
    Luzunaris v. Pastor.
    Appeal in cassation from the District Court of Humacao.
    No. 64.
    Decided March 3, 1903.
    Divorce. — Although article 19 of G-. O. of March 17, 1899, provides that a divorce can be decreed only in purely civil marriages, inasmuch as section 8 of the “Organic Act” also provides that “all persons lawfully married in Porto Rico shall have all the rights and remedies conferred by law upon parties to either civil or religious marriages,” it is evident that the intention of Congress was to confer upon all persons lawfully married all aforesaid rights and remedies, whether the marriage was performed by the civil authority or according to the rites of the Church.
    Id. — The provisions of article 19 of (4. O. of March 17, 1899, in so far as they have reference merely to civil marriages, are in conflict with said act of Congress, and the terms of said G-. O. should also be applied to religious marriages.
    STATEMENT OE THE CASE.
    On the 20th of March, 1902, Carolina Luzunaris y Dominguez, represented by her counsel, Herminio Diaz Navarro Esq., brought an action in the District Court of Hu-macao against her husband, Ramón Pastor Diaz, in which, among other facts, she alleged that on November 7, 1898, they were married according to the Roman Catholic ritual in the parish of the city of Guay ama, as shown by the certificate. on file; that from that union they had a child named Germán Ignacio, who was born on September 9, 1900, and is living; and that .during the very first week of their marriage and on various other occasions, said Pastor had struck and maltreated her, for which reason she had been obliged to flee from their conjugal home' to escape this bad treatment and seek help and protection in the house of her parents. She invoked as legal grounds, Sections 18, 19, 20, 23 and 25 of the Order of the Secretary of Justice under the Military Government of the Island, dated March 17, 1899, section 8 of the Foraker Act, and rule 63 of General Orders No. 118, Series of 1899, and prayed that final judgment be rendered granting a divorce and dissolving the religious marriage, and that an order he issued to the Municipal Judge of Guayama directing him to inscribe said judgment in the Civil Registry under his charge, and note the inscription thereof on the margin of the marriage entry, with costs against defendant.
    On April 25th of the same year the defendant, through his attorney Luciano Ortiz, answered the complaint acknowledging his marriage to said Carolina Luzunaris, but denying that he had physically maltreated his wife. He alleged that, on the contrary, he had been a faithful and affectionate husband, and charged her with having violently laid hands on him on one occasion and insulted him on another. He therefore prayed that the complaint he dismissed.
    The proceedings of the case having been duly had, during which the testimony of several witnesses was introduced and interrogatories answered by plaintiff' on September 3, 1902, the court rendered judgment sustaining the complaint and accordingly issued a decree granting the divorce prayed for and dissolved the religious marriage contracted by the parties, and at the same time ordered that a writ be served upon the Municipal Judge of Guayama, as the person in chare of the Civil Registry, directing him to enter said judgment, when made final, by copying the same on the margin of the marriage entry, and taxing the costs of the proceedings upon the defendant.
    From this decision the latter took an appeal in cassation for violation of law authorized by paragraphs 78 and 79, of General Orders No. 118, Series of 1899, also included in paragraphs 1 and 7 of article 1690 of the Law of Civil Procedure, and alleging as grounds for the appeal the following, which are quoted from the notice of appeal, to wit:
    
      I.- — In the judgment appealed from an error of law has been committed in the consideration of the evidence introduced, inasmuch as the plaintiff, Carolina Luzunaris, in answering the interrogatory propounded at the hearing confessed that it was true that she had, at different times, violently laid hands on her husband, Ramón Pastor Diaz, and the court, in the fourth, fifth and sixth conclusions places upon said interrogatory a meaning which, according to sound judgment, it did not and could not have, thus by non-application violating article 1232 of the Civil Code in force up to the first day of July last, and article 579 of the Law of Civil Procedure, wherein it is provided that a confession in court shall be considered as absolute proof even though there be additional evidence. Counsel for defendant at the hearing had propounded only one interrogatory, in these words: “State whether it is true that on different occasions you have ill-treated your husband, Don Ramón Pastor Diaz, (Diga como es cierto que en diferentes oca-siones ha maltratado & su esposo Don Ramón Pastor Diaz), and on observing that the question did not' specify the class of ill-treatment, he inserted between the preposition á and the possessive pronoun stt, the word obras, and changed by means of an amendment said preposition á into the preposition de, but forgetting to insert after the word obras another á, since the one written before had been converted into the letter d, as may still be noticed in the writting containing the interrogatory. So then, the purpose of counsel for defendant, clearly stated, and as appears originally written, was to ask the plaintiff whether she had ill-treated her husband on different occasions, and so it was put down. He could not have changed his purpose when, desiring to make the question more specific, he added the word obras, to determine the kind of ill-treatment referred to. Anyone who reads the question put by counsel for defendant to Carolina Luzunaris, at the trial, must notice the absence of said preposition á, but he can have no hesitation or doubt as to the meaning of what is asked, namely, whether the plaintiff had on several occasions laid violent hands on her husband. The question propounded forms a sentence with an active verb ; the subject of the sentence is the person interrogated; the verb is maltratar (to ill-treat) and the object, directly governed by the verb and by the possessive pronoun su (your) ' which refers to the person interrogated and to the noun esposo (husband). What is lacking for the perfect construction of this sentence is the preposition á called for, in this case, by the direct object, su esposo (your husband). Had the purpose been to ask Carolina Luzunaris whether she had been illtreated by her husband, an entirely different construction would have been required because the sentence in that case would have been in the passive, which demanded the presence of the verb ser (to be) while the direct object would have been preceded by the preposition por or de. To be construed in the sense given to it by the court, the queston should have been conceived in the following terms: “Diga cómo es cierto que en diferentes ocasiones fue maltratada de obras por su esposo Don Ramón Pastor Diaz” (State whether it is true that on several occasions you were phisically ill-treated by your husband Ramón Pastor Diaz): If it is desired still more clearly to perceive the meaning and scope of the question, we have but to insert the words “la confesante” (the one who confesses in court) “la decla-rante” (the one who declares or testifies) or “‘usted” (you) that were •omitted through the ellipsis, and then the question would be: “Diga como es cierto que la declarante (ó la confesante ó usted) en diferentes ocasiones ha maltratado de obras su esposo, Don Ramón Pastor Diaz” (State whether the witness (or the one who confesses in court or you) on several occasions has physically ill-treated her husband, Ramón Pastor Diaz), and the only meaning the question could possibly have will be clearly perceived. The omission of the preposition á, noticed in the question, can very easily be explained. Counsel for Pastor, when the oral trial of this case was held, had been working from 9 a. m. of that day (Saturday) to llie dawn of the following day (Sunday), and to the exhaustion of such continuous work was added the anguish and distress caused by the news that had reached him during the early hours of the night announcing the serious illness of one of his sons, and only in deference to the wishes of the court and of the plaintiff’s representative, did he continue to act as counsel under such ■circumstances.
    II. — By erroneously considering the evidence of confession, the court has. also violated, through their non-application, articles 593 and 580 of the Law of Civil Procedure. The court in its judgment declares that the object of the question put to the plaintiff by counsel for the defendant, was to ask whether Carolina Luzunaris had been a victim of ill-treatment of a physical character, at the hands of her husband. Such a question could not be asked, because this had already been done at the request of plaintiff’s counsel, and according to aforesaid art. 593: “New interrogatories can not be demanded concerning facts which have already been the object of previous ones”. In considering the evidence as having the meaning which the court has placed upon it, the latter must necessarily admit, in violation of said article, the possibility of new interrogatories being propounded concerning a fact which has already been the object of previous ones. If the admission of an interrogatory concerning a fact which has already been the object of a previous one was due, according to the trial court, to the obscurity of the wording, the court admits the possibility of obscure and indefinite interrogatories being propounded without rejecting them on its on motion, thereby violating the provisions of paragraphs 1 and 2 of article 580 of the Law of Civil Procedure.
    III. — Likewise, through error in the consideration of the evidence, the trial court lias violated article 106, taken in connection with article 105 of the Civil Code, and Section 20 of the Military Order of March 17, 1899.' Had the evidence of confession in court by the plaintiff been duly considered there can be no doubt that the fact that Carolina Luzunaris had ill-treated her husband would have been held to have been proven and, therefore, under article 106,of the Civil Code, the divorce could not be granted at the request of the plaintiff, she being guilty of the same offense upon which her suit for divorce was based. If the Act of tlie Congres of the United States, approved April 12,1900, commonly known as the Foraker Act, has by section 8 thereof provided for divorce and the dissolution of the marriage bond, it can not be questioned that the causes for granting divorce are the same as provided for in article 105, of the Civil Code, with the modifications made in the former, for in said section it is provided that “all persons lawfully married in Porto Rico shall have all the rights and remedies conferred by law upon parties to either civil or religious marriages”. That is to say, even in the supposition that by these vague and indefinite terms the intention has been to make divorce and the dissolution of the marriage bond apply to religious marriages, there is no question that byr the words “shall-have all the rights and remedies conferred by law, etc.”, the Civil Code is by implication continued in force so far as the causes and requirements of a petition for or a decree are concerned, where the marriage sought to be dissolved was contracted in accordance with the canons; as also the continuance in force of the provisions contained in the Order of the Secretary of Justice,-dated March-17, 1899, when the object of the divorce is to dissolve a civil marriage. That by the Foraker Act, the Civil Code continued in force as to the matter under consideration, is clearly shown in that part of section 8, which reads: “Provided farther, that paragraph 1, article 105, section 4, Divorce, Civil Code, and paragraph 2, section 19, etc., be, and the same hereby are, so amended as to read: “Adultery on the part of either the husband or the wife”. That is to say, that in both the legal provisions applicable to divorce (Civil Code and Order of the Secretary of Justice), the first and second causes respectively recognized, are deemed v’orthy of modification, and there would have been no need of this double modification if the Order of the Secretary of Justice had been considered as the only legislation in force concerning divorce, for then the only'' modification rvould have been clearly stated thus: “Provided, that paragraph 2, section 19, of the Order of the Secretary', etc. be, and the same is hereby etc.” Even were it desired to give a wrong interpretation to the Foraker Act, in the belief that the only legislation applicable to divorce was the aforesaid order of the Secretary of Justice of Porto Rico, dated March 17, 1899, the trial court, through error incurred in considering the evidence of confession-by the plaintiff, would have violated section 20 of said order. It is true that under this provision, the right to-sue for divorce is not conferred upon the husband, as in the Civil Code, when he has been the victim of physical violence on the part of the wife, but it is no less true that section 20 of aforesaid Order continued in force, with regard to divorce in civil marriages, the provision that the guilty party could not demand a divorce. Under the provisions of that or of any other law, a guilty person is one who does something which, when done by another, has a penalty attached, or is punishable. The fact that in certain cases 'and with reference to certain persons the law provides that such penalty or punishment should be more or less severe, or that there should be no punishment, does not preclude the existence of the legal qualification of such acts, whenever or by whomsoever they may be committed. A son who, impelled by the desire of. gain, but without laying violent hands on his father, or intimidating him, or employing force, should take away movable property belonging to his father without the latter’s consent, is amenable to no punishment for such an act, since the law exempts him from all liability, but on that account he will no less be the perpetrator of a theft; he will be a thief' without there being a penalty attached to the theft but for all that, a thief. And inasmuch as Carolina Luzunaris has confessed to having laid violent hands on her husband, .not even applying the Order of the Secretary of Justice of Porto Rico, could this plaintiff sue for, or the court grant her, a divorce on the ground of ill-treatment at the hands of her husband, Ramón Pastor.
    IV. — Moreover, by erroneous application sections 18 and 23 of the Judicial Order of March 17, 1899, in regard to marriage, and section 8 of the law comonly called the Foraker Act, have been violated, because said provisions have not the scope given to them in the judgment appealed from, for under the aforesaid section of the Foraker Act, only persons lawfully married iii Porto Rico are allowed the rights and remedies conferred by law upon parties to either civil or religious marriages, and as to those who have contracted the latter class of marriages, there is no law that provides for the dissolution of the bond.
    The Fiscal o'f this Supreme Court opposed the appeal at the hearing and by brief, and maintained that the same should be dismissed, with costs against appellant.
    
      Mr. Alvarez Nava, for appellant.
    
      Mr. Diaz Navarro, for respondent.
   Mr. Justice Sulzbacher,

after making the above statement of facts, delivered the following opinion of the Court:

The only points raised by appellant in his appeal in cas-sation, which have to be considered by the court, are those of errors of fact and of law in the consideration and interpretation of the second interrogatory which was answered in the affirmative by the plaintiff, and literally reads as follows: “Diga cómo es cierto que en diferentes ocasiones ha maltratado de obra su esposo Ramón Pastor Diaz, (State whether on several occasions****have ill-treated or laid violent- hands****your husband, Ramón Pastor Diaz), as also the construction of General Orders of March 17, 1899, taken in connection with section 8 of the Act of the Congress of the United States, entitled : “An Act temporarily to provide revenues and a civil government for Porto Rico, and for other purposes”, approved April 12, 1900.

The aforesaid question, answered in the affirmative by plaintiff, namely: “Diga cómo es cierto que en diferentes oca-siones ha maltratado de obras.su esposo, Don Ramón Pastor Diaz”, and to which great importance is attached by defendant, is obscure and defective in its wording and therefore, cannot be admitted as evidence that Carolina Luzunaris had maltreated her husband.

The court, after having weighed the testimony of the several witnesses introduced by both parties, concluded that plaintiff had established the fact of her husband’s ill-treatment, while the defendant has not succeeded in convincing the court that the plaintiff had ill-treated him, as alleged.

Section 8 of the Act of Congress, provides as follows: “That the laws and ordinances of Porto Rico now in force shall continue in full force and effect, except as altered, amended, or modified by military orders and decrees in force when this Act shall take effect, and so far as the same are not-inconsistent or in conflict with the statutory laws of the United States not locally inapplicable or the provisions hereof, until altered, amended, or repealed by the legislative authority hereinafter provided for Porto Rico, or by Act of Congress of the United States”. And although section 19 of General Orders of March 17, 1899, provides that a divorce can be decreed only in purely civil marriages, specifying as one of the grounds for divorce “cruelty by the husband toward the wife, when same is of a physical character”, — a ground alleged and proved in this case,— inasmuch as said section 8 also provides: “and all persons lawfully married in Porto Rico, shall have all the rights and remedies conferred by law upon parties to either civil or religious marriages”, -it is evident that the intention of Congress was to confer upon all persons lawfully married, all aforesaid rights and remedies, whether the marriage was performed by the civil authority, or according to the rites of the Church; and the conclusion must be arrived at that all the provisions of above mentioned General Order of March 17, 1899, in so far as they have reference merely to civil marriages, are in conflict with the said law of Congress, and the terms of said General Order should also be applied to religious marriages; a doctrine already established by this court.

In view of the reasons above set forth, the appeal should .be dismissed in all its parts. We adjudge that we should declare and we do declare that the appeal in cassation for violation of law, taken by Ramón Pastor Diaz, does not lie and impose upon him the costs. This decision is ordered to be communicated to the District Court of Humacao for compliance therewith.

Messrs. Chief Justice Quinones and Associate Justices Hernández, Figueras and MacLeary, concurring.  