
    People of Porto Rico, Plaintiff and Appellee, v. Víctor A. Carbonell, Defendant and Appellant.
    No. 2842.
    Argued January 11, 1927.
    Decided March 30, 1927.
    
      B. Bivera Zoyas, Mcmuel A. Martínez and Pedro Baiges for the appellant. José E. Figueras for the appellee.
   Mr. Justice Hutchison

delivered the opinion of the court.

Appellant has been twice convicted of manslaughter upon an information for murder. At the threshold of the first trial a challenge to the panel was overruled by the trial judge and for error in this regard the judgment was reversed on appeal. People v. Carbonell, 34 P.R.R. 457. Upon the second trial appellant pleaded the former conviction as an acquittal of the higher offense and as a bar to further prosecution under the charge of murder. The overruling of this plea is now assigned as error.

“A question tbat bas given rise to two well defined rules is wbetber a conviction of a lower degree of a crime is a complete acquittal of tbe bigber degrees in tbe sense of tbe ‘twice in jeopardy’ rule so that, if a new trial is granted, it must be limited to tbe lower degree of which the defendant was previously convicted. One line pf authorities answers this question in the negative and bolds that on the new trial tbe defendant may be tried again for tbe crime as charged in tbe indictment, and that be may be convicted of any degree of such crime just as if there bad been no previous trial. The reasons given for thi's rule are tbat tbe defendant cannot voluntarily set aside tbe verdict and also bold to it. A verdict cannot at tbe same time be of force and not of force. Tbe verdict of guilty is single. Tbe defendant cannot divide it into that which pleases him and tbat which does not. The positive fact is the verdict of guilty of one offense; and the negative implication from tbat finding is not guilty of the other offense. It is not easy to see bow tbe positive finding which furnishes tbe sole basis for the negative implication can be destroyed and set aside by the voluntary action of tbe accused, and yet leave the implication to stand alone without a basis. To sustain a plea of former acquittal, there mu’st be a subsisting record of an acquittal; and if a verdict of guilty of a lesser offense operates as a record of acquittal of the greater, when it is set a’side at tbe instance of the accused, it is certainly no longer a subsisting record of conviction. Tbe courts bolding this view do riot agree that tbe defendant has tbe right to limit bis waiver as to jeopardy when be appeals from a judgment against him. As tbe judgment stand’s before be appeals, it is a complete bar to any further prosecution for the offense set forth in tbe indictment, or for any lesser degree thereof. No power can wrest from him tbe right so to use that judgment, but if be chooses to appeal from it and to ask for its reversal be thereby waive’s, if successful, bis right to avail himself of tbe former acquittal of the greater offense, contained in the judgment which be bas himself procured to be reversed. The other rule • is tbat a verdict of conviction of a lesser degree of a crime charged involves a complete acquittal of tbe higher degrees for all purposes, and that a. new trial ’subsequently granted on motion of tbe defendant is not to be considered as a new trial for tbe greater offense of which be was acquitted, but must be confined to a retrial of the offense of which he was convicted. The theory of this is that the result of the verdict is the ’same 'as though the defendant had been tried on separate indictments chárging the several crimes, or on an indictment containing counts separately eharg-ing tlie offenses. The real difference between the two rules is the extent of the waiver which the defendant make's by asking for and receiving a new trial. But even under this rule if the jury, in a murder case, where the indictment charges murder in the first degree, find the defendant guilty as charged, but fail to state the degree of murder, as required by the statute, and a new trial is granted, presumably because of such defect in the verdict, the defendant cannot maintain a plea of former jeopardy, on the ground that such verdict operated a's an acquittal.’' 8 R. 0. L. pages 161-162, section 153.

The doctrine heretofore obtaining in a numerical majority of American jurisdictions, and now invoked by appellant, has given rise to more or less embarrassing complications in certain cases and in recent years seems to be losing ground. In like proportion the logical and consistent view of the minority is receiving a somewhat -wider recognition and after mature deliberation we are constrained to adopt it as the basis for a more practical, impartial and effective protection of the rights of society upon the one hand as well as the rights of the individual upon the other.

Among the cases considered in this connection (several of which are cited not as indicating the general trend of recent well considered opinions but rather as suggestive of the perplexing character and variety of questions, and consequent confusion of ideas, incidentally involved in the majority doctrine) are the following: Trono v. United States, 199 U. S. 521; State v. Ash, 122 Pac. 995; Caliccat v. State, 95 So. 318; Jones v. State, 109 So. 265; People of the State of California v. Ham Tong, 24 L.R.A. (N. S.) 481; People v. Keefer, 65 Cal. 132, 3 Pac. 818; People v. Carty, 19 Pac. 490; I. A. Euey v. State of Texas. 12 A.L.R. 1003.

The other questions sought to be raised, as presented in the brief for appellant and in so far as not already disposed, of, do not demand serious consideration.

The judgment appealed from must be affirmed.

Mr. Justice Wolf concurred in the judgment.  