Dissenting Opinion of
Mr. Jtostice Figueras.It appears from the evidence introduced that the Justice of the Peace of “Catedral’' imposed upon Severo Girino and Canuto Díaz the penalty of imprisonment for a term of ninety days and a fine of forty-five dollars, each, for disturbing the public peace, and of imprisonment for thirty days, for carrying deadly Aveapons; that notice of appeal from this judgment Avas filed in due time, and the record requested to be fonvarded to the District Court; that the Justice alloAved the appeal, approved the bond presented by the appellants, discharged them from custody, and summoned them to appear before the District Court of San Juan on the 20th day of October of last year, to assert their right, should they see fit to do so; that they did appear, and notAAdthstanding this, on March 9th, of the present year, that is to say, a little over four months afterwards, the District Court, simply because it then realized that the bond, already approved by the Justice of the Peace, did not meet the requirements prescribed by Section 48 of the Code ■of Criminal Procedure, dismissed the appeal and returned the record to the trial court in order that the judgment might be complied Avith, the petitioners being accordingly remanded to jail, for Avhicli reason they avail themselves ■of the remedy of a petition for a writ of habeas corpus. The undersigned justice presumes that in refusing to grant the Avrit of habeas corpus applied for, the majority of the ■court bases its action upon paragraph 2 of section 482 ■of the Code of Criminal Procedure, this being why in the foregoing decision reference is made to a final judgment *465of a competent court of criminal jurisdiction. But a fipal judgment is not under consideration herein. On the contrary,- the judgment has been appealed from and the case should have been tried “de novo”, according to the closing provision of section 3 of the Code of Criminal Procedure. So sacred is this right, that although there has been an error or mistake in the proceedings, this can not invalidate them, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right, according to section 461 of aforesaid code, and here the contrary is the case, inasmuch as, through a defect in the form of the bond which, if existing, could be corrected, the petitioners are deprived of their substantia] right to be heard at the proper trial, and all the other rights guaranteed by the VI Amendment to the Constitution of the United States, which has also been violated by the District Court.
While entertaining this opinion the dissenting Justice does not propose to decide the pending appeal in an indirect manner, nor is it his purpose to question the jurisdiction of the court, for it most undoubtedly had jurisdiction legally to hear and determine the appeal, but in no case, under the pretext of a defect in the form of the bond,’ could it ignore the aforesaid law and the Constitution, for had these been respected and applied, perhaps this same court would have concluded that the persons now. deprived of their liberty, are innocent. While thus recognizing its jurisdiction, I maintain that the order of March 9th, last, issued by the District Court, is necessarily unjust and can not be sustained on the ground that it was rendered by a court of competent criminal jurisdiction. To these considerations I am led especially by the circumstance that from the decision ordering the recommitment to prison' no appeal is available which may directly and promptly restore to the prisoners their personal liberty, a sacred right, which after that to life, is the one most precious to the citizen. We have seen that according to section 3 of the Code of Crimi*467nal Procedure, and the Constitution of the United States, the defendants were entitled to a new trial by virtue of the' appeal, and in the case of West v. State, 1 Wisconsin 209, the court, among other things, states that “the right to the proceeding, secured by such high authority can not be denied by legislative enactment, nor should it be obstructed by any judicial interpretation”. If the District Court, after the legal proceeding, had affirmed the judgment of the Justice of the Peace, and the prisoners, after they had commenced to serve their sentences, had applied for the writ of habeas corpus in order to obtain their liberty, then the undersigned would have accepted the opinion entertained by the majority, because then it would have been a question of a final judgment rendered by a court of competent criminal jurisdiction, but this is not the case here, and making use of the words of a judgment rendered by the Supreme Court of one of the States, I believe it to be our duty “to do or to secure substantial justice to the parties under all circumstances’’. In view of the foregoing reasons, and section 481 of the Code of Criminal Procedure, inasmuch as from the evidence no legal cause is shown at present for the imprisonment of Severo Cirino and Canuto Díaz, I am of opinion that the application for the writ of habeas corpus should be granted, and the prisoners should accordingly be discharged from custody forthwith, and the Fiscal, if he deem it advisable, will see that the law is complied with, so that this case may not be left without a final decision, rendered in a legal manner.