delivered the following opinion of the court:
This question is one of a jury trial where a verdict was rendered of “guilty with all the extenuating circumstances.”
The facts upon which the information is based are as follows:
The aforesaid Facundo Abreu Cabán, on the evening of the 16th inst., within the municipal district of Aguadilla, which forms part of this judicial district, and while in the dwelling house and store of Fermín Valentín, had an altercation with Benito Pumarejo, in consequence whereof, in an outburst of passion he drew a knife which he carried in his belt, and with it made a thrust at Pumarejo, stabbing him in the left supraclavicular region, from which wound he died a few moments after. Aforesaid act is contrary to the law in such eases made and provided, and against the peace and dignity of the People of Porto Rico.”
*219No bill of exceptions in dne form was filed npon the trial, and the defendant, who is the appellant, has not appeared in this conrt either in person or through his attorney. But after the verdict and before the sentence, he applied to the Mayagiiez court, through his attorney, F. José Ramón Freire, for a new trial, citing in support of his motion paragraphs 4, 5, and 6 of section 303 of the Code of Criminal Procedure. It does not in any manner appear from the record, however, that the verdict was decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors; or that the court had erroneously instructed the jury upon any point of law, or had erred in the decision of any question arising during the course of the trial. The above assertions are not at all borne out by the record, and under these circumstances, there is no reason for entering upon the consideration of these matters. The form employed in denying the new trial has also been attacked by counsel; but although it is true that it is deficient, for it should have contained the grounds for the refusal, there is no provision in the law which.compels the adoption of a particular form; and on the other hand, such a defect in the formalities of procedure would not be sufficient to warrant, for this sole reason, the granting at the present time of the new trial applied for, inasmuch as said deficiency has neither prejudiced, nor tended to prejudice the defendant, in respect to a substantial right. (Section 461 of the Code of Criminal Procedure.) In the course of the trial the Fiscal asked the witness Fermín •Valentín whether he had testified before the justice of the peace that Abreu had told him that he and Pumarejo had challenged each other to fight. The defense objected to the question, which being admitted by the court, the witness replied that he had so testified, and' in the record it is stated, merely that counsel had taken an exception, and he calls attention thereto for the purpose of strenghtening his motion for a new trial, but this case does not come within any of those *221mentioned in section 303 of the Code of Criminal Procedure. As to the verdict being contrary to law and evidence, under paragraph 6 of said section 303, which is the chief argument advanced by the defense, account must he had of the fact that we have to deal with the crime of manslaughter, punishable under section 204 of the Penal Code; and when the verdict declares the defendant guilty, it is to be supposed that the jury did not find that the homicide was justified, inasmuch as the attending circumstances were not sufficient to excite the fears of a reasonable person, nor did they consider that Facun-do Abren Cabán had acted under the influence of such fears alone, as prescribed by section 210 of the Penal Code; and perhaps they judged that the death of Pumarejo resulted from a challenge between him and Abreu, according to the testimony of Fermín Valentín, the principal witness for the prosecution. But if the penalty is considered excessive, because the verdict recommended that all the extenuating circumstances be taken into account, this would amount to an attack upon the judgment in which the punishment of the guilty party is fixed. From this judgment, however, no appeal has been taken. There is no reason, therefore, that would warrant a new trial, and it is the opinion of the Ponente that the application should be denied and that the decision of the Mayagüez court, of October 3, 1903, overruling said application, be affirmed.
Affirmed.
Chief Justice Quiñones and Justices Hernández and MacLeary concurred. Mr. Justice Sulzbacher did not sit at the hearing of this case.