
    People, Plaintiff and Appellee, v. Borges, Defendant and Appellant.
    Appeal from the District Court of Aguadilla in a Prosecution for False Representation.
    No. 1109.
    Decided February 8, 1917.
    False Representation — Evidence—New Trial — Doubt.—When there are good grounds for concluding that the district judge rendered a judgment of conviction without properly weighing all of the evidence, a new trial should be granted, especially if the Supreme Court, as in the present case, has grave doubts as to the guilt of the accused.
    The facts are stated in the opinion.
    
      Mr. José D. Rodriguez for the appellant.
    
      Mr. Salvador Mestre, fiscal, for the appellee.
   Me. Justice del T'oro

delivered the opinion of the court.

The district attorney of Aguadilla charged Vicente Borges, Jr., with wilfully collecting money on a check as genuine knowing that it was forged. The defendant pleaded not guilty and upon trial was convicted by the court of the offense of false representation, defined and penalized by section 470 of the Penal Code. The defendant appealed and maintains in this court that the district court erred (1) in overruling his motion for nonsuit; (2) in arriving at conclusions not sustained by the evidence; and (3) in considering it indispensable that he should call Aurelio Cruz as a witness for the defense for the purpose of removing from its mind ■all suspicion that his possession of the cheek was unlawful.

The evidence for the prosecution consisted of the testimony of the following witnesses: (1) Dionisio Ríos, who received the said check from the hands of Vicente Borges, the defendant, and used it to pay for certain commodities for a dance. The balance of the amount of the check was returned to him and he delivered it to the defendant; (2) Ti-moteo Castro, the merchant who sold the goods and received the check. He considered it genuine and passed it to another; (3) Juan González Mercado, who first gave the order to Dio-nisio Ríos for purchasing and paying for the commodities for the dance, but who did not have to do so because the defendant anticipated him; (4) Salvador Barea, treasurer of the Utuado school board, who testified that his signature appearing on the cheek was forged; and (5) Joaquín M. Torres, assistant cashier of the American Colonial Bank of Porto Rico, which finally paid the check and was defrauded of its face value of ten dollars because it was found to be forged.

The evidence for the defense consisted of the testimony of witnesses (1) Manuel del Pino, who testified that Aurelio Cruz asked him to cash a check, but it was not the one shown to him; (2) Juan Pérez, who was present when Aurelio Cruz gave the defendant a cheek for ten dollars so that he might collect therefrom a bill for some jewelry for which Cruz owed him, which the defendant did and returned the balance in cash; and (3) defendant Borges himself, who admitted that he gave the check to Ríos and explained that he had received it from Aurelio Cruz in the manner stated by witness Pérez. The testimony of the defendant is full and detailed. In answer to questions put by the judge, a part of his testimony is as follows:

“Aurelio Cruz lives — I believe he lives in Lares. 1 am sure that lie is living there now. He was living in Lares in March. When I was arrested in Lares and my bail was fixed at $1,000, which was furnished in Lares, I was with Aurelio Cruz in front of the warehouse of Márquez and I told him what had occurred about that check, and he said that, he also had been summoned regarding the cheek and that, according to the public, it was rumored that he had been called upon to testify and required to furnish bail, which I am sure was $1,000 or $300. After I had given bond for $1,000 my bail was reduced to $200, and when I went to speak to him he and his family became very angry and told me that he had not been charged with any responsibility, and I said, ‘Am I to take the responsibility upon myself, then?’ He was angry because he had been held in the matter.”

After tbe evidence bad been examined the court found the defendant guilty and sentenced him to one year’s imprisonment in the district jail. In reviewing the evidence the court said, among other things:

“* * * the defendant had the forged check in his possession and having been given an opportunity to explain his possession of the same, he has failed absolutely to do so in such a way as to dispel all doubt or suspicion that such possession was unlawful, since Aurelio Cruz, the only witness who, upon the defendant’s own statement, was competent to testify on this point, inasmuch as he was the person who. gave him the forged check, as defendant himself admits, did not appear and was not called as a witness by the defense notwithstanding that be lives in Lares, where the defendant lives.”

After giving this case careful and repealed consideration, we reach the eonclnsion that the ends of justice require that the judgment appealed from should be reversed and the case remanded for a new trial.

From that part of the findings of fact made by the trial judge which we have transcribed herein the state of his mind when he rendered the judgment of conviction may be deduced. Fixing his mind on the fact that the defendant liad not offered the testimony of Aurelio' Cruz in evidence, he failed to give due weight to the evidence which was introduced by the defendant, namely, his own testimony and that of witness Juan Pérez. There is no doubt' that it would have been better to have introduced the testimony of Aurelio Cruz at the trial. However, the defendant was not obliged to do so and it might have been done by the fiscal himself. Besides, the action of the defendant in this regard is capable of explanation, which, if not convincing., is at least possibly true, since he could anticipate from the conversation he had with Cruz what the attitude of tile latter would be at the trial and therefore produced the only evidence he had of his interview with Cruz; that is, his own testimony and that of the witness Pérez.

In such circumstances and as there are good grounds for believing that in rendering judgment the lower court did not consider the evidence as a whole, and as this court has grave doubts as to the guilt of the defendant, the judgment appealed from should be reversed and the case remanded for a new trial.

Reversed and remanded for a new trial.

Chief Justice Hernández and Justices Wolf, Aldrey and Hutchison concurred.  