
    The People v. Ortiz Et Al.
    Appeal from the District Court of Mayagiiez.
    No. 24.
    Decided December 4, 1903.
    Verdict — Sentence.—A judgment is based upon the verdict of the jury and not upon the findings of facts made by the judge.
    Id. — Sufficiency oe the Evidence to Support a'Verdict — Bill oe Exceptions. — The appellate court will not consider the sufficiency of the evidence to support a verdict unless the same is set forth in a bill of exceptions as prescribed by law.
    Id. — Co-Dependant as a Witness eor the Prosecution. — The court may on motion of the Fiscal, at any time before the accused have gone into their defense, direct any defendant to be discharged that he may be a witness for the prosecution.
    In. — Speedy Trial. — Where an interval of one hundred and fifty-one days has elapsed between the filing of the information and the conviction, and a mistrial has occurred in the meantime, the defendant cannot insist that he has been denied the benefit of a speedy and impartial trial.
    Id. — Motion eor Continuance — Absence oe Counsel. —No error is committed by the trial court in overruling a motion for a continuance upon the ground of the absence of counsel, when it is shown that defendant was duly provided with counsel upon the trial and that his case was properly’ submitted to the jury.
    Id.- — -Chanse oe Venue. — A motion for a change of venue must be sworn to by the defendant, and the fact that a former jury failed to agree upon the verdict is not sufficient’’ground for the granting pf a change of venue.
    
      The facts are stated in the opinion.
    
      Mr. Juan R. Ramos, for appellant.
    
      Mr. del Toro, Fiscal, for respondent.
   Mr. Justice Hernández

delivered the following opinion of the court:

The case submitted to the decision of this Supreme Court is an appeal taken by José Ortiz Llauger, Rodolfo Lara, Natalio Yañez, and Rafael Gutierrez, alias “Quirico,” from the judgment rendered by the District Court of Mayagüez, in a trial by jury, sentencing each of them to ten years of imprisonment in the penitentiary at hard labor, said sentence to be served in the departmental penitentiary of this Island, and each to pay one-fourth the costs of the proceedings. The appellants, together with Virgilio López Agostini, were charged, on the 26th of November, 1902, by the Fiscal of the District of Mayagüez, with the crime of murder in the first degree, committed as follows:

“The aforesaid José Ortiz, .Rafael A. Gutierrez, alias 'Quirico,’ Rodolfo Lara, Natalio Yañez and Virgilio López Agostini, during the early hours of the night of the 7th of November, A. D. 1902, in the aforementioned district, and in that part of the district known and designated as the municipal district of Mayagüez, by means of violence and with the use of weapons, did knowingly, intentionally and deliberately, with malice aforethought, kill one Juan Cardona Quiles, on or near the highway leading from the city of Mayagüez, Porto Rico, to the town of Añasco; and the aforesaid José Ortiz, Rafael A. Gutierrez, alias 'Quirico,’ Rodolfo Lara, Natalio Yañez and Virgilio López Agostini, did, in the manner above stated, intentionally and with deliberate and premeditated malice, kill and murder the aforesaid Juan Cardona Quiles, and w7ere the cause of such death and murder, contrary to the form, force and effect of the law in such case made and provided, and against the peace and dignity of the’People of Porto Rico.”

On the same day the defendants were arraigned and pleaded not guilty, and two days thereafter, their counsel, Attorney Pascasio Fajardo, demurred to the information as coming under paragraph 1 of section 153 of the Code of Criminal Procedure, inasmuch as the acts constituting the offense were not stated with due clearness, which demurrer was overruled by the Mayagüez court. After the case had been heard by a jury, who failed to agree upon a verdict, Herbert E. Smith, Esq., on behalf of Virgilio López Agostini, requested, under date of January 12, 1903, that his client be tried separately from the other defendants, which request was denied because he had not availed himself of this right in due time. On April 15 Juan R. Ramos, counsel for the defendants, Ortiz and Lasra, made a motion for a change of venue to another district, on the ground that a fair and impartial trial could not be had In the Mayagüez court, inasmuch as a jury trial had been held there without reaching a final result, and everybody knew the facts and the evidence and was probably prejudiced, which motion was denied because the same had not been sworn to. The 27th of the said month of April having been set for the second trial, said Attorney Ramos, on behalf of the same defendants» prayed that the appointment of said date be left without effect, and a day subsequent to the 5th of May following be set, in consideration of the fact that on April 27 and 29, and May 5, he had criminal cases on appeal in this Supreme Court, two of which were of a serious character, it being thus impossible for him to be in Mayagüez on April 27. An order issued denying said request and directing that the defendants appoint another lawyer to represent and defend them, they being advised that if they failed to do so, the appointment would be made by the court. The jury was impaneled, and José Ortiz Llauger being represented by Enrique Lloreda Casabó, Rodolfo Lara by Victor Prime Martínez, Natalio Yáñez by José Ramón Freyre, Rafael A. Gutierrez by Herbert E. Smith, and Virgilio López Agostini by Salvador Mestre Caparrós, the trial was proceeded with. The evidence offered by the Fiscal was taken, and before beginning with the evidence of the defense, he requested that the information against Virgilio López Agostini be dismissed in order that he might become a witness for the People, said defendant being accordingly discharged by the court. After all the evidence was heard, the jury returned a verdict finding the defendants guilty of voluntary manslaughter, whereupon the court pronounced sentence, which, literally transcribed, reads as follows:

“ Sentence.- — -In this cause for the crime of murder in the first degree, based upon a sworn information filed in this court by the Fiscal of the district and tried by a jury, the following facts were proven : 1. That on the evening of November 6, 1902, the individuals, Juan Cardona Quiles and José Padró Quiles, arrived in this city from San Sebastián, for the purpose of testifying before the Fiscal of this district in a ease prosecuted against José Ortiz Llauger, one of the defendants herein, at that time a corporal of the Insular Police, stationed in said town of San Sebastián. 2. That on the following day, November 7, in response to the summons of the Fiscal, said Cardona Quiles and Padró Quiles appeared before that official and gave their testimony. 3. That when leaving the court they were searched by Rodolfo Lara, another of the defendants, at that time a corporal of the municipal police, who under the pretext of having found a razor on his person, arrested Quiles Cardona and took him to the police station. 4. That on the evening of said November 7, Cardona Quiles having been discharged, he and Padró Quiles went to an eating-house, where they took some food, and fearing that the persecution of which they were the object might continue, because of the testimony Cardona Quiles gave against the defendant, José Ortiz, they decided to leave this city that very night, so as to sleep in Añasco, where they thought they would be secure from further molestation. 5. That acting upon tins determination, they at the close of the evening, when night was approaching, set out for Añasco on their horses. 6. That the defendants, after coming to an understanding, decided to start in pursuit of both the aforesaid individuals, and for that purpose Virgilio López Agostini, Rafael Gutierrez, alias ‘Quirico,’ and José Ortiz Llauger, took a coach driven by Federico Cintron, alias ‘Don Quico,’ and after driving twice in the direction of the Balboa bridge of this city, ordered the coachman to proceed to the Añasco highway. The other two defendants, Natalio Yáñez and Rodolfo Lara, took another coach, driven by Américo Benitez, and after going through some of the streets of this city, ordered the coachman to drive them in the direction of Añasco. 7. In front of the first road laborer’s house on the outskirts of this city on the Añasco highway, the coach driven by Amé. rico Benitez overtook and passed the one driven by Federico Cintrón, alias ‘Don Quico,’ and close by a culvert on said road they saw Juan Cardona Quiles and José Padró Quiles, who were quietly and peacefully traveling on horses towards Añasco. 8. Both coaches passed by them, and when near the bridge over the brook known as ‘Quebrada de Oro,’ crossing said Añasco road, the passengers in Américo Benitez’s coach ordered him to turn back, which the other coachman also did at the request of those who were in his coach. 9. Both coaches having now turned back in the direction of this city, one being at a short distance from the other, at about 50 meters, more or less, from aforesaid ‘Quebrada de Oro,’ they met said horsemen, when the passengers jumped from both coaches and attacked them, a fight following between them in which the defendant Rafael Gutierrez, ‘Quirico,’ received three wounds caused by a pointed weapon, one in his wrist, another in the iliac region and another in the calf of his leg, and in the affray a revolver was fired the bullet of which pierced the heart, of Juan Cardona Quiles, who was instantly killed, and it has been impossible to determine which of the defendants fired the shot. The Fiscal, availing himself of the power conferred upon him by section 239 of the Code of Criminal Procedure, and with the approval of the presiding judge, dismissed the information against the defendant Virgilio López Agostini in order that he might become a witness for the prosecution, whereupon he was discharged, and therefore could not again be prosecuted for the same offense, as provided by section 241 of aforesaid Code. The jury after deliberating returned a verdict finding the other four defendants guilty of voluntary manslaughter, and accordingly the presiding judge, in view of section 203, paragraph 1, and section 204, of the Penal Code, and the aggravating circumstances surrounding the commission of the crime, sentenced the defendants José Ortiz Llau-ger, Rodolfo Lara, Natalio Yáñez, and Rafael Gutierrez, alias ‘Quirico,’ to ten years of imprisonment in the penitentiary at hard labor, said sentence to be served in the departmental prison of this Island and each to pay one-fourth of the costs of the proceedings. Mayagüez May 1, 1902. — J. A. Erwin.”

Fron this sentence the counsel for José Ortiz Llauger and Rodolfo Lara took an appeal, based, upon the following grounds, to wit:

1. That defendants were without means of defense, because counsel having been appointed-for them at the trial, they were unable to prepare and introduce their evidence on account of the lack of time for the summoning of witnesses. 2. Refusal to allow a change of venue to another court, it being impossible to obtain an impartial verdict in Mayagüez, as the facts were known there. 3. Refusal to continue the trial in view of the fact that it was impossible for the counsel chosen by said defendants to be present at the trial.

The defendants Yañez and Gutiérrez also took an appeal through their respective counsel, without making any alie-gation in opposition to the sentence rendered. The appeals were allowed and the proper certified copies of the record of the trial, containing a statement of the facts herein set forth, were sent up to this Supreme Court, and it is to be noted that a statement or -specification of the evidence introduced in each case does not appear in said record, nor is there any hill of exceptions. The proper procedure having been followed in these appeals, Juan R. Ramos, Esq., on behalf of all the appellants, perfected said appeals before this Supreme Court, attacking the findings of fact made by the court, and alleging the following violations of law:

■ 1. Violation of section. 7 of the Code of Criminal Procedure, inasmuch .as the Fiscal had compelled the coachman, Federico Cintrón Benitez, and Virgilio López Agostini to testify against themselves and against the other defendants, under threat of prosecution .and promising to exclude them from the information if they acceded to his proposition; section 239 being also violated, because the information against López Agostini was dismissed after the defendants had already entered upon their defense. 2. Section 11 of the same Code, because the defendants did not have a speedy trial, nor had they been defended by the counsel of their own choice, nor been allowed time to produce witnesses in their behalf. 3. Section 171, first paragraph, because the motion of the defendants for a change of venue to another court was denied notwithstanding the same bad been made in writing and signed by the attorney representing them and by the defendants themselves, who promised to swear to the petition before the court which should have summoned them forthwith to appear for that purpose. 4. Section 203 of the Penal Code, in classifying as voluntary manslaughter the crime for which defendants were prosecuted, because after a verdict of guilty by the jury, judgment of conviction is rendered against five men, who, as stated in said judgment, entered into a plot for the purpose of committing a crime, chose the nighttime, and started in pursuit of the victim, waylaid him, the fight taking place resulting in his death, while it is not known which of them is responsible for the killing, because it is not known who was the one who fired the shot, all of which circunstances might warrant the classification of the crime as murder in any of the degrees thereof, were it not also declared in the judgment that Eafael Gutiérrez had been wounded with a pointed weapon which must have happened before Cardona Quiles received the shot that ■caused his death; whence it is to be inferred that there was defense, which .brought about a mere homicide which could not have been committed by all the defendants, and there can be no doubt that if the wounded man, Gutié-rrez, was the one who did the hilling, he acted in self-defense, and if the hill-ing was the work of any of the other defendants, it is clear that there exists the well defined extenuating circumstance of his having acted in defense of his companion, in ease he should not be considered to have acted also in self-defense, for Gutiérrez being disabled, the one who fired the shot upon Cardo-na Quiles may have been attached by the latter.

The Fiscal contested the appeal and requested that it be dismissed, with costs against the appellants. Upon an examination of the grounds alleged for the appeal, it is apparent that there is no good reason for attacking the findings, of fact made by the trial judge, inasmuch as the judgment is based upon the verdict of the jury, and not upon the findings of fact made by the judge, so much so, that said judge need not depend for his judgment upon anything beyond the verdict of the jury. That the verdict must be considered as the result of the evidence taken at the trial, and it is incumbent upon counsel for the defendants, in case he wishes to attack the conclusions drawn from a consideration of the evidence, to file the proper bill of exceptions in the manner prescribed by law in order to show that the verdict is contrary to the evidence. This Supreme Court being unacquainted with the details of the evidence taken at the trial, since no bill of exceptions has been presented, is not in a position to determine whether any contradiction exists between the evidence and the judgment rendered by reason of the verdict of the jury. Nor has there been any violation of sections 7 and 239 of the Code of Criminal Procedure, because in the certified copy of the record of the trial now before us, it does not appear that Federico Cintrón Benitez and Virgilio López Agostini were compelled to testify against themselves; and as to López Agostini, it appears that in order that he might be a witness for the People on motion of the Fiscal the information was dismissed, not improperly in point of time, as alleged, but in due time, that is to say, before the defendants had entered upon their defense.

The appellants cannot complain that they have not had a speedy and public trial or that they have been deprived of their right of defense, in violation of section 11 of the Code of Criminal Procedure; for the crime having been committed on November 7 of last year, the information was presented on the 26th of the same month, and if the trial by jury took place on the 27th of April last this was because they had previously been tried by a jury which could not agree upon a verdict; nor is there the slightest indication in the record that they were deprived of any means of defense, for although counsel for Ortiz Llauger and Rodolfo Lara had requested a continuance of the trial because he had to attend to other causes in this city, the court denied said request, and Ortiz and Lara having been provided with counsel, the trial was proceeded with under their direction and it does not appear that any evidence offered by them was refused, for which reason neither these nor the other defendants can allege that they have been deprived of the means of defense. The motion of defendants Ortiz and Lara for a change-of venue to another court was properly overruled, for aside from the fact that the motion had not been properly sworn to, the grounds upon which the same was based were not sufficient to warrant the granting thereof. So it was understood by the court, and if the reasons urged for the change of venue requested were to be accepted, all causes wherein a new trial by jury is had would have to be removed to a different district from the one in which it was first* tried. As to the violation of section 203 of the Penal Code, in the sense said violation is explained, namely, because the fact that Gutiérrez had acted in self-defense, and the others in defense of Gutiérrez, if not in their own, should have been considered an extenuating circumstance, or one exempting them from criminal responsibility, the record of the trial, as it appears from the terms in which the same has been drawn, does not show any ground justifying the allegations made, nor has any bill of exceptions been presented in support thereof as prescribed by law.

■ In view of the reasons aboye set forth, all of the grounds of the appeal should be dismissed; and inasmuch as upon examination of the record no violation of law is found, the judgment rendered by the court of Mayagüez,' on May 1 of last year, should be affirmed and enforced.

Affirmed.

Chief Justice Quiñones, and Justices Sulzbacher and Mac-Leary concurred.

Mr. Justice Figueras did not sit at the hearing of this case.  