
    The People of Puerto Rico, Plaintiff and Appellee, v. Joaquín Pérez, Defendant and Appellant.
    No. 5557.
    Argued December 19, 1934.
    Decided June 24, 1935.
    
      E. Martinez Aviles for appellant. B. A. Gómez, Prosecuting Attorney,, and Luis Janer, Assistant Prosecuting Attorney, for appellee.
   Mr. Justice Hutchison

delivered the opinion of the court.

Joaquín Pérez was convicted of burglary in the first degree alleged to have been committed by entering a house in the1 nighttime with intent to commit rape. María Martinez was-his sweetheart. He had been courting her for more than two-years. His attentions were not unwelcome to her nor to her family. During the earlier part of the night in question he had been calling at the Martinez home and left the house-about 8 o’clock. Maria was the eldest of thirteen unmarried children. Her father, Zoilo Martínez, was at work in another part of the Island. With him was Juan Gaspar, a lad of fifteen. The ages of the other children who were at home-at the time, ranged from two to thirteen years.

The testimony of Maria and of her mother tended to show that Maria was sleeping in a bed with three of her younger sisters and that her mother was sleeping in an adjoining or nearby room with another child or other children; that the-kitchen door and a window in the kitchen were closed but had not been fastened; that a door between the kitchen and the dining room was also closed; that Pérez about 12:00 or 1: 00 o’clock passed through the kitchen and dining room into Maria’s bedroom and was removing her clothing when she-awoke and cried out; that when the mother awoke and appeared on the scene, Pérez was in the doorway between the daughter’s room and the dining room; that the mother also cried out and called to the neighbors; that Pérez confessed his fault, promised to marry the girl in the morning and asked the mother to say nothing to the father.

José Montalvo, a neighbor, son-in-law and tenant of Martinez, who responded to the call of Mrs. Martinez, says that when he reached the Martinez house Pérez was in the sala where he admitted his error, told the mother not to worry and promised to marry the daughter. On cross-examination he said that he was awakened by his wife who had heard the cries from the Martinez house. Later he said he had neard Maria call out to her mother: “Mama, there is a man in here.” And that the mother answered: “Call Pepe,” and witness said: “Don’t worry, I am coming;” and that he heard the cries from the Martinez house after he had been awakened by his wife. The mother also testified that another neighbor, Juan Rodriguez, had come in response to her outcry, but Rodriguez was not produced as a witness.

It was the custom of the Martinez family to sleep with a kerosene lamp burning and the house was not in darkness but dimly lighted. The case was presented to the district attorney the next day after Pérez had refused to marry the girl.

Pérez testified that he usually called early in the evening four or five times a week and on the night in question had made an appointment to return later to meet Maria, who had agreed to leave her home and go away with him; that he kept his appointment and Maria came out of the house through the kitchen window to meet him in the alley; that while they were talking in the alley the mother awoke and called to the neighbors who answered her but did not come over to the Martinez house; that witness and Maria then entered the Martinez house where Mrs. Martinez was weeping on the balcony; that witness told her not to worry; that be would make arrangements tbe next day to marry Maria; that tbe next day be was unable to make tbe contemplated arrangements and later bad promised to marry Maria within two months.

Another witness, 'a nurse employed by tbe municipality, testified that on passing by tbe Martinez bouse on her return from a professional visit about half past eleven, she saw Pérez and Maria in tbe alley between tbe Martinez dwelling and tbe Montalvo bouse.

Tbe foregoing facts suffice to distinguish tbe instant case from People v. Ramírez, 41 P.R.R. 742. Taking as true tbe testimony for tbe prosecution, it is not enough to support a conviction. However reprehensible tbe purpose and conduct of Pérez may have been, tbe surrounding circumstances as a whole, tended to negative rather than to establish an intent to commit rape. His conduct may have been prompted by a desire for sexual intercourse, but there is no evidence of an intent to accomplish bis purpose by tbe use of force or violence. Unless defendant was guilty of intent to commit rape there was, of course, no burglary.

Tbe judgment appealed from must be reversed and tbe defendant discharged.  