
    The People v. Rodriguez.
    Appeal from the District Court of San Juan.
    No. 9.
    Decided May 29, 1903.
    Appeal. — Ebeoe Apparent ebom the Reoobd. — When there is error apparent from the record in a criminal case, the appellate court may review the same without the necessity of a hill of exceptions.
    Eobgeby. — Any person who makes use of a forged document, knowing that it is forged and with intent to defraud, is guilty of forgery.
    The facts are stated in the opinion.
    
      Mr. Moreno Calderón, for appellant.
    
      Mr. del Toro, (Fiscal) for respondent.
   Mr. Justice MacLeary,

delivered the following opinion of the court:

This is an appeal from the District Court of San Juan, from a judgment of the said court, sentencing the defendant to five years in the penitentiary, at hard labor, and to the payment of the costs. He was accused of the crime of forgery, and the circumstances of the case were as follows:

Rodriguez bought from Doña Rosalía Santiago, who resided with her son-in-law, José Puig, in the city of Caguas, tobacco which was valued at the sum of four thousand fifty-nine pesos and twenty-seven centavos. The tobacco was delivered to him in San Juan, and when Puig came to San Juan to.collect the money the defendant Rodriguez refused to make payment and presented to the said Puig an order signed with the name of Rosalia Santiago, directing Rodriguez to pay the amount of the debt to the bearer. Puig refused to acknowledge the validity of this paper, or to accept a settlement on that basis, and reported the matter to the police.

On the trial it developed that the order presented to Rodriguez, and purporting to be signed by Mrs. Santiago was a forgery. No explanation was made by the defendant, in regard to the person who was alleged to have presented the order, or was the bearer of the same. Testimony of experts was introduced with the usual uncertainty and variation, of opinion, as to the genuineness of the signature. The court in its judgment found the facts to be as follows; to wit:

“That Manuel Rodriguez Perez contracted with Don José Puig for a quantity of tobacco, the value of which amounted to four thousand fifty-nine pesos and twenty-seven centavos, and upon the arrival of the vendor in this city and demanding of the said Rodriguez the payment of the above mentioned sum, the latter presented a letter signed by Rosalia Santiago, in which Rodriguez was ordered to deliver the said amount to the bearer of the letter. Rodriguez alleged to have complied with the same, but from the proofs presented it appears that the letter was not from the above mentioned woman, who is the mother-in-law of Puig, of which fact the court was convinced by the expert and other testimony, and from the testimony introduced by the accused Rodriguez, and that the letter was neither genuine in contents nor signature, and that by said counterfeit letter it was attempted illigitimately and illegally to elude the payment of the debt, to the prejudice of Ruiz; it not having been possible to ascertain who was the material author of the falsification, the court declares Manuél Rodriguez Perez guilty of forgery, condemning him to five years in the penitentiary at hard labor, and the payment of the costs; the tobacco being confiscated and at the disposition of José Puig, its owner. ”

On the trial, in the court below, the arguments of counsel were made along the same lines as those' presented in this court, resulting as appears from the above quotation in the conviction of the defendant, and his condemnation to five years in the penitentiary at hard labor.

An appeal was taken in due time, and the appeal comes up to this court for consideration and review.

On the trial held in this court, Moreno Calderón, Esq., made the point that in the first place the evidence did not show his client to be guilty, and in the second place that if he was guilty of any crime it was of swindling and not of forgery.

Article 413 of the Penal Code defines the crime of forgery, and also of uttering a forged instrument, as will be seen by a perusal of the same, which reads as follows:

“ Section 413. — ■Every person, who with intent to defraud another, falsely makes, alters, forges, or counterfeits any charter, letters-patent, deed, lease, indenture, writing obligatory, will, testament, codicil, annuity, bond, covenant, bank-bill, or note, post-note, check, draft, bill of exchange, contract, promissory note, due bill for the payment of money or property, receipt for money or property, passage ticket, power of attorney, or any certificate for any share, right or interest in the stock of any corporation or association, or any comptroller’s warrant for the payment of money at the treasury, treasurer’s or order warrant, or request for the payment of money, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing, acquittance, release, or discharge for any debt, account, suit, action, demand, or other thing, real or personal, or any transfer or assurance of money, certificates or shares of stock, goods, chattels, or other property whatever or any letter of attorney, or other power to receive money, or to receive or transfer certificates of shares of stock or annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or tenements, or other estate, real or personal, or any acceptance or indorsement of any bill of exchange, promissory note, draft, order or assignment of any bonds, writing obligatory, or promissory note for money or other property, or counterfeits or forges the seal or handwriting of another, or utters, publishes, passes or attempts to pass, as true and genuine, any of the above named false, altered, forged or counterfeited matters, as above specified and described, knowing the same to be false, altered, forged or counterfeited, with intent to prejudice, damage, or defraud any person; or who with intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court or the return of any officer to any process of any court, is guilty of forgery. ”

Counsel for the defendant contended that article 470 which defines the crime of swindling, should be applied to the facts of this case, but a casual perusal of this article will show that it has no application to such facts. It reads as follows:

“Section 470. — Every person who knowingly and designedly, by false or fraudulent representation or pretenses, defrauds any other person of money or property, or who causes or procures others to report falsely of his wealth or mercantile character, and by thus imposing upon any person obtains credit, and thereby fraudulently gets into possession of money or property, is punishable in the same manner and to the same extent as for larceny of the money or property so obtained. ”

Counsel also refers to article 430, which treats of grand larceny, but said article does not apply to this case. Other points are made by counsel, in his brief filed herein, but it is not necessary to introduce them in detail.

The Fiscal of this court opposes this appeal, reciting the facts proven on the trial, and pointing out that there is no bill of exceptions contained in the record. He also contends that the facts proven on the trial, in the court below, constitute the crime of forgery, and that although the court which tried the case declares that it has not been possible to ascertain who was the real author of the order, it declares that the same was not the act of Mrs. Santiago, the signature being a counterfeit and that the accused used the same, knowing that it was a counterfeit and not genuine in any respect, with the intention of defrauding his creditor.

In regard to the absence of a bill of exceptions in this case, there is no question presented in the record rendering a bill of exceptions necessary, as will be seen by sections 294, 296, and 297 of the Code of Criminal Procedure. The error, if any, committed by the court below, is apparent on the record as it stands, consisting, as it is alleged to do by defendant’s counsel, in convicting the defendant of one crime, when the facts show that he was guilty, if at all, of another. The facts plainly show the crime to have been committed, and designate with sufficient certainty the defendant as the author. If he did not himself forge the instrument, that is to say, if he was not the material author of the crime of actual forgery, he committed the equivalent crime of presenting the forged paper with the knowledge'of its falsity, for the purpose of avoding the payment of a just debt. He proposed to reap the benefit of a crime which he or some other person committed, and is therefore guilty under article 431 of the Penal Code, which punishes the offense by imprisonment in the penitentiary from one to fourteen years.

There is therefore no error in the judgment of the trial court, and no reason whatever for modifying this sentence, nor do any circumstances of attenuation appear from the record, therefore, the judgment of the District Court should be affirmed and enforced. The judgment of this court will accordingly be so rendered.

Affirmed.

Messrs. Chief Justice Quiñones and Associate Justices Hernández, Figueras and Sulzbacher, concurring.  