
    People of Porto Rico, Plaintiff and Appellee, v. Domingo Collazo, Defendant and Appellant.
    Nos. 3500, 3501.
    Argued December 6, 1928.
    Decided December 24, 1928.
    
      Pedro E. Anglaide and R. Martínez Nadal for the appellant. Jose E. Figueras for the appellee. ■
   Me. Justice Tbxidoe

delivered the opinion of the court.

These two cases were tried together and the questions submitted for determination are the same.

Domingo Collazo was charged before the Municipal Court of Guayama with sélling alcoholic liquor to a minor and with violating the National Prohibition Act. T,he charges were m.ade in two separate complaints, in which it was alleged that by his clerk and employee, Julio Santana, and in the shop owned by him he sold to the minor Salvador Santiago a pint bottle of rum, an alcoholic beverage. The two cases were tried in that court and' later on appeal in the District Court of Guayiama which found the accused guilty and sentenced him to fifteen days in jail for. selling liquor to the minor and to pay a fine of five hundred dollars and suffer imprisonment for three months for violating the National Prohibition Act.

At,the beginning of the trials in both cases the defendant moved for dismissal under sections 451 and 452 of the Code of Criminal Procedure based on the fact that the lower court had dismissed the two cases on its own motion. The district attorney objected and the court decided to hear the evidence. It was proved that the Municipal Court of Gua-yama took original jurisdiction of the complaints against Domingo Collazo for selling liquor to a minor and for a violation of the Prohibition Act and ordered their dismissal in both cases, but ordering also the presentation of new complaints. This was done and after trial the same court sentenced the defendant to pay a fine of ten dollars on the charge of selling liquor to a minor and to two months in jail and a fine of five hundred dollars for violating the Prohibition Act. The motions to dismiss were overruled and the defendant took an exception.

The evidence was as follows:

Rafael Milán, corporal of Insular Police on duty in Gua-yama, testified that about 9 o’clock at night on June 4, 1927, on Derkes street, Guayama, he surprised the minor Salvador Santiago with a pint bottle of rum; that the witness went later with the internal revenue agent and a policeman and searched the establishment of Domingo Collazo but found no liquor there ; that on another occasion the witness brought a charge against Collazo for unlawfully keeping and selling intoxicating liquors; that he went to search Collazo’s shop an hour after having arrested Salvador Santiago with the liquor.

Salvador Santiago testified that he was fifteen years old; that on June 4, 1927, he saw Domingo Collazo in his shop on Derkes street, Guayama, where he had gone to buy; that he did not buy liquor nor was any bottle taken from him; that be bad testified before tbe municipal judge that be bought a bottle or a half bottle because corporal Milán told him to testify that be bad bought it from Domingo Collazo and bad threatened to beat him, and tbe witness so testified in order not to be on bad terms with tbe corporal. A. declaration was given to him to read and be denied it.

Julio 'Santana, who was a clerk of tbe defendant at tbe time referred to in tbe complaint, testified that on June 4, 1927, be sold to Salvador Santiago a pint bottle of rum for 50 cents; that tbe rum was tbe property of Domingo Collazo; that be kept it in tbe safe and gave tbe -witness tbe key when be asked him for it in order to sell tbe rum which tbe witness was authorized and instructed by Collazo to sell; that Collazo took tbe 50 cents and was present when tbe rum was sold, and that be knew that its sale was against tbe law, but be bad been authorized by Collazo to make it. Tbe defense moved to strike out tbe testimony because it was given by an accomplice. Tbe court overruled tbe motion and tbe defense excepted.

Eafael Milán took tbe stand again in order to identify the bottle taken by him from Santiago. Gumersindo Sánchez, clerk of tbe Municipal Court of Guayama, was called to exhibit tbe judgment against Domingo Collazo in a former case for violation of tbe Prohibition Act. -To tbe same' effect was tbe testimony of Luis P. Camacho, municipal judge of Guayama, and Eafael Milán.testified again that be bad made tbe complaint, in tbe first case.

Several witnesses for tbe defense testified that on the night of June 4, 1927, between eight and nine o’clock no transaction in liquor took place in tbe shop of Collazo. Juan Silva Ocasio, internal revenue agent in Guayama, and Andrés Carire, a policeman, also testified that on June 4 they searched tbe establishment of Domingo Collazo, including the cash register and the safe, and found no rum nor alcohol; that the search was made between 9:30 and 10 p. m. The. defendant testified that he had discharged his clerk, Julio Santana, because he knew that he had sold a pint bottle of rum on information given to him by the marshal.

That was the evidence.

Three errors are now assigned by the appellant. The first refers to the overruling of the motion to dismiss, the second to the refusal to strike out the testimony of Julio Santana and the third to the weighing of the evidence.

The principal question in this appeal is that which refers to the testimony of Julio Santana. This witness said he knew when he sold the pint bottle of rum that he was committing a crime. He is an accomplice, if his testimony is believed. In that case his testimony must be corroborated as. required by section 253 of the Code of Criminal Pro cedure.

“The general rule for determining' whether a witness is an accomplice of the defendant is whether he could be charged with the same offense, for if he can riot, then bje is not an accomplice ....
“An accomplice is one who co-operates or assists in the commission of a crime.”

■That was held by this court in People v. Buxó, 29 P.R.R. 75.

In People v. Martínez, 32 P.R.R. 878, the defendant was acquitted because the evidence which connected him with the crime was the uncorroborated testimony of an accomplice.'

In this jurisdiction the legal doctrine which holds that the uncorroborated testimony of an accomplice is not sufficient for the conviction of a defendant, has always been sustained.

Witness Julio Santana was undoubtedly an accomplice, if his testimony is accepted. He said that he cooperated in the commission of the offense in such a way that he might have been prosecuted, tried and convicted, and his testimony has not been corroborated.

The errors assigned under numbers two and three wére committed by the court. After this it is unnnecessary to consider the first assignment.

The judgment appealed from must he reversed and substituted by another ^acquitting the defendant in both cases.  