commitment under which he was imprisoned should be corrected by the presiding judge of the court who ordered the arrest by affixing his signature thereto.
    From the documents filed by the petitioner it appears that criminal proceedings having been instituted by Presiding Judge Arturo Aponte, of the District Court of Mayagüez, as presiding judge of the court wherein the trial by jury of Osvaldo Baez was held, for the offense of contempt of court, against the editor and correspondent of the newspaper “The San Juan News”, edited in this city, namely Hobart S. Bird and Julio Medina, respectively, for publishing in the issue of said paper of the 29th of September last, certain items of news with reference to the proceedings had in aforesaid criminal case, which the presiding judge of the court declared to be false and tending to bring the court into disrepute. Judgment was rendered by the presiding judge of the court, Arturo Aponte, on October 14, following, sentencing the editor of the paper, Hobart S. Bird, to fifteen days of imprisonment in the public jail of Mayagiiez, and to pay a fine of one hundred dollars, and Julio Medina to thirty days of imprisonment in the same jail, and a fine of two hundred dollars and directing that the proper commitment for the execution of said sentence be issued to the official having charge of the public peace, the commitment issued being signed only by the clerk of the District Court of Mayagiiez, and without setting forth the acts constituting the offense imputed to the parties accused. On the strength of said warrant of commitment the petitioner, Hobart S. Bird, was arrested in this city by Lieut. Francisco Tallada, of the Insular Police, who had him in custody up to the time of the institution of the present habeas corpus proceedings.
    
      Messrs. Dexter, Hord and Palmer, for petitioner.
    
      Mr. del Toro, Fiscal, for the People.
   Mr. Chief Justice Quiñones,

after making the above statement of facts, delivered the following opinion of the court:

The publication of the correspondence inserted in the newspaper “The San Juan News”, constituted the offense of contempt of the court that tried the criminal case prosecuted against Osvaldo Baez, as defined by paragraphs 3 and 5 of section 1 of an act of the Legislative Assembly of this Island, “defining the offense of contempt of court and providing for the punishment thereof”, approved March 1, 1902, inasmuch as the news transmitted by the correspondent ' of aforesaid newspaper, declared to be false by the presiding judge of the court, and the accuracy of which was not in any manner substantiated by the parties concerned, tended to bring the court into disrepute, by bringing about suspicion of partiality and lack of integrity on the part-of the presiding judge and the jurors haying cognizance of the case, -whom it was sought to place under suspicion of being bribed or influenced by prominent persons of the locality, to give a decision in favor of the accused and, on the other hand, inasmuch as Judge Arturo Aponte, who presided over the court, was competent to hear and decide the case prosecuted against the parties responsible for aforesaid offense, with absolute independence of the other judges of the District Court whose jurisdiction he assumed, to take cognizance of said case and of all the incidental issues that might be raised in the course of the hearing, among which must he considered as included any contempt committed in the presence of the court or in any other manner provided for by the law, there can be no doubt that the presiding judge of the court", Arturo Aponte, had jurisdiction both by reason of the subject-matter and of his position as trial judge, and was competent to hear and determine the case prosecuted against the aforesaid Hobart S. Bird and Julio Medina, for contempt of said court, and that, therefore, the plea of lack of jurisdiction made by the petitioner in his application should be dismissed.

Nor should any consideration be given to the other allegation of nullity urged by said petitioner, on the ground that the trial was held in his absence, although he had asked for a continuance alleging a just cause therefor, because the trial having been continued for the first time at the request of the same party, and another citation was made and a day set for the hearing, which was had, his counsel being present and alleging what was deemed by him pertinent to his case, the essential formalities of the proceeding were observed, and the party concerned cannot complain of having been deprived of any substantial right, especially when it is a general rule established by section 179 of the Code of Criminal Procedure, which by analogy may be applied as a doctrine in the present case, that in prosecutions for misdemeanors, in which class contempt of court is included, the presence of the defendant is not a necessary condition for the validity of the proceeding, provided he be represented by his counsel.

Notwithstanding this, since by section 3 of aforesaid act referring to contempt of court, it is provided that “whenever a person is fined or committed to jail for a contempt of court, an order or warrant for such fine or imprisonment must he signed by the judge delivering such sentence, setting forth the act or acts constituting such contempt, with the time and place of the commission thereof, and the circumstances thereof, -and specifying the sentence of the court, otherwise such sentence' will be wholly invalid and inoperative’’; and as the warrant issued for the commitment of Hobart S. Bird does not contain the requisites prescribed by aforesaid section, inasmuch as it is not signed by the trial judge, Aponte, nor does it contain a statements of the acts constituting the. contempt, the judgment delivered by .said Judge Aponte is null and void according to the express provisions of the law, and, therefore, the warrant issued for the execution thereof upon the person of Hobart S. Bird, is null and void.

The theory advanced by the Fiscal in his brief to the ■effect that the act of the Legislative Assembly of Porto Rico defining and punishing the offense of contempt of court has been repealed by the Penal Code, cannot be sustained, for aside from the fact that it cannot be presumed that the Legislature intended that a law created for the purpose of strengthening and sustaining the authority and prestige ■of the courts should have only temporary effect — from March 1, 1902, when it was approved, to July 1 of the same year, when the Penal Code took effect — it appears, on the ■contrary, that the latter does not affect it in the least, inasmuch as under section 7 of said code, nothing therein •“affects any power conferred by law upon any court martial or military authority or other officer, to impose or inflict punishment upon offenders; nor any power conferred by law upon any public body, tribunal, or officer, to impose or inflict punishment upon offenders”; from which it is to he-inferred that among these powers is included the one conferred by aforesaid act of the Legislative Assembly upon this Supreme Court, the District Courts and any other analogous or similar tribunals, duly established in Porto Rico to punish contempts committed against their authority, whether in their presence or in any other manner provided for by said act.

This doctrine is strengthened and confirmed by the very act of the Legislative Assembly, section 3 of which provides that “punishment for a contempt of court under this section shall not bar a criminal prosecution for the same offense conducted by the Fiscal of the proper jurisdiction; but where a person so punished is convicted upon such additional prosecution, his previous punishment under this act shall be taken under consideration by the court pronouncing the sentence against him”; whence it is logically to be inferred that there are no contradictory or conflicting provisions in these two laws, but that, on the contrary, they harmonize and agree perfectly, and that both were enacted by the Legislative Assembly with the intention that they should subsist together and at the same time.

The warrant issued for the commitment of the petitioner, Hobart S. Bird, being therefore inoperative and void, it comes under the provisions of paragraph 3, section 483, of the Code of Criminal Procedure, and the writ, as proposed by the Fiscal in his brief, cannot be duplicated, because the judgment rendered'by Judge Aponte being null and void, any writ issued for the execution thereof would likewise be null and void.

In view of the legal provisions cited and the decision of this Supreme Court, delivered May 1, 1903, 3 Porto Rico Reports 501, in a similar proceeding instituted by said Hobart S. Bird, on the occasion of a judgment rendered against him by the District Court of San Juan, for the same offense of contempt of court, the applicaton presented by the petitioner, Hobart S. Bird, is hereby sustained and he is accordingly finally discharged and the bail-bond furnished by him ordered to be cancelled.

Mr. .Justice Hernández, concurred.

Mr. Justice Sulzbacher, also concurred, basing his action on the reasons set forth in his opinion.

Mr. Justice MacLeary dissented.

Mr. Justice Figueras did not sit at the hearing of this case.

Concurring Opinion of

Mr. Justice Sulzbacher.

In signing the opinion of the majority of the court I stated: “I concur in the result, subject to the legal conclusions expressed in my separate opinion.” With that end in view I deem it necessary to make a full statement of the facts in the case.

In the District Court' of Mayagiiez bíobart S. Bird was found guilty of contempt of court. A warrant was issued, and upon his arrest in San Juan,- he applied to this court for a writ of habeas corpus.

From the petition and the record of the District Court it appears that “The San Juan News,” a newspaper published in San Juan, contained an article which the District Court of Mayagiiez considered libelous and contemptuous. The article had reference to a certain trial by jury in ‘which the Hon. Arturo Aponte was the presiding judge, and, as authorized by law in such cases, he alone constituted the District Court for the purpose of that case. At the trial of the contempt proceeding before the Hon. Arturo Aponte, Bird, the defendant, was not 'present. He appeared by attorney, who asked for a continuance of the case on account of his client’s absence, and also moved the court to summon witnesses for his defense. There are also found in the record telegrams from said Bird, directed to the Hon. Arturo Aponte, requesting him that his trial be continued for the reason that he had also been summoned to appear before the District Court of San Juan in another libel suit for the day preceding the one on which he was required to be at Mayagüez. All these requests and motions were denied and the Hon. Arturo Aponte tried the case in the absence of Bird, convicting him and imposing a sentence of fifteen days in jail and to pay a fine of one hundred dollars.

At the hearing of the application for the writ of habeas corpus before this court, the Hon. Fiscal, representing the People of Porto Rico, moved the court to grant the writ of habeas corpus, and to discharge the prisoner for the reason that the warrant for commitment was defective and did not comply with section 3 of the Act of the Legislative Assembly of Porto Rico, approved March 1, 1902, and entitled “An act defining the offense of contempt of court and providing for the punishment thereof”, and which appears in the so-called “Revised Statutes”.

That the warrant had been signed by the clerk of the court instead of the judge delivering the sentence; that it failed to set forth the act or acts constituting the contempt, or any of the requirements prescribed by the said act of the legislature; and that therefore the sentence in said case was invalid and inoperative. In support of this motion the said representative of the People of Porto Rico also stated that this court, in a similar or identical case, had decided this same question, and that the writ was then granted and the prisoner discharged. This case was decided on the 1st of May, 1902. Said section reads:

“Section 3. — (146)-—When a criminal contempt is committed in the immediate presence and view of the court, the punishment therefor may be inflicted immediately by the court or the presiding judge thereof. When such contempt is not so committed, the person or persons charged therewith must be notified of the accusation and be given reasonable time to defend against such charge; and whenever a person is fined or committed to jail for a contempt of court, an order or warrant for such fine or imprisonment must be signed by the judge delivering such sentence, setting forth the act or acts constituting such contempt, with the time and place of the commission thereof, and the circumstance thereof, and ■ specifying the sentence of the court; otherwise such sentence will be wholly invalid and inoperative.
“Punishment for contempt of court under. this section shall not bar a criminal prosecution for the same offense conducted by the Fiscal of the proper jurisdiction, but where a person so punished is convicted upon such additional prosecution his previous punishment under this Act shall be taken into consideration by the court pronouncing the sentence against him.”

On a subsequent date the Hon. Fiscal appeared in court and asked leave to file a brief, and his motion was granted. By this brief it is claimed that the above-mentioned act of the legislature was repealed by the enactment of the Penal Code, which also contains a. law in reference to contempt of court. The former act, which was approved on March 1, 1902, took .effect on the day of its passage, whilst the Penal Code, which was also approved bn March 1, 1902, by its provision took effect on July 1, 1902; therefore it is claimed the first act would only be in force from the 1st of March until the 1st of July, when it would be superseded by the laws of contempt contained in the Penal Code. The effect of this position would virtually be that this court should reverse its former decisions and the precedent established thereby.

The question before this court is therefore chiefly this: What law in reference to contempt of court is in force in Porto Ribo, the first one contained in the Revised Statutes, or the one of the Penal Code ?

Courts are not infallible. They should be willing to change their views, adopt new theories, and even reverse themselves when they discover that, by their former decisions, errors have been committed. These revocations, however, must be exercised with the greatest caution. The community relies upon the decisions of the Supreme Courts in their transactions and in the advisability of litigations.

There are well-known principles of American jurisprudence in the construction of statutes. A subsequent law often repeals a prior one. When there áre two statutes upon the same subject, a court should, if possible, construe them together and harmonize them; but if it should appear that this cannot be done, and that they are incompatible and in absolute conflict, neither law is in force.

To arrive at fair and logical conclusions courts should always endeavor to ascertain the real intention of the legislator and this can frequently be determined by considering all surrounding conditions existing at the time of the passage of the laws.

During the Spanish sovereignty, punishment for contempt of court, to the extent of its existence in the United States, was not known, but when the “Foraker Act” established the judicial tribunals on this island, thereby making them American courts, they became at once vested with the inherent power to punish for contempt. The legislature, however, has seen fit to define this power, to prescribe the punishment which a court may impose and to outline certain rules and proceedings to carry out the law.

The power of a court to punish for contempt is an extraordinary prerogative. The courts are the judges and the judges are the courts. If a person, a's a judge, is libeled, it is contempt of court. This proceeding is almost in contravention to the ancient legal maxim “nemo propia causa judex esse debet”. Judges are human. ‘ They may not always be capable of discriminating and discerning how far the court and how far the judge has been offended. The line of distinction is narrow, and it requires frequently a keen scrutiny of the most discreet and impartial judgment, of prudence, caution, fairness and judicial independence, to determine where the individual personality ends, and where the judicial character begins.

For this reason the authorities have held that whenever extraordinary privileges are conceded, such laws must be strictly followed. They are mandatory and not directory, and any deviation makes the proceedings void. The legislature here has gpne so far as to declare that if a warrant in a contempt proceeding does not contain certain provisions “the sentence shall be wholly invalid and inoperative.”

It might be contended that a new warrant of commitment could be issued, if the first one did not comply with the law. This would, seemingly, be erroneous, for Church on Habeas Corpus lays down the following doctrine :

“Where a person adjudged to be in contempt- has been taken to jail under an illegal commitment, he cannot be held under a legal commitment subsequently made out. This rule would not apply, however, where the first commitment was merely informal and not illegal.”

In the case before this court the warrant was not informal, but absolutely void. The law is well settled, and based upon sound logic, that when a court in such incidents has, by its own errors, failed, it is not permitted to harass and vex a person the second time; its faculties are exhausted.

Therefore, if the first mentioned law contained in the Revised Statutes is still in force, and the warrant of commitment being invalid and inoperative, the sentence of the court is void and the prisoner must be discharged. '

From a further examination of the record I also find that the court has failed to comply with the law from its incip-iency.

Section 3 indicates that when the contempt is not committed in the immediate presence of the court “the person or persons charged therewith must be notified of the accusation and be given a reasonable time to defend against such charge.” There must be an accusation. An accusation as defined by the authorities is a “charge made to a competent officer against one who has committed a crime or misdemeanor, so that he may be brought to justice.”

The record of the District Court of Mayagüez is before this court. It does not contain any accusation of any kind. The Hon. Arturo Aponte acted entirely upon his own motion. The basis of the proceedings is his own order to show cause. It begins:

“Bule for contempt. Now comes Arturo Aponte, presiding judge of the District Court of Porto Bico, for the District of Mayagüez, upon bis own motion states,” etc.

The judgment or sentence of the court, after the trial does not set forth, in any direct manner, the act or acts constituting the contempt, nor the time and place of the commission thereof. True it is that the statute does not require this, but the law is imperative that a warrant ox commitment must contain those requisites. The judgment forms the basis for the warrant. If the former is insufficient the latter must naturally be fatal. And even if it were permitted to reform and amend the warrant, which, however, I hold could not be permitted, there would be nothing from which to amend. It is therefore evident that the whole contempt proceedings before Judge Aponte were void ab initio.

But said section 3 also says: “and be given a reasonable time to defend against said charge”. If Judge Aponte considered that Bird could have been before his court at the time he was required to appear, but disregarded the order, he could have issued a warrant for his arrest, and punished him for another contempt; but he had no authority to proceed with the case during his absence, a fortiori, when his attorney made a proper application to the court for witnesses to be summoned for the defense of his client.

The Supreme Court of California in the suit of McClatchy v. Superior Court, 119, p. 419, decided this question fully.

This was a case where a charge for contempt of court was made against the publisher of a newspaper, alleging publications therein which were grossly inaccurate and false, and intended to degrade the said court, and incite public prejudice and contempt against it, and were unlawful interferences with the proceedings of the court. At the trial of the •case the defendant, the publisher, offered certain testimony to show that the publication in the newspaper was true. This the court denied, and the case- being carried to the Supreme Court, we find the following expressions by that tribunal:

“And the party charged therewith (contempt) although the proceeding is more or less summary in character, has the same inalienable right to be heard in his defense, especially in instances like the present, of a mere constructive contempt, as he would against the charge of murder, or any other crime.”

On this subject it is said in Rapalje on Contempts, section 111:

“Contempt of court is of two kinds — that which is committed in open court, and that which is committed out of view and hearing of the court. For -the punishment of the first, by commitment and fine, no proceeding need be taken contradictorily with the offender, but for the punishment of the latter and by the same means, the offender must be allowed to offer evidence and argument in his defense; otherwise any judgment which the court may pronounce will be absolutely void.”

The court, continuing, refers to the case of State v. Orleans Civil Judges, 32 La. Ann. 1256, 1262:

“ The charge of contempt should not in any case be followed by a sentence of imprisonment unless after a rule to show cause has been granted, and the party defendant therein is permitted to offer evidence and argument. And it is held that anything else than that would constitute a want of ‘ due process of law and proceeding not in accord with the law of the land’ rendering the judgment void.”

The court then cities a decision of the Supreme Court of the United States, the highest tribunal in the land:

“It is a rule as old as law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant until he has been duly cited to appear and has been afforded an opportunity to be heard. Judgment without such citation aud opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is duly administered.” Galpin v. Page, 18 Wall. 350.

In continuation the Supreme Court of California says:

“These considerations make it manifest that petitioner at his trial in the court below was denied that ‘ due process of law ’ requisite to a valid conviction; and for that reason the order convicting him of contempt must be annulled”.

In the ease before the Supreme Court of California the editor of the newspaper was personally in’ court during the trial, whilst in the ease before this District Court of Maya-giiez, the editor Bird was not even present. Church on Habeas Corpus lays down the following doctrine:

“A summary conviction which does not show that evidence against the prisoner on his examination was given in his presence is bad; and the rule applies as well to warrants of commitment, which operate in themselves as -convictions. On the return of warrant to a writ of habeas corpus ad subji-ciendum, and which fails to show that the evidence heard before the committing magistrate was given in the presence of the party to be charged the court will release the prisoner from custody.”

We must next consider whether said law was repealed by the Penal Code, which, by its section 14, provides, that “every person guilty of any contempt of court, of either of the following kinds, is guilty of a misdemeanor.” Art. 7.— “The publication of a false or grossly inaccurate report of the proceedings of any court.” The present case might perhaps come within said article.

The Code provides. that contempt of court shall be a misdemeanor, and we are met by. the proposition: what is ■a misdemeanor, how are offenses of that character prosecuted and tried and how punished ? The following sections of the Penal Code answer the questions.

“Section 14. — -A felony is a crime which is punishable with death, or by imprisonment in the penitentiary. Every other crime is a misdemeanor.”
“Section 16. — Except in cases where a different punishment is prescribed by this Code every offense declared to be a misdemeanor is punishable by imprisonment in jail not exceeding two years or by a fine not exeeding two hundred and fifty dollars, or by both.”
“Section 3. — Every offense of which the District • Court has jurisdiction must be prosecuted by information filed by the prosecuting attorney in open court, verified by his affidavit that the information is based upon testimony of witnesses sworn before him or before the justice of the peace;.”
“Section 66. — All the forms of pleadings in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code.”
“Section 67. — The first pleading on the part of the People is the information.”
“Section 68. — The information is an allegation in writing made to a District Court by the prosecuting attorney charging a person with a public offense.”
“Section 69. — The information when filed shall be known as the presentment and must be presented to the court and be filed with the clerk thereof.”

Granting that the Penal Code repealed the general law contained in the Revised Statutes, and arguing along those lines, contempt of court would he a misdemeanor, and the law of Criminal Procedure must he applied. The record of the District Court in this case plainly shows that the proceedings prescribed by the law of Criminal Procedure were totally ignored. Not alone that the prosecuting officer did not present any sworn information, as imperatively required by law, he did not even take part in the proceedings. The Hon. Arturo Aponte, one of the judges of the District Court, tried the case alone. Such a proceeding is certainly in absolute violation of the existing criminal procedure.

The law creating the District Courts reads as follows:

“Each District Court will be composed of three judges, one of whom shall be presiding judge and who jointly shall constitute the bench in civil and criminal business.”

Three judges constitute the District Court, except in jury trials, when, in accordance with a certain law of the Insular Legislature, one judge alone can preside, in such cases. In all others the District Court must he composed of three judges, “who jointly constitute a bench for civil and criminal business.”

Although the alleged contempt referred to a proceeding of the District Court in a jury trial, where Judge Aponte alone constituted the court, nevertheless he alone had no jurisdiction to try a case of contempt as a misdemeanor. He had no more authority to. try this misdemeanor than any other offense of a like category.

In a recent case before this court, Mauleón, Ex parte, (ante p. 227); there was cited from Ex parte Schaw, 7 Ohio State 81, the following language :

“But if the court has sentenced the relator for an offense over which by law it had no jurisdiction, 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”.

We also find in Church on Habeas Corpus,

“Section 326.- — -If it appears that the court rendering a judgment for contempt was not legally constituted, the act is without authority, and void, and the prisoner will be discharged on habeas corpus.”

The Code of Criminal Procedurel (Habeas Corpus), by its section 483 declaring when a prisoner must be discharged on habeas corpus, states:

“Article 1. — When the jurisdiction of such court or officer has been exceeded.”

Judge Aponte alone did not constitute the court to try a misdemeanor, and upon the theory that the law, as contained in the Penal Code, making contempt of court a misdemeanor to be the only one in existence in Porto Rico, all the proceedings must he void, and the prisoner must likewise be discharged.

It might be contended, and with all propriety, that, at a trial for a misdemeanor, the defendant need not be in court when represented by attorney, but in view of the very fact that this issue was never tried as a misdemeanor, nor by a court having jurisdiction of misdemeanors, I need not consider whether or not the defendant’s attorney consented that the trial should proceed during the absence of his client.

These views would dispose of the case, but this court has other functions to perform, and it becomes its duty, when called upon, to solve doubtful and ambigous questions, so as to establish precedents for the better administration of justice.

We have stated before what the object and purpose of the Legislature must have been in enacting laws for the punishment of contempt of court. By the law of the Revised Statutes, each court is made its own judge to try such incidents, but if the Penal Code repeals that law, a contempt is a misdemeanor, which must be referred to and tried by the courts of the proper urisdiction. In this present case, the District Court of Mayagíiez and not the Hon. Arturo Aponte alone would have had to try the case, the Fiscal of the District Court having first performed all the requirements prescribed by law. The inherent power tacitly granted by the Foraker Law to the courts to punish for contempt would have been taken away by the Penal Code to the effect that if a person would commit a contempt of court against this Supreme Court, and this court not having any original jurisdiction, application would have to be made to the District Court to punish the contempt committed. Inconceivable and illogical as this appears it would nevertheless be the only natural consequence, but we can safely assert that such was never the intention of the Legislature.

Both laws were enacted on the same day and had the Legislature intended that the Penal Code should repeal the general law, contained in the Revised Statutes, although the former took effect four months later, it would have indicated its purpose in plain terms. It could not be consistently urged that that body should have aimed to grant each court and each judge the prerogative to punish contempts of court for- the period of four months only, and thereafter, in some instances, to call in’ other judges to perform those functions with them or have another tribunal to do so.

It could be contended that the repeal is by implication. The Supreme Court of the United States has held: “Repeals by implication are not favored. They are seldom, except on the ground of repugnance, and never when the former act can stand together with the new act.” Ex parte Yerger, 8 Wall. 105. But the Legislature having in mind possibilities and probalities and so as to avoid conflicts, enacted the following sections in the same Penal Code.

“ Section 6. — Nothing in this act affects any of the statutes, laws, orders or parts thereof enacted by the Congress of the United States, the Executive Council under power granted by law, or the Legislative Assembly of Porto Rico, except so far as they have been repealed or affected by subsequent laws.”
“ Section 7. — This code does not affect any power conferred by law upon any court martial, or military authority or other officer, to impose or inflict punishment upon offenders; nor any power conferred by law upon any public body, tribunal, or officer, to impose or inflict punishment upon offenders.”

From these sections it appears that the Legislature did not intend to repeal, but on the contrary, to leave intact the prerogative law of the Revised Statutes, “ defining the offense of contempt of court,” etc. The same being i£a law of the Legislature of Porto Rico,” and thereby “imposing and inflicting punishment on offenders.”

It is conceded, that the Penal Code was copied from the statutes of Montana, and the latter from those, of California. The language of the statute here is verbatim that of Montana. When one state adopts the laws of another state they are accepted, together with the decisions of the Supreme Court of the original state, is a well established doctrine.

We find in the decisions of the Supreme Court of Montana, vol. 24, State v. District Court, 35, the following:

“ One guilty of contempt of court by wilful disobedience of an injunction order lawfully issued may be punished under the summary procedure provided for by Title V, supra, or he may be dealt with under the Penal Code as for a misdemeanor, under section 293 where a contempt of court is specifically made a misdemeanor.
“The statutes of contempt of court in Montana were taken from California, where they have been examined and passed upon repeatedly. (Ex parte Gould, 99 Cal. 360, 21 L. R. A. 751; McClatchy v. Superior Court, 119 Cal. 419, 51 Pac. 696, 39 L. R. A. 691.) In ex parte Hollis, 59 Cal. 408, followed in Ex parte Gould, supra, contempt of court is decided to be a public offense, punishable by indictment or information, as well as by the summary proceedings prescribed by the Code of Civil Procedure.”

It is therefore evident that in the States of Montana and California two concurrent remedies exist to punish con-tempts of court; one by the summary proceeding and the other trying it as a misdemeanor.

Here likewise we have, two concurrent proceedings; the one by applying the law of contempt of the Revised Statutes, the other following the Penal Code. Both laws can well stand together. They are not in conflict; there is no ground of repugnance.

I am therefore of the opinion that the decisions of the Supreme Court of Montana and of California are applicable and that, like in those states, also in Porto Pico, there are two concurrent proceedings to punish for contempt of court, hut a strict compliance with the one or the other law would he required.

In the case before this court neither the one nor the other has been followed.

Dissenting opinion of

Mr. Justice MacLeary.

The applicant in this case, Hobart S. Bird, was sentenced to fine and imprisonment for contempt of court by the District Court of Mayagüez, on the 14th day of October, 1903; and on being arrested by Lieut. Tallada of the Insular Police, sued out a writ of habeas corpus, before this court.

Six grounds are alleged as a basis for the application, and ■are set out therein as follows:

“1st. — The said sentence and judgment attempted to be rendered by the .said Judge Aponte was illegal and void because it was not the judgment of .the court but only of one judge thereof;
“2nd. — Because neither the said Judge Aponte nor the said District Court of Mayagiiez had any jurisdiction to render the aforesaid sentence for the reason that no act of contempt or offense was committed by your petitioner for which the said sentence could be imposed in accordance with law;
“3rd.- — -Because the said sentence and the proceedings thereunder, and the said arrest and detention of your petitioner, was contrary to the Constitution and laws of the United States in that the said proceedings did not constitute due process of law, your petitioner being deprived of the right of reasonable-preparation to make a defense to the charge against him and because the said sentence and judgment, the proceedings upon which the same were based, was and is in derogation of the constitutional rights of your petitioner,, and amount to an abridgment of the freedom of the press; and he was not. present when the sentence was rendered.
“ 4th. — Because no service of process was made upon your petitioner, the-only notifications which were received by him having been served by the; Insular Police who are without authority of law to execute such processes.
“ 5th. — Because the article published as aforesaid is not a contempt under the laws of Porto Rico and that neither the said Judge Aponte nor the said District Court had jurisdiction to render the aforesaid sentence against your petitioner for contempt of court in publishing the same.
“ 6th, — And for the further reason that the order or warrant under which he has been taken into custody is irregular and void, because it fails to set forth the acts constituting such contempt with the time and place of the commission thereof and the circumstances thereof.”

These will be considered in their order, after giving a brief statement of the preliminary facts.

During the trial of the case of Osvaldo Baez, before Judge Aponte and a jury, certain criticisms were made in the San Juan News, a periodical of which the prisoner is the editor and manager, reflecting on the honor and integrity of the presiding judge. When the case was concluded, Bird was ruled to show cause why he should not be punished for contempt. He appeared by counsel and on the hearing was adjudged guilty and his punishment fixed at a fine of one hundred dollars and imprisonment for fifteen days in the District Jail at Mayagiiez.

The first ground of complaint calls in question the power of the presiding judge of the District Court to punish the prisoner for contempt, as he was sitting alone and the court is composed of three judges. Although there are three District Judges in each court, it is not always necessary that all of them should act in every case. The criminal case of Baez was on trial before Judge Aponte and a jury when the acts constituting the contempt were committed. They had direct reference to the proceedings in that case. The contempt proceedings growing out of the jury trial were a mere branch of the case of Baez, and in such cases under the statutes of Porto Rico only one of the three district judges sits, and he constitutes the court.

This is plainly set forth in section 232 of the Code of Criminal Procedure, which reads as follows:

“Section 232. — In all trials by jury there shall be but one presiding judge who shall receive the appointment or assignment from time to time through the attorney general as he may deem proper. In questions of new trials, however, there Vay b'e a full'bench.”

ITe is so recognized by many other provisions of the law of Criminal Procedure, and this is the universal custom in the American States. One judge can, and very often does, constitute a court. The judge or judges themselves are known as the court when duly convened. The word court is so defined in Bouvier’s Law Dictionary, p. 452. Then there can be no doubt'that the presiding judge had the power to punish for contempt as there is nothing in the first ground of the application mentioned.

The second ground alleged for the enlargement of the applicant is substantially the same as the fifth, that the publication did not constitute a contempt and hence the District Court of Mayagiiez had no jurisdiction of the subject-matter. This will be discussed later on, in connection with the fifth reason assigned.

The third ground alleged by the applicant, in his complaint against the sentence pronounced against him, would be entitled to great weight, in the consideration of this case, if it were founded on facts. Contempt proceedings, though summary in their character, have always been held to be within the requirement that all accused persons shall have the benefit of “due process of law”. The allusion to the freedom of the press is rather obscure. It certainly cannot be contended that a newspaper editor, or a reporter under his direction, has a right to disregard the laws, and to publish “false or grossly inaccurate reports of the proceedings of any court”; and yet unless it means this it can mean nothing. Perhaps it was designed as a hook on which to hang an appeal, in case this application should not be successful. In regard to being denied an opportunity of making preparation for his defense, the record shows that he had thirteen days, which is certainly long enough. Moreover this ground was not pressed in argument and may be properly treated as having been abandoned.

The fourth reason given by the prisoner for his liberation is that the process by which he was brought before the trial court was served by the members of the Insular Police, who are not authorized by law to execute criminal process. This is the very purpose of the organization and the authority is amply given in the statute. (See Penal Code section 133; and Code of Criminal Procedure, sections 12, 13, 97, 100, 116, 127, 135 and 136.) Besides the prisoner appeared by his counsel in open court and made no such objection; and even if his original arrest had been illegal his voluntary-appearance covers all defects in the process or in the authority of the. officer serving the same. This position is altogether untenable and is unworthy of serious consideration.

He also claims, in the same connection, that he was tried in his absence; and that he could not be present at the trial, because he had to attend on a prosecution for libel before the District Court of San Juan on the 12th, and this hearing was held at Mayagüez on the 13th. If this was true he should have presented the facts in an affidavit to the court at Mayagüez, and asked- for a further postponement. This he failed to do, and the court properly proceeded with the trial. It is true that every man has a fundamental right to be heard in his own defense, and if he has been denied this right, the court which condemns him unheard exceeds its jurisdiction, and such a judgment will not justify imprisonment. (McClatchy v. Superior Court, 119 Cal. 418. Postal Tel. Co. v. Adams, 155 U. S. 689.) But in this case, the prisoner was cited, appeared by counsel, and was defended by a lawyer of his own selection on the trial, and has on this point certainly nothing of which to complain. This was all that was necessary in a misdemeanor case, such as a contempt. (See sections 179 and 132 Code of Criminal Procedure.)- In misdemeanor cases it is the universal custom, and the practice well sanctioned by law, in the States on the Continent, to try the defendant in his absence when he has appeared by counsel.

The prisoner further complains, in the fifth of the grounds alleged, that the newspaper article on whicn the contempt proceedings are based does not constitute a contempt of court. It does not unless it is “The publication of a false or grossly inaccurate report of the proceedings of the court,” as defined in paragraph 7 of section 145 of the Penal Code. That question could be easily determined by the trial judge on an inspection of the article contained in the newspaper. Certainly the trial court would know at once, from his own knowledge, on perusing the report whether it was “false or grossly inaccurate.” Should there be any doubt on the subject evidence could be produced by either party to show the facts in the matter. The court has determined the report to be false or grossly inaccurate; and nothing appearing to be contrary on habeas corpus this court must regard the decision as correct. Beyond all doubt the prisoner was guilty of a contempt. • The punishment fixed did not exceed the the terms of the law, in fact was lenient in view of the facts.

In considering the sixth ground alleged, in regard to the illegality of the warrant, we find in the Revised Statutes and Codes of Porto Rico two distinct statutes on this same subject; the first entitled. “An Act defining the offense of contempt of court and providing for the-punishment thereof,” and the second being contained in Title X of the Penal Code and designated as section 145 thereof. Both of these laws were passed" and approved on the same day, the 1st of March, 1902. But the first act went into effect from and after its passage, and the second on the 1st day of July following, four months later. The Penal Code has the usual repealing clause, abrogating all laws or parts of laws in conflict therewith. Besides the Code of Criminal Procedure of Porto Rico was passed and approved on the same day with the other acts, having a similar repealing clause and taking effect, like the Penal Code, four months thereafter.

A careful study of these three statutes, taken in connection, shows that the contempt act is in some of its parts in conflict with some of the provisions of the subsequent codes. The codes are-in effect a revision of all previous laws on the subject of crimes and criminal procedure, and the system of penal laws which they contain was evidently intended to replace all previous systems of a like nature. In such cases the conflicting provisions of the former statute must be held to be repealed. (Sutherland Stat. Con., sec. 154, and cases cited.)

Let us compare the two statutes which are contained in the same volume and cover the matter of contempts of court. In the first place each of them contains a clause in substance declaring that, “An act which besides being a contempt may also be a crime is punishable both as a contempt and- a' crime.” (Rev. Stat. & Codes of P. R. pp 85 and 503.) It was evidently intended that the two remedies should be concurrent and neither should interfere with the other. So far as observed similar provisions are found in the statutes of all the states. And to commit a contempt of court is declared to be a misdemeanor. (Penal Code, sec. 145, p. 502.) A misdemeanor where the punishment is not otherwise prescribed by the Penal Code is punished by a fine not exceeding two hundred and fifty dollars or by imprisonment in jail not exceeding two years or by both. (Penal Code, sec. 16, p. 471.) This conflicts with the second section of the contempt act, which limits the fine to two hundred dollars and the imprisonment not to exceed thirty days or both, in the discretion of the court. Let us now take up the other provisions of the two acts concerning contempts. The act defining con-tempts divides them into five classes, the Penal Code divides them into eight. The first section of the former act reads as follows:

“Section 1. — (144) The Supreme Court, the District Courts, and any court of record duly established in Porto Rico, shall have to power to punish for criminal contempt, any person or persons guilty of any of the following acts:
“1. Breach of the peace, noise or other disturbance directly tending to interrupt its proceedings, or disorderly, contemptuous or insolent conduct towards a court or justice thereof, in its presence or during its session, and tending to interrupt its proceedings.
“2. Willful disobedience of, or resistance offered to or exerted against any lawful writ, mandate or order issued or made by any such court in a suit or action pending therein.
“3. Scurrilous or libelous criticism of the orders, judgments, writs or pro. ceedings of any court published in any public print or newspaper or circular for circulation, tending ■ to bring the court or any of its members into undeserved disrepute.
“4. The unlawful or contumacious refusal of any person to be sworn or properly qualify as a witness in any cause pending in such court, or after being sworn or qualified the refusal without lawful excuse, to answer any legal interrogatory.
“5. The willful publication of any false or grossly inaccurate report of judicial proceedings: Provided, however, that the publication of any true and fair report of any judicial proceeding shall not be punishable as a contempt.”

The corresponding section of the Penal Code reads thns:

“Section 145. — Every person guilty of any contempt of court of either of the following kinds, is guilty of misdemeanor:
“1. Disorderly, contemptuos, or insolent behavior committed during the sitting of any court of justice, in immediate view and presence of the court, and directly tending to interrupt its proceedings or to impair the respect due to its authority.
“2. Behavior of the like character committed in the presence of any referee, while actually engaged in any trial or hearing, pursuant to the order of any court, or in the presence of any jury while actually sitting for the trial of a cause or upon any inquest or other proceedings authorized by law.
“3. Any breach of the peace, noise or other disturbance directly tending to interrupt the proceedings of any court.
“4. Willful disobedience of any process or order lawfully issued by any court.
“5. Resistance willfully offered by-any person to the lawful order or process of any court.
“6. The disobedient and unlawful refusal of any person to be sworn as a witness; or, when so sworn, the like refusal to answer any material question.
“7. The publication of a false or grossly inaccurate report of the proceedings of any court.
“8. Presenting to any court having power to pass sentence upon any prisoner under conviction, or to any member of such court, any affidavit or testimony, or representation of any kind, verbal or written, in aggravation or mitigation of the punishment to be imposed upon such prisoner, except as provided in this code. ”

It will be seen by a comparison that there is no substan-tia! difference between the first paragraphs of these sections; the Penal Code elaborating a little the provisions of the former law.

■ The second paragraph of the first section of the act defining contempts may be compared with paragraphs 4 and 5 of the corresponding section of the Penal Code and they will be found to be practically identical.

The third paragraph of the first section of the act defining contempts is somewhat condensed in the seventh paragraph of the corresponding section of the code, but the substantial meaning is to all intents and purposes identical. In fact, inasmuch as the fifth paragraph of the act defining con-tempts is almost a verbatim copy of the seventh paragraph in the Penal Code, or vice-versa, the third paragraph of the former act may be considered to be omitted in the latter. >

The fourth paragraph of the first section of the act defining contempts relating to the contumacious conduct of witnesses is slightly condensed in the sixth paragraph of the Penal Code, but there is no material difference in the language or the signification.

The fifth paragraph of the 1st section of the act defining contempts reads as follows:

“The willful publication of any false or grossly inaccurate report of judicial proceedings; Provided, however, that the publication of any true and fair report of any judicial proceeding shall not be punishable as a contempt.”

The seventh paragraph of section 145 of the Penal Code which is copied - above is almost identical and reads as follows:

“ The publication of any false or grossly inaccurate report of the proceedings of any court.”

These are the paragraphs covering the contempt of which the prisoner was convicted and it is readily seen that it-matters not which law was in the mind of the court in passing sentence, the conviction was authorized by either.

There are two classes of behavior which are classified as contempts in the Penal Code which are not included in the act defining contempts. They are taken from the Code as follows:

“2. Behavior of the like character committed in the presence of any referee, while actually engaged in any trial or hearing, pursuant to the order of any court, or in the presence of any jury while actually sitting for the trial of a cause, or upon any inquest or other proceedings authorized by law.”
“8. ' Presenting to any court having power to pass sentence upon any prisoner under conviction or to any member of such court, any affidavit, or testimony, or representation of any kind, verbal or written, in aggravation or mitigation of the punishment to be imposed upon such prisoner, except as provided in this code.”

There is no corresponding language in the former act. But neither of these paragraphs could have any possible relation to the case before us.. It will be seen as intimated above by a comparison of the third and fifth paragraphs of the 1st section of the act concerning contempts with the 7th paragraph of section 145 of the Penal Code, that the acts charged against the prisoner if proven would constitute a contempt; under either law. Then' as far as this case is concerned the section of the Penal Code quoted does not conflict with the act defining contempts. The penalty however, prescribed by the Penal Code may be made greater than that prescribed by the other act concerning contempts, hut no minimum having been prescribed by either act, and the punishment imposed being within the maximum limits fixed by each act, this difference becomes immaterial in the consideration of this case. In so far then as concerns this case, whatever conflicts there may be between the acts concerning contempts and the Penal Code are not material. They are more verbal than substantial. They can be reconciled and harmonized without straining the text to any appreciable extent.

But the latter part of the third section of the act concerning contempts prescribing the requisites of the "order or warrant” is in serious conflict with sections 327 and 329 of the Code of Criminal Procedure. The portion of the said third section referred to reads as follows:

“And whenever a person is fined or committed to jail for a contempt of court and order or warrant for such imprisonment must be signed by the judge delivering such sentence, setting forth the act or acts constituting such contempt, with the time and place of the commission thereof, and the circumstances thereof, and specifying the sentence of the court; otherwise, such sentence will be wholly invalid and inoperative.”

The conflicting sections of the Code of Criminal Procedure read as follows:

“Section 327. — When a judgment, other than of death, has been pronounced, a certified copy of the entry thereof upon the minutes must be forthwith furnished to the officer whose duty is to execute the judgment, and no other warrant, or authority is necessary to justify or require its execution.”
“Section 329. — If the judgment is for imprisonment, or a fine, and imprisonment until it be paid, the defendant must forthwith be committed to the custody of the proper officer, and by him detained until the judgment is complied with.”

Of course these conflicting statutes cannot stand together or be harmonized. It is useless to say that the act concerning contempt is' a special act. There is nothing in the statute book anywhere to show that, or to give one statute perference over another, except the rule that the latest -expression of the legislative will must prevail. The object of the act defining contempts is expressed in the title to be “Defining the Offense of Contempt of Court and Providing for the Punishment Thereof.” It 'Was not specially designed to prescribe the requisites of warrants of arrest nor to settle the forms of judgments. The Code of Criminal Procedure from which sections 327 and 329 quoted above were taken, has as its special object to establish a code of procedure. Procedure is define by Bouvier to be “The methods of conducting litigation and judicial proceedings.” This definition is substantially condensed from an opinion of the Supreme Court of the United States in 107 U. S., 231. Then it was the very purpose of these latter sections to lay down the requisites of orders and warrants, and as the act in which they are found took effect four months later than the other act, the terms of these sections must prevail over those of the act first mentioned, and that act must be considered as abrogated and repealed. ■

Then what authority has the officer to hold the prisoner? Nothing but a commitment signed by the clerk. This writ is provided for under section 329 of the Code of Criminal Procedure, which reads as stated above. Under this section the commitment held by the officer being in the usual form of such a writ, is amply' sufficient for his arrest and delivery to the jailer at Mayagfiez. After the prisoner has been delivered to the jailer that officer must have a certified copy of the judgment provided for in section 327 above quoted. Then the prisoner cannot be liberated on account of any defect in the process rendering it void, as prescribed in section 483, paragraph 3, of the Code of Criminal Procedure treating of habeas corpus. The writ is sufficient to hold the prisoner.

The basis of the judgment liberating the prisoner in this case is laid on the construction of a part of section 3 of the act defining contempts. That entire section reads as follows:

“Section 3. — '(146) When a criminal contempt is committed in the immediate presence and view of the court, the punishment therefor may be inflicted immediately by the court or the presiding judge thereof. When such contempt is not so committed, the person or persons charged therewith must be notified of the accusation and be given reasonable time to defend against such charge; and whenever a person is fined or committed to jail for a contempt of court, and order or warrant for such fine or imprisonment must he signed by the judge delivering such sentence, setting forth the act or acts constituting such contempt, with the time and place of the commission thereoj, and the circumstances thereof, and specifying the sentence of the court; otherwise such sentence will he wholly invalid and inoperative.
“Punishment for a contempt of court under this section shall not bar a criminal prosecution for the same offense conducted by the fiscal of the proper jurisdiction, but where a person so punished, is convicted upon such additional prosecution, his previous punishment under this act shall be taken into consideration by the court pronouncing the sentence against him.”

This language italicized above is supposed to prescribe the requisites of the commitment under which a person adjudged guilty of contempt shall be committed to jail. It is difficult to find another statute similar to this. Is there any reason why a commitment in a contempt case should be different from such a writ in any other misdemeanor? The person convicted has been duly cited, had his day in court, his defense, whatever it may have been, duly considered, and he is condemned to imprisonment. He is perfectly aware of the terms of the judgment and the reasons on which it is founded. Is such a case of so much greater importance than a simple assault, or petty theft, or a common breach of the peace, that the writ in this case must be “signed by the judge delivering such sentence” and must besides “set forth the act or acts constituting such contempt, with the time and place pf the commission thereof, and the circumstances thereof?” If so, the reason of such importance is not readily apparent to the ordinary legal mind. But the language of this section goes further and requires to be specified “ the sentence of the court” and clinches the nail by adding “otherwise such sentence will be wholly invalid and inoperative”. It is beyond question that the commitment or mittimus in this case does not comply with the supposed requisites prescribed in this section. Then what is the consequence ? Does it invalidate the judgment of the court? In the opinion of some of my colleagues it does. This may be a literal construction of the law. But if it is desired to give a strictly literal construction to the statute then it must be observed that the “order or warrant” is the document of which these requirement are predicated; hence, giving effect to the disjunctive conjunction “or”, the law is satisfied if either the order or the warrant is drawn in accordance with the terms prescribed. The words “order” and “warrant” are not synonymous by any means. The word “order” is defined by Bouvier, who is said by the Supreme Court of the United States to be the best legal lexicographer (107 U. S. p. 231), as follows:

“An order is any direction of a court or jqdge made or entered in writing, and not included in a judgment. N. Y. Code of Proc. Sec. 400; 51 la. 127. But a decree is often called an order.”

The word “warrant” is defined by the same high authority as follows:

“A writ issued by a justice of the peace or other authorized officer, directed to a constable or other proper person, requiring him to arrest a person therein named, charged with committing some offense, and to bring him before that or some other justice of the peace.”

Why such matters as those mentioned should be set forth in the warrant is very hard to understand, unless it should be that it was intendedfto set them out in the judgment which is here called an “order”, and that having been neglected, from any cause the defect could be supplied by setting them forth in the warrant or the commitment or mittimus, as the writ should have been properly styled; the word warrant being more properly applied to the writ by which the prisoner is first apprehended and brought before the court for trial. Any other construction would make a defect in the commitment render the judgment of the court, or at least the disposing part of it called the sentence, “wholly invalid and inoperative”. This is extremely illogical. The commitment should depend for its validity on the judgment and not the judgment on the commitment. That a perfectly valid and righteous judgment of a court of competent jurisdiction rendered in a cause over which it had power to act, both in reference to the party and the subject matter, should become “invalid and inoperative” because of a defect in a writ, generally issued by the clerk and which the judge of the court rarely if ever sees, is bordering on absurdity. But possibly it was intended when the contempt should be committed in the presence of the court, and the act imposing the fine may be very summary, that the order and the warrant might be conbined and virtually included in the same instrument, and this method was taken of preserving a record of the case. But such is not the case at bar. Here the contempt was not direct but constructive and the proceedings must be founded on an affidavit, or a rule to show cause, and there must be a formal trial and judgment entered in the'usual way, and there is no occasion to combine the order and the warrant, or the judgment and the commitment, more properly speaking, together; but each should be rendered and issued separately .in the form usual in such documents.

But all the authorities go to show that a statute should never be so construed as to involve an absurdity or even an inconvenience unless it is plainly so intended. The Supreme Court of California, from which our system of criminal law has been derived, uses in various decisions, on this subject, the following pertinent language :

“ The legislature never contemplated any such absurd result. 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 wliensuch construction leads to an absurdity.” (People v. Craycroft, 111 Cal. 544; Stockton School District v. Wright, 134 Cal. 68.)
“ It is presumed that the legislature intended to impart to its enactments such a meaning as would render them operative and effective. (Black on Interpretation of Laws, 112, and cases cited.) ‘Interpretation must be reasonable.’ (Civil Code, sec. 3542.)
“The interpretation should lean strongly to avoid absurd consequences, and even great inconvenience; for the legislative meaning is to be carried out, and it cannot be supposed to be any of these. Great public interests will not needlessly be put at hazard by the interpretation. (Bishop’s Written Law, c. 19.)” (People v. Curry, 130 Cal. 94 and 95. )
“A statute may be construed contrary to its literal meaning, when a literal construction would result in an absurdity or inconsistency; and the reason and intention of the lawgiver will control the strict letter of the law when to adhere to the strict letter would lead to injustice or absurdity.”
“ It cannot be denied the language of this act is broad enough to include the franchise and privilege which the petitioner seeks, but a statute will not always be held to include every case which falls within its literal terms; the penalty of death denounced against any person who draws blood in the street is not incurred by a surgeon who bleeds one who has fallen in a fit, and so, generally no law will be so applied as to work a palpable absurdity. ’ (People v. Craycroft, 111 Cal. 547.)
“A construction should not be given to a statute, if it can be avoided, which will lead to absurd results, or to a conclusion plainly not contemplated by the legislature.” (Merced Bank v. Cassacia, 103 Cal. 645.)

Then we aré certainly not called upon to-follow such a literal interpretation of this statute as to lead us to the obvious absurdity of invalidating the judgment of the court on account of defects in the commitment, or warrant if it can be so called. The only reasonable interpretation of these provisions of the statute is that the disjunctive conjunctive '“or” was inserted to enable any omission in the judgment, or “order”, to be corrected in the commitment, or “warrant”. It is claimed further that, inasmuch as the code makes contempt of court a misdemeanor, it cannot be punished summarily, but must be prosecuted by complaint before a court having jurisdiction of a misdemeanor case. This proposition is answered by the code itself, which says:

‘An act which besides being a crime may also be a contempt, is punishable both as a contempt and a crime.” Penal Code, section 145, last lines.

Similar language is used in the act defining contempts. (Revised Statutes and Codes of Porto Rico, p. 85.) Our statute of contempts as contained in section 145 of the Penal Code is almost exactly identical with section 293 of the Penal Code of Montana, both having been copied from the Penal Code of California. In the case of ex rel. Flynn v. The District Court, 24 Montana 35, the Supreme Court of that State, speaking through Mr. Justice Hunt, says:

“A contempt of court punishable by fine or imprisonment, or both, is a public offense, under section 15 of the Penal Code, which defines a crime or public offense as an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed upon conviction a punishment either of death, imprisonment or fine, etc. One guilty of contempt of court by wilful disobedience of an injunction order lawfully issued may be punished under the summary procedure provided for by Title V, supra, or he may be dealt with under the Penal Code as for a misdemeanor, under section 293, where a contempt of court is specifically made a misdemeanor.
“The statutes of contempt of court in Montana were taken from California, where they have been examined and passed upon repeatedly. (Ex parte Gould, 99 Cal. 360, 38 Pac. 1112, 21 L. R. A. 751; Cosby v. Superior Court, 110 Cal. 52, 42 Pac. 460; Schwarz v. Superior Court, 111 Cal. 112, 43 Pac. 460; McClotchy v. Superior Court, 119 Cal. 419, 51 Pac. 696, 39 L. R. A. 691.) In Ex parte Hollis, 59 Cal. 408, followed in Ex parte Gould, supra, contempt of court is decided to be a public offense, punishable by indictment or information, as well as by the summary proceedings prescribed by the Code of Civil Procedure.”

This, with the California cases cited, certainly settles this question adversely to any such objection, if the language of our own statutes could be deemed insufficient.

But it is suggested that the Penal Code does not repeal the act defining contempts nor modify, any part of it as contended here, because an exception is made by section 7 of the Code which covers the act mentioned. This section of the Code reads as follows:

“Section 7. — This Code does not affect any power conferred by law upon any court martial or military authority or other officer, to impose or inflict punishment upon offenders; nor any power conferred by law upon any public body, tribunal or officer, to impose or inflict punishment upon offenders.”

This language has no reference to district courts, unless the word “tribunal” is intended to include “courts”. Now this is not a common use for the word tribunal in English. And no where else in the code is this word used in such a sense. It is true that “tribunal” sometimes means a “court or forum”, hut if the legislature had intended to refer to any “court” in this section they would have used that word. From the context it was evidently intended to refer to a. specially constituted body with quasi judicial powers, like-the Executive Council or a special commission appointed to investigate and decide some disputed question. But this section cannot refer to the third section of the act defining contempts, because the latter has no reference to “imposing or inflicting punishment upon offenders”, but solely to the form of an “order or warrant” which lies within the purview of the Code of Criminal Procedure, which contains no such section as; number 7 above quoted. Then there :can be no reliance placed on this section as a saving clause to protect-the latter clause of section 3 of the act defining contempts from repeal. Inasmuch,, therefore, as sections 327 and 329 admit of no exceptions, any warrant which complies with their terms is valid. Tried by this square the warrant exhibited by the police officer in his return to the writ of habeas corpus is amply sufficient to justify him in holding the prisoner.

. The whole record has been brought before this court on the request of counsel for applicant and is to be considered in evidence.

Some reluctance is shown to re-examine the question of the force and effect of the third section of the act defining contempts, because this court decided in a sentence pronounced in the case of H. S. Bird, ex parte,-on the 1st of May, 1903, 3 Porto Rico Reports, 501, that defects in the writ of commitment rendered the judgment void. When a decision of any court is found to be erroneous the same tribunal, even when composed of the same identical persons, ought not to hesitate for a moment to overrule it and follow the law. Two errors or more persisted in from time to time can never, make an erroneous ruling right. When the court gets off the track, and discovers the true path again, it should lose no time in retracing its steps. When a wise man corrects an error into which he has unwittingly fallen he only shows the world that he is wiser to-day than he was yesterday. At any rate, for my part, I can never consent to be wrong any longer when an opportunity is offered to set myself right. In my opinion the decision in the case of Bird, ex parte, dated 1st of May, 1903, 3 Porto Rico Reports, 501, should be at once overruled.

Besides all the foregoing reasons it is well settled by the Supreme Court of the United States that defects in a commitment are immaterial when sufficient grounds for the detention of the prisoner appear. Mr. Justice Gray, delivering the opinion of that court, in a well considered case, decided in 1891, uses the language following:

•‘A writ of habeas corpus is not like an action to recover damages for an unlawful arrest or commitment, but its object is to ascertain whether the prisoner can be lawfully detained in custody; and if sufficient grounds for his detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment.” Citing Ex parte Bollman & Swartwout, 4 Cranch, 75, 114, 125; Coleman v. Yennessee, 97 U. S. 509, 519; United States v. McBratney, 104 U. S. 621, 624 ; Kelly v. Thomas, 15 Gray, 192; the King v. Marks, 3 East 157; Shuttleworth’s Case, 9 Q. B. 651. (See Nishimura Ekiu v. United States, 142 U. S. 651.)

Surely it cannot'be contended that no sufficient ground for detaining this prisoner has been shown. According to the judgment of the court which had jurisdiction of the person and the subject-matter he has been found “guilty of contempt of the authority of the court”, the record setting out in full-the facts on which the judgment was based, and was sentenced to fine and imprisonment. No evidence was offered to show the truth of the offensive publication, and no other justification is shown. The six technical objections raised on the trial of this proceeding are clearly not well founded, as appears on the detailed examination which has been made of each them in their order. Then why should the ends of justice be defeated by his liberation merely on account of defects, if any there might be, “in the original arrest or commitment”. Such a course seems to me like permitting defendants to trifle with the process of the courts, and to use a writ, almost sacred by its devotion to the cause of liberty, as a shield to shelter the guilty from deserved punishment.

Then reviewing this case from the beginning to the end, considering it in all its aspects, and giving due weight to every point made by the applicant, it is plainly apparent that he is not “unlawfully imprisoned or restrained of his liberty” (Section 469, Code of Criminal Procedure), and that none of the reasons mentioned in section 483 of the Code of Criminal Procedure can be urged in his favor, and that he is not entitled to his discharge. He should therefore be recommitted to the custody of the Insular Police to be dealt with according to the orders of the trial court.  