
    The People of Puerto Rico, Plaintiff and Appellee, v. Rafael Cruz Díaz, Defendant and Appellant.
    No. 8232.
    Argued June 8, 1940.
    Decided June 14, 1940.
    
      
      L. Santiago Carmona for appellant. B. A. Gomes, Prosecuting Attorney, and Luis Negrón Fernández, Assistant Prosecuting Attorney, for appellee.
   Mr. Justice Wolf

delivered the opinion of the court.

After a trial, the appellant, Eafael Cruz Diaz, was convicted of aggravated assault and battery. He appealed and, supported by two affidavits, he asked that the transcript of the evidence and the services of court be supplied to him gratis because he was insolvent. On the day of the motion the appellant failed to appear to argue his case and the court held that the affidavits were insufficient to justify the motion wherein the appellant -prayed to proceed in forma pmi-peris. Appellant filed a motion for reconsideration which was likewise denied. The order or orders of the court denying the right to proceed in forma pauperis are fundamentally based on affidavits containing averments of insolvency and lack of funds.

One only has to look to paragraph 67 of the Bankruptcy Act and 32 C.J. 805, et seq., to see that the word "insolvency” is not the statement of an ultimate fact but is a conclusion of law. A man may be totally insolvent by any definition and still be able to raise tbe funds for tbe administration of a case. Under tbe Bankruptcy Act tbe administration of tbe case is paid ahead of any debtors. Tbe other averments of tbe affidavits were not sufficient to allow tbe court to judge of tbe actual present inability of tbe defendant to pay tbe stenographer’s and tbe court’s costs. We so bold, but if we were in doubt of this matter, tbe discretion of tbe court below should prevail. People v. Lawton 46 P.R.R. 178.

It transpires that on tbe day of tbe bearing tbe stenographer appeared and opposed tbe granting of tbe motion. Tbe appellant complains that be was not notified of tbe opposition of tbe stenographer. Tbe failure to notify defendant was harmless if an inspection of tbe record convinces us that, tbe motion should be denied with or without tbe opposition of tbe stenographer. Tbe appellant filed no affidavit of merits and this failure militates ag'ainst any right that be might have bad to have tbe action of tbe court below reviewed.

For tbe first time, in this court, tbe appellant alleges that the stenographer is bound to supply bis notes without fees. This was settled to tbe contrary in People v. Lawton, supra.

We find no merit in tbe appeal and tbe order of tbe court should be affirmed.

Mr. Chief Justice Del Toro and Mr. Justice De Jesus took no part in tbe decision of this case.  