
    The People v. Bird.
    Appeal from the District Court of San Juan.
    No. 52.
    Decided February 27, 1904.
    Appeai in Cassation. — In a writing taking- an appeal in cassation, the article of the law which authorizes the same and the laws whieh are alleged to be violated should be cited with precision and clearness.
    Calumnies and Insults to Authority. — When statements contained in an article published in a newspaper are calculated to calumniate, outrage and insult the judges of a court, the erime of calumny and insult to authority prescribed in article 265 of the former Penal Code is committed.
    •Criminal Liability. — The faet that the erime committed by the accused may involve the commission of another crime of a lesser degree, does not constitute ground of acquittal of the erime with which the accused is charged.
    Jury Trial — Felony and Misdemeanor — Libel.—A jury trial can only be granted in cases of felony, under existing law, and the benefits thereof are not made extensive to eases of libel or any other misdemeanor.
    Id. — If a jury trial is not requested in due time it shall be deemed to have been waived.
    Appeal — Judgment—Errors or Defects of a Technical Character. — In rendering a judgment, the court should not take into consideration errors or defects of a technical character which do not affect the substantial rights of the accused.
    Cassation Foe Error of Procedure. — Errors of procedure which may give rise to an appeal in cassation for error of procedure are errors of a substantial character, and said appeal will only lie in the cases enumerated in articles 911 and 912 of the old Law of Criminal Procedure.
    Aggravating Circumstances. — The commission of a crime by means of the press constitutes an aggravating circumstance according to the old Penal Code.
    Appeal — Errors oe Procedure — Exceptions.—Errors of procedure which have not been duly excepted to cannot be considered on appeal.
    The facts are stated in the opinion.
    
      Mr. Guzmán Benitez (Juan), for appellant.
    
      Mr. del Toro, Fiscal, for respondent.
   Mr. Justice MacLeary

delivered the opinion of the court.

There appeared, on the 13th day of February, 1902, printed in ‘ ‘ The San Juan News, ’ ’ a paper published in the capital city of Porto Bieo, and of which Hobart S. Bird is designated therein as editor and proprietor, the following leading editorial, to wit:

“The Palmee INCIDENT.
“In this issue we print an open letter by Mr. Santiago Palmer, the distinguished and respected notary and lawyer, in which he shows the contemptible and cowardly manner in which the San Juan District Court attempted to use its official power to stain the honor and reputation of such an unimpeachable and lofty character as that gentleman.
“Among the native people of Porto Bieo the character of the man who was so unjustly attacked and the character of the president of the court, Judge Bamos, the chief mover and leading spirit in all of the iniquitous schemes and devices instituted and carried into practice by that court, are well known, but others, Americans and foreigners, cannot so easily distinguish between the good and the bad in the Porto Biean ranks.
“It is in this way that it becomes necessary, as Mr. Palmer says, to publicly make an explanation of the disgraceful conduct of the district court, which resulted in his conviction in the lower tribunal for ‘temporary imprudence,’ but which conviction was promptly reversed by the Supreme Court.'
“And so we have judges on the bench so overflowing with political animosity, so blinded with an unnatural desire to wreck their poliical opponents, and to emulate their political friends, that no sacrifice of justice or law or right is too great to accomplish their nefarious schemes.
“Stop to consider, fair reader, what these unredeemable rascals have been conniving together for, Republican officials in high positions of dignity who are not only corrupt in public office, but immoral and indecent in private life, dare to charge and convict as criminal a citizen who cannot be classed with them, for he is beyond reproach.
“Using this trumped-up charge as a battle club for political purposes, prepared and initiated by the Republicans themselves, who are not fit to associate with the accused, members of the party approach the executive mansion and deplore to the Governor and other officials that such scandals should exist.
“This is why his name was scandalized. He acted as the notary, and certified that a certain document was signed in his presence, which was true. Later it turns out that the persons signing the document made false representations and deceived the notary as to their true identity.
“Upon such a flimsy pretense as this, a charge was brought against the notary, and the court convicted him of ‘temporary imprudence’ in not detecting the fraud, and for this, sentenced him to serve a term in prison. Upon appeal, of course, the case was reversed and Mr. Palmer was declared guiltless.
“The only way that such disgraceful occurrences can be checked is by a thorough renovation of the judiciary, and a prompt dismissal from office of such men as Ramos and Rossy in particular.”

Steps were immediately taken by the proper authorities to prosecute the editor and proprietor of the newspaper for this publication, under the Spanish Penal Code then in force, the offense being designated therein as “injurias y calum-nias” (injuries and calumnies).

After the usual investigation before the municipal judge, the Fiscal of the District Court, on the 8th of March, 1902, presented a formal information against the defendant, which is called, under the Code, a “provisional accusation.”

The District Court of San Jnan against whom this editorial article was directed was, at the time of publication, composed of Hon. Juan E. Eamos, Hon. Juan Morera y Martinez and Hon. José E. F. Savage. Later Judge Savage resigned, and Judge Eamos and Morera declined to sit in the case, alleging that they had an interest in the result. Hon. Henry F. Hord was appointed to succeed Judge Savage, and qualified in May, 1902, taking charge of the case. Judge Ea-mos afterwards resigned, and Hon. Juan J. Pera was appointed in his place. Hon. Juan Hernández López' was appointed as a special judge to sit in the place of Judge Morera, who deemed himself to be disqualified.

The case came on for trial on the 19th day of September, 1902, and the court, after proper consideration, unanimously sentenced the accused, as the author of the crime of injury and calumny against authority, made in writing, and with publicity, to the penalty of four months and one day of imprisonment, to be served in the public jail of the city of San Juan, and to be suspended from all offices and the right of suffrage during the time of his condemnation, and to the payment of costs.

From this judgment the defendant in due time took an appeal to the Supreme Court of Porto Eico, and on the 15th day of June, 1903, after much discussion on the part of lawyers pro and con, a judgment was rendered by this .court reversing the judgment of the district court, and remanding the case for new trial. The decision of the Supreme Court was founded upon irregularities in the proceedings, three of the justices holding that the fact that no proper notice had been given to the defendant of the appointment of the special judge, Hernandez, was a sufficiently grave violation of the law to annul the judgment, and two of the jhstices holding that Special Judge Hernández had not been properly appointed, not having been nominated by the Governor and confirmed by the Executive Council, and that on that account the judgment was irregular and should be reversed; but all agreeing in remanding the case to the district court for a new trial in accordance with law.

When the case was again brought before the district court, that body was composed of the Hon. Morera'Martinez, Hon. Prank H. Richmond, and Hon. José Soto. Judge Morera again recusing himself, Señor Angel García Yeve, who is the special district judge regularly constituted by holding an appointment from the Governor as such, took his place upon the bench for the trial of this case.

On the 1st day of October, 1903, the defendant cited to appear before the court in order to plead to the accusation brought against him, and that a day might be set for the trial. In the order requiring this it is stated that a new law of criminal procedure has been in force since the 1st of July, 1902, but no proceedings seem to have been taken under that law, except the arraignment, pleading not guilty and setting the day for trial, which are substantially the same formalities practiced under the prior Code of Criminal Procedure, and General Order No. 223 of December 23, 1899.

The order referred to, omitting the introductory words and the formal signatures, reads as follows:

“Finding: That the Supreme Court annulled the sentence pronounced in this case, and all the proceedings taken after the accusation of the Fiscal, and ordered a new trial, in accordance with the law.
“Finding: that a new law of procedure is in force, beginning the 1st of July, 1902, and after the hearing of this case. “Let the accused, Bird, he notified so that he may appear before the court on tbe 12th day of the current month at nine o’clock a. m. to hear read the accusation of the Fiscal (provisional conclusions), in accordance with the law in force and to set a day for the trial. ’ ’

Accordingly the accused appeared, was arraigned, refused to have counsel appointed for him and pleaded not guilty; and the case was set down to be tried on the 20th day of the current month, eight days later.

On the 19th of October, 1903, Mr. Juan de Guzmán Beni-tez appeared as attorney for the defendant, Bird, and filed a pleading in his behalf in the nature of a motion, claiming a jury trial and setting forth the reasons why the defendant had not demanded the jury, according to the requirements of the statute, on or before the day of his arraignment. On the 20th of October the court took into consideration this plea of the defendant, and all the statutes to which it referred, and the same was in all parts overruled. Thereupon the defendant presented a motion to quash the indictment, which was in turn overruled by the court, and the trial proceeded, the Fiscal offering evidence to prove the accusation. The defendant offered no evidence in his own behalf, and the court proceeded in accordance with the old code to vote upon the case, finding the defendant guilty according to the information and sentencing him to two months and one day of imprisonment, as demanded by the Fiscal, and to the payment of all costs.

As this punishment is a reduction of that imposed by the court on the first trial it may be observed that on the first trial in the district court the defendant was convicted and sentenced to four months and one day of imprisonment; the private prosecutor appearing and moving the court to increase the punishment demanded by the Fiscal in his provisional accusation. On the second trial the private prosecutor failed to appear and the trial was conducted and concluded on the provisional accusation of the Fiscal alone, who only demand•ed a punishment of two months 'and one day. , The increase was made on the first trial on the ground of aggravating circumstances, which do not seem to have been alleged on the second trial. The punishment appears to have been quite mild and as low as any guilty man could hope to obtain. No complaint is made of any exaggeration in this respect.

From this judgment of the district court against him the defendant, Bird, prosecuted his appeal in proper form to this ■court on the 24th of October, 1903. Counsel bases his appeal on the second paragraph of article 912 of the Spanish Code of Criminal Procedure, alleging that the district court in its .judgment had not decided all the points which had been made in his defense. He further alleged a breach of the old Law of Criminal Procedure, alleging that the district court in its 1, and article 849, paragraph 1, and article 850, and the last paragraph of article 853, taken in connection with paragraph ■8 of article 848, in respect to the order dictated by the court on his first motion, presented on behalf of the defendant at the trial, alleging all of these to be provisions of the said Code of Criminal Procedure.

These articles provide for appeals in final judgments when the court has made an error in the classification of the ■crime, and mention other matters which have no relation to, this case and which were afterwards abandoned by the pleadings filed in this court. It seems to have been the custom in matters of cassation to mention every section of the law which could possibly relate to the subject, out of abundant caution, because of the statutory rule that unless the particular title and section of the statute violated was pointed out the court would disregard the alleged error. (See Code of Criminal Procedure, art. 874.) This ancient practice appears to have been followed in taking this appeal.

In the meantime habeas corpus proceedings intervened on the ground that defendant was denied an appeal not having been convicted of a felony, and he had been sent at once to jail. On the trial of the habeas corpus case the defendant was liberated by order of this court on the ground that he had a right to take an appeal from the judgment rendered by the district court in his case, notwithstanding that.it was only a misdemeanor, inasmuch as the new law denying appeals in? misdemeanors, which was passed by the Legislature on the' 1st day of March, 1902, and known as the Code- of Criminal Procedure, did not apply to acts committed prior thereto, to-the prejudice of any defendant’s substantial rights. Accordingly the appeal was admitted.

On the 23d of November, 1903, the record in the case was sent from the district court to the Supreme Court, and on the 30th of that month the appellant appeared herein by his counsel, Mr. Juan de G-uzmán Benitez. The People of Porto Eico were also represented by the Fiscal. On the 14th of December, 1903, counsel for the appellant filed a pleading in his behalf setting out at length the grounds on which he bases his appeal, which are substantially as follows:

1. That the phrases in the article published in the newspaper and of which complaint is made do not constitute the crime prescribed and punished in article 265 of the old Penal Code; that is to say, of calumny, injury, and insult to public authority, to wit, the District Court of San Juan, as is alleged in the accusation of the Fiscal (district attorney) and in the judgment of the court.
2. That the district court erred in refusing the defendant a trial by jury in accordance with his demand made through counsel on the 19th of October.

These are the only grounds alleged by appellant for asking a reversal of the judgment. Prom all that appears in the record, the defendant was not denied any other right which he claimed, or to which he conld possibly be entitled, either under the old or the new Code of Criminal Procedure.

Article 265 of the old Penal Code, under which this prosecution was conducted, reads as follows:

“Those who, while a minister of the Crown or an authority is in the exercise of his functions or on the occasion thereof, shall calumniate, outrage, or insult him by deed or word, outside his presence, or in a writing not addressed to him, shall be punished with the penalty of arresto mayor” (greater imprisonment).

The public wrong which the statute was designed to remedy was certainly accomplished; and the offensive article was clearly designed to bring a court of justice into disrepute among the people whose rights and liberties are subject to its adjudication, tending thus to a subversion of authority. It is difficult to see how any reasonable person, not personally interested, can read the editorial article complained of and not find it to fall within the provisions of this statute. (See the case of Miguel Vives' Deyá, decided on the 23d of May 1895, and reported in 54 Criminal Jurisprudence, 615.) The language therein contained is certainly calculated to calumniate, outrage and insult the judges of the District Court of San Juan, and the fact that the editorial itself refers' to a letter appearing in the same issue, does not detract in any way from its offensive character. Nor are the charges so general in their character as to take .them outside of the terms of the statute. It may be that the offense imputed to the defendant also includes that of disrespect to the court set forth in the fifth paragraph of article 597 of the same Code, for which a lighter punishment is prescribed, but that does not alter the criminality of the act charged against the defendant. He may well be considered as guilty of both the crimes denounced by the law though he can only be convicted of the one with which lie is charged. In the same way murder includes a simple assault, hut no one for that reason can claim to be prosecuted for the lesser and exonerated from the greater offense.

In regard to refusing the defendant a trial by jury,' it is sufficient to say that in the jury law it is only cases involving felonies, for which the punishment prescribed is capital or imprisonment in the penitentiary, which may be tried before a jury. No one has the right to be tried by a jury when charged with a misdemeanor only, and the mere fact that section 246 of the new Penal Code and section 264 of the new Code of Criminal Procedure specify that in all cases of libel the jury shall determine the law and the fact, does not militate against the former law, nor even contradict it, because it is merely announced therein that whenever a jury may be provided for or allowed in a libel ease, they shall “have the right to determine the law and the fact. ’ ’ The benefits of the jury law have not yet been extended to cases of libel or any other misdemeanor. If this crime should at any time be made a felony, then such cases could be tried before a jury. But now the circumstance that libels under the Penal Code are not felonies precludes a defendant charged with libel from having a jury trial. It is for this and other reasons unnecessary to discuss the question of whether calumnia, injuria, and insulto are terms of the ancient code which correspond with libel in the modern code. But there is a great difference between the crimes, which could be readily shown if a discussion should be pursued.

Moreover, it has been well said in argument by the Fiscal that, even if the defendant had been entitled to a jury, he waived his right and lost his opportunity of demanding one by not insisting on it at the proper time. However, in the view that we take of this case neither this fact nor the argument founded thereon is material.

The duty of this court on the trial of criminal appeals under the modern law is set out ip, section 362 of the new Code of Criminal Procedure, which reads as follows:

“Section 362. — After bearing the appeal, the Supreme Court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties. ’ ’

This section is identical with section 1258 of the Penal Code of California, which has been construed in numerous cases by the Supreme Court of that State. In the case of the People v. Turley, 50 Cal. 471, the Supreme Court of that State, in construing the section referred to, uses the following language :

“In fact, after attentive consideration of the ingenious and labored argument submitted for the prisoner, we are unable to discover any reason why we should disturb the judgment rendered in this ease. By the provisions of he Penal Code (sec. 1258), we must give judgment without regard to technical errors or defects, or exceptions, which do not affect the substantial rights of the parties. We are satisfied that no substantial right of the prisoner has been interfered with in the trial which has been had.”

An error in procedure committed by the trial court does not justify a reversal of the judgment unless it produced an injury to the substantial rights of the defendant; and the burden of showing such an injury is placed upon his shoulders. (People v. Murbach, 54 Cal. 370; Bernet, Ex parte, 62 Cal. 524; People v. Smith, 59 Cal. 608; People v. Nelson, 56 Cal. 77; People v. Turley, 50 Cal. 469; People v. Brotherton, 47 Cal. 404.)

And, moreover, according to the Spanish Law of Criminal Procedure, which was in full force as to all acts committed prior to the 1st day of July, 1902, the errors or defects in procedure may give occasion for an appeal in cassation for breach of form, and said errors are by their terms comprised in articles 911 and 912 of said Law, a simple reading of the same being sufficient in order to enable one to understand that such errors must he substantial ones, such as the refusal to hear evidence, or the omission of the citation for trial; among which cases may be comprised all of those that are enumerated in article 911; those of the following article deserving the same classification of substantial ones, and that an appeal in cassation for breach of form only lay in the cases mentioned in the two articles cited, was declared by the Supreme Court of Madrid, among other decisions, in that of the case of Bomán Alvarez Lorenzo, decided on the 22d of May, 1895, and reported in 54 Criminal Jurisprudence, 620. Thus it is seen that the American and Spanish jurisprudence substantially agree in these particulars.

Accordingly, following the ancient Code of Criminal Procedure, under which this case is properly considered, the offense charged having taken place prior to the 1st of July, 1902, nothing could be considered on behalf of the appellant except the two points set forth in the pleading filed by his counsel in this court on the 14th of December, 1903, and here-inbefore substantially set out.

Article No. 874 of the Spanish Code of Criminal Procedure in its first paragraph reads:

‘ ‘ This appeal shall be interposed in writing signed by an attorney and solicitor having authority by virtue of a sufficient power, a promise to1 present it not being admitted in any ease, and there shall be stated in said instrument, in numbered paragraphs, with the greatest clearness and conciseness, the grounds therefor; the article of the law authorizing it and the laws which are supposed to have been violated shall be cited.’'

This article clearly confines the Supreme Court to grounds of appeal on which the counsel for appellant relies, and these have been considered carefully in the foregoing discussion.

Then it matters not whether this case may be considered under the ancient law of procedure, or under the modern code; the result is the same. The defendant has no tenable ground on which to base a reversal of the judgment.

No reasonable person can read the record in this case and have the least doubt of the guilt of .the defendant. All controversies have heretofore been on questions of procedure alone. These are important matters, it is true, and every accused person has a right to insist upon them as the appellant has done. But it may be well to observe in this connection that the appellant in this case has been twice tried by the district court, and it so happens that the court was composed of three different judges on each occasion. He was found guilty on both trials, and on the first was sentenced to four months and one day imprisonment, and on the second to two months and one day. The first judgment was reversed by the Supreme Court, the five justices thereof concurring, solely on technical grounds, and this case is on a similar question again before this court on appeal. In this case the defendant has had his punishment fixed for being guilty of the crime of calumnies and injuries, as defined in article 265 of the Spanish Penal Code, and he has thereby become liable to the punishment of greater imprisonment, the duration of which is from one month and one day to six months, in accordance with article 27. And as the crime was committed through the press, which in the present case constitutes an aggravating circumstance of criminal responsibility, prescribed in the sixth paragraph of article 10, it is clear that the punishment could having been imposed on the accused in its maximum degree, in accordance with the third subdivision of article 80, which, maximum degree, within prudent judicial discretion, is from four months and one day to six months, in accordance ‘with the demonstrative table set forth in article 95 of the same Code. However, as the appeal has been taken by Bird, the defendant, and not by the Fiscal (district attorney), the situation of the appellant should not be made more serious by the imposition of a greater punishment than that which has been adjudged by the trial court, even if this court should be deemed to be authorized to increase the penalty fixed by the court below.

It is well established in criminal trials, by the jurisprudence. applying above, and by the new code as well as by the old, that a defendant in a misdemeanor case, such as the one at bar, cannot claim a reversal of the judgment on the ground of mere irregularities of which no complaint was made at the time, and to which no exception was taken and none presented to this court. Notwithstanding this, in accordance with the new law governing this court in cases of appeal, we have carefully examined the whole record in order to ascertain if there might be any question of law or of fact beneficial to the accused on which a reversal could be predicated. Such search has been fruitless. The record shows no instance in which any right or privilege of the accused has been violated, and there is no proceeding whatever of which he can reasonably complain.

Although the appeal is not based on the first paragraph of article 912 of the Spanish Law of Criminal Procedure, nor would the same lie on such grounds, yet it may be understood from the sentence with sufficient clearness and precision what were the facts which the trial court deemed proven, even though not expressed affirknatively and conclusively.

Inasmuch as no material error has been committed by the district court to the prejudice of the appellant, in the trial of this case, and the judgment rendered against him is just and correct in every particular, the same should be affirmed, with costs; which will he accordingly done. It is so decided.

Chief Justice Quiñones and Justices Hernández and Fi-gueras concurred.

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