Ex parte Bird

Mr. Chief Justice Quiñones,

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

The publication of the correspondence inserted in the newspaper “The San Juan News”, constituted the offense of contempt of the court that tried the criminal case prosecuted against Osvaldo Baez, as defined by paragraphs 3 and 5 of section 1 of an act of the Legislative Assembly of this Island, “defining the offense of contempt of court and providing for the punishment thereof”, approved March 1, 1902, inasmuch as the news transmitted by the correspondent ' of aforesaid newspaper, declared to be false by the presiding judge of the court, and the accuracy of which was not in any manner substantiated by the parties concerned, tended to bring the court into disrepute, by bringing about suspicion of partiality and lack of integrity on the part-of the presiding judge and the jurors haying cognizance of the case, -whom it was sought to place under suspicion of being bribed or influenced by prominent persons of the locality, to give a decision in favor of the accused and, on the other hand, inasmuch as Judge Arturo Aponte, who presided over the court, was competent to hear and decide the case prosecuted against the parties responsible for aforesaid offense, with absolute independence of the other judges of the District Court whose jurisdiction he assumed, to take cognizance of said case and of all the incidental issues that might be raised in the course of the hearing, among which must he considered as included any contempt committed in the presence of the court or in any other manner provided for by the law, there can be no doubt that the presiding judge of the court", Arturo Aponte, had jurisdiction both by reason of the subject-matter and of his position as trial judge, and was competent to hear and determine the case prosecuted against the aforesaid Hobart S. Bird and Julio Medina, for contempt of said court, and that, therefore, the plea of lack of jurisdiction made by the petitioner in his application should be dismissed.

Nor should any consideration be given to the other allegation of nullity urged by said petitioner, on the ground that the trial was held in his absence, although he had asked for a continuance alleging a just cause therefor, because the trial having been continued for the first time at the request of the same party, and another citation was made and a day set for the hearing, which was had, his counsel being present and alleging what was deemed by him pertinent to his case, the essential formalities of the proceeding were observed, and the party concerned cannot complain of having been deprived of any substantial right, especially when it is a general rule established by section 179 of the Code of Criminal Procedure, which by analogy may be applied as a doctrine in the present case, that in prosecutions for misdemeanors, in which class contempt of court is included, the presence of the defendant is not a necessary condition for the validity of the proceeding, provided he be represented by his counsel.

Notwithstanding this, since by section 3 of aforesaid act referring to contempt of court, it is provided that “whenever a person is fined or committed to jail for a contempt of court, an order or warrant for such fine or imprisonment must he signed by the judge delivering such sentence, setting forth the act or acts constituting such contempt, with the time and place of the commission thereof, and the circumstances thereof, -and specifying the sentence of the court, otherwise such sentence' will be wholly invalid and inoperative’’; and as the warrant issued for the commitment of Hobart S. Bird does not contain the requisites prescribed by aforesaid section, inasmuch as it is not signed by the trial judge, Aponte, nor does it contain a statements of the acts constituting the. contempt, the judgment delivered by .said Judge Aponte is null and void according to the express provisions of the law, and, therefore, the warrant issued for the execution thereof upon the person of Hobart S. Bird, is null and void.

The theory advanced by the Fiscal in his brief to the ■effect that the act of the Legislative Assembly of Porto Rico defining and punishing the offense of contempt of court has been repealed by the Penal Code, cannot be sustained, for aside from the fact that it cannot be presumed that the Legislature intended that a law created for the purpose of strengthening and sustaining the authority and prestige ■of the courts should have only temporary effect — from March 1, 1902, when it was approved, to July 1 of the same year, when the Penal Code took effect — it appears, on the ■contrary, that the latter does not affect it in the least, inasmuch as under section 7 of said code, nothing therein •“affects any power conferred by law upon any court martial or military authority or other officer, to impose or inflict punishment upon offenders; nor any power conferred by law upon any public body, tribunal, or officer, to impose or inflict punishment upon offenders”; from which it is to he-inferred that among these powers is included the one conferred by aforesaid act of the Legislative Assembly upon this Supreme Court, the District Courts and any other analogous or similar tribunals, duly established in Porto Rico to punish contempts committed against their authority, whether in their presence or in any other manner provided for by said act.

This doctrine is strengthened and confirmed by the very act of the Legislative Assembly, section 3 of which provides that “punishment for a contempt of court under this section shall not bar a criminal prosecution for the same offense conducted by the Fiscal of the proper jurisdiction; but where a person so punished is convicted upon such additional prosecution, his previous punishment under this act shall be taken under consideration by the court pronouncing the sentence against him”; whence it is logically to be inferred that there are no contradictory or conflicting provisions in these two laws, but that, on the contrary, they harmonize and agree perfectly, and that both were enacted by the Legislative Assembly with the intention that they should subsist together and at the same time.

The warrant issued for the commitment of the petitioner, Hobart S. Bird, being therefore inoperative and void, it comes under the provisions of paragraph 3, section 483, of the Code of Criminal Procedure, and the writ, as proposed by the Fiscal in his brief, cannot be duplicated, because the judgment rendered'by Judge Aponte being null and void, any writ issued for the execution thereof would likewise be null and void.

In view of the legal provisions cited and the decision of this Supreme Court, delivered May 1, 1903, 3 Porto Rico Reports 501, in a similar proceeding instituted by said Hobart S. Bird, on the occasion of a judgment rendered against him by the District Court of San Juan, for the same offense of contempt of court, the applicaton presented by the petitioner, Hobart S. Bird, is hereby sustained and he is accordingly finally discharged and the bail-bond furnished by him ordered to be cancelled.

Mr. .Justice Hernández, concurred.

Mr. Justice Sulzbacher, also concurred, basing his action on the reasons set forth in his opinion.

Mr. Justice MacLeary dissented.

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