
    People, Plaintiff and Appellee, v. Hernández et al., Defendants and Appellants.
    Appeal from the District Court of Aguadilla in a Prosecution for Murder.
    No. 1089.
    Decided July 24, 1917.
    Murder — Degree of Grime — Evidence — Premeditation and Deliberation. — Both the direct and circumstantial evidence in this ease showed that a body badly hacked up and eaten by dogs was found and identified; that the death was due to violence and caused by numerous wounds inflicted with a cane-knife and a dagger; that the defendants, one of whom was the slain man’s son who had left his home with two weapons and returned with one only and with bloodstains on his shirt, which was washed by his mother, were seen carrying the body of the victim by the head and feet, he being helpless and complaining; that they inflicted wounds on the victim with a cane-knife 'and a dagger and later carried the body to the place where it was found; that they then washed their cane-knives at the side of a stream. There was also evidence tending to show that quarrels had occurred between father and son; that other attacks had preceded the one mentioned above; that on the day of the occurrence the victim went out to make some sales, and that the pockets of his trousers were found turned' out. Held: That the foregoing was sufficient evidence to show the deliberation and premeditation necessary to classify the crime as murder in the first and second degrees of which the - defendants were convicted.
    Id. — Instructions to Jury — Exception—Fundamental Error. — A judgment will not be reversed for alleged errors in the instructions to the jury when no exception is taken, unless it clearly appears that a fundamental error was committed.
    Id. — Accomplice.—The mere silence of a man who does not aid or abet and who has no intent to aid the felon does not make him an accomplice.
    The facts are stated in the opinion.
    
      Mr. Juan B. Soto for the appellant.
    
      Mr. Salvador Mestre, fiscal, for the appellee.
   Me. Justice Wole

delivered the opinion of the court.

This is an appeal from a judgment of conviction of two men, José Hernández Pérez, who was convicted of murder in the first degree, and Juan Lailave, of murder in the second degree. Besides proof of the finding of a body badly hacked up and eaten by dogs and the identification of the body as that of the man who in his lifetime had been known as Juan Hernández, father of one of the defendants, an expert gave testimony tending to show, that the said Jnan Hernandez had met a violent death by numerous blows administered on his body and especially on his chest. The principal evidence tending to convict the defendants was the testimony of Jnan Hernández, alias Maneme. He said that on December 7, 1915, he saw José Hernández and Jnan Lallave in the act of carrying the body of Juan Hernández González by the head and feet and that when the witness started to flee, defendant Juan Lallave restrained him, catching him by the neck, calling to the other defendant to kill the said witness. They spared him by reason of his entreaties, but left bim “paralyzed.” That thereupon José Hernández struck Juan Hernández González with his machete and thereafter Juan Lallave struck the victim a blow, and that the said José Hernández struck another blow, the victim being then alive and complaining; that the two defendants laid the body close to the spot where it was found; that they cleaned their machetes at the edge of the stream and left them there; that they terrorized the witness into temporary silence. There was testimony tending to show that the victim was a man of disagreeable character, who lived alone and would have nothing to do- with his family; that on the day of his death he went to market to make small sales -and had a little money in his pocket, and the pockets of his trousers were found turned out. There- was other testimony showing a homicide inasmuch as another youth testified that defendant José Hernández left his home with two weapons and returned with one only and-with stains on his shirt'which the witness said were from blood; and that the mother of the said defendant cleaned a bloody shirt that belonged to said José Hernández. There was clear evidence of numerous blows tending to show that previous to the striking to which Ma-neme testified there were other attacks and that the two men wore carrying their alleged victim in a helpless condition.

Let its consider the sufficiency of the proof to show the deliberation and premeditation to make the crime murder in the first degree. The testimony of Juan Maneme is the most important to show premeditation and deliberation. His testimony is attacked, but he is supported by the wounds on the body. The jury had the right to believe Mm. He is supported,, indeed, in another curious way. Juan Lallave took the stand in his own behalf and testified that Juan Maneme and José Hernández committed the crime, not in the woods where the body was found, but on the farpa of Juan Her-nández, the slain man. The defendant Lallave puts himself in the same relative position to the two alleged perpetrators of the crime that Juan Maneme had already claimed for himself, namely, that of an innocent spectator. But the said defendant had already made a statement to the fiscal wherein absolutely no mention was made of Maneme. There was a conflict between these two men which the jury had a right to decide, and we find there was sufficient evidence for them to do it. We are not satisfied that the motive for the crime was robbery. It may have been a quarrel. There were indications of something like a family feud in the testimony, but the fact of the protruding pockets was a circumstance that the jury had a right to consider to see if a deeper motive was attempted to be-concealed. Nor is it necessary that the motive should clearly appear. Be these things as they may, the continued hacking of the bodjr of Juan Hernández Gon-zález by his son, especially in conjunction with another person, was sufficient proof not only of homicide but of murder. Prom the whole case the proof tends to show that Juan Ma-neme and Juan Lallave were present while José Hernández was hacking the body. There are two witnesses who testified to his participation in the crime.

The instructions are attacked in this case-. On the question of the degree of the crime we find them ample. In other regards they are rather discursive and perhaps, if partly considered, lean a little against the defendants. At least it would be so if it were a question of merely connecting the defendants with a crime without regard to the degree of it. There may be found in the said instrnctions something similar to an assumption that the defendants were the authors' of the death of Juan Hernández González. On the other hand, no exceptions were taken. No complaint was made of the resume made by the court. In the cases of People v. Lebrón, 23 P. R. R. 611, and People v. Barrios, 23 P. R. R. 772, we reviewed the cases and reaffirmed the principle that we would not reverse for alleged errors in the instructions where no exception was taken, unless we were satisfied that a fundamental error was committed, a principle that we again insisted on in the ease of People v. Ramírez de Arellano, ante, p. 243. Here it is the attitude of the judge rather than specific error. But the very instructions before ns show that the attorney for the defendants based his defense principally on the ground that the crime was involuntary manslaughter. Hence we think, .given the atmosphere of the court-room, that the defendants have no right to complain in this court by whatever supposed assumption there was of their connection with the crime, and, as we have seen, the court gave very careful and discriminating instructions on the degree of the crime, and with regard to reasonable doubt they were more favorable than the law requires. Taking the instructions as a whole and being satisfied there was ample proof to convict, we see no reason, in the absence of exceptions, to reverse.

The appellants maintain that Juan Maneme should have been corroborated because he was an accomplice. He was in fact corroborated, but it was not shown or admitted by him that he was an accomplice. The mere silence of a man, who does not aid or abet and who has no intent to aid the felon, does not make him an accomplice. 12 Cyc. 192-193. The proper step for the defendants to take would have been to ask the court for an instruction to the effect that the jury should not credit the uncorroborated testimony of Juan Ma-neme if they believed him to be an accomplice.

As to the identification of the body, this, was sufficiently done by Juan Maneme, Juan Lallave and Wenceslao Gómez. The judgment must be

Affirmed.

Chief Justice Hernández and Justices del Toro and Al-drey concurred.

Mr. Justice Hutchison dissented.  