
    People, Plaintiff and Appellee, v. Rivera, Defendant and Appellant.
    Appeal from the District Court of Humacao in a Prosecution for Violation of Section 93 of .the Penal Code.
    No. 1164.
    Decided July 19, 1917.
    Executive Power — Negligence—Jailer—Prisoner.—A jailer wlio wilfully and negligently allows a prisoner to leave the jail unaccompanied by a guard or policeman fails to comply with his duty and is guilty of a violation of section 93 of the Penal Code.
    The facts are stated in the opinion.
    
      Mr. Manuel F. Bossy for the appellant.
    
      Mr.. Salvador Mestre, fiscal, for the appellee.
   Mr. Justice Wole

delivered the opinion of the court.

In this case it was charged that the appellant, as warden of the jail of G-urabo, permitted various persons, who are named in the information, to go out- of the jail at different hours of the day and night, unaccompanied by any policeman or guard-; in this way failing to perform a duty imposed upon him by law. The appellant filed no brief and hence no assignment of errors is to be found in the record. At the hearing, however, he was represented by counsel, who insisted that the case against the defendant was not proved, mainly because appellant, at'the time of the alleged crime, was ill and unable to attend to his duties. It was also urged that there was no very strict discipline and that as the original jailer was himself temporarily imprisoned, the idea was to have a nominal substitute. However, there was ample proof of the acts charged in the information which purported to be an infraction of section 93 of the Penal Code, as follows:

“Every person bolding a public office who wilfully refuses or neglects to perform the duties thereof, or who violates any .provision of law relating to his duties or the duties of his office, for which some other punishment is not prescribed, is punishable by fine not exceeding five thousand (5,000) dollars, or (by) imprisonment in jail not exceeding one year, or both.”

This statute is very broad and perhaps some literal violations of it could not be penalized, but the particular acts set forth have always • been subject to prosecution. Where a jailer voluntarily or negligently allows a prisoner to go at large he is guilty of a malfeasance in office. 29 Cyc. 1449, title Officers; 35 Cyc. 2006-07, note 71, title Sheriffs and Constables; 16 Cyc., 540 et seq., title Escape. While there are severer penalties fixed in the code for voluntary escape, a negligence of this sort may properly be considered under said section 93. The defense of illness, as the record shows, was presented to the court below, which did not entertain it, but found defendant guilty, as charged, and sentenced him to one year in jail. The evidence shows that the neg■ligence was flagrant and that the prisoners were notoriously at large.

The judgment must be

Affirmed.

Justices del Toro, Aldrey and Hutchison concurred.

Mr. Chief Justice Hernández took no part in the decision of this ease.  