ConcuRRing Opinion op
Mr. Chief Justice Quiñones anb Justices Hernández and Pigueras.The undersigned justices find themselves obliged to prepare this concurring opinion, inasmuch as the reasons set forth by the dissenting justice were not expressed at the proper time,, that is, when the decision was rendered denying the writ of habeas corpus applied for by Hobart S. Bird. If said reasons had been expressed, they would have been discussed and considered in said decision, and thus what may perhaps appear as an impropriety would have been avoided.
The said justice discusses some facts and certain proceedings which do not appear upon this record, and to which we can only refer.
The dissenting justice starts with a presumption for the purpose of impeaching the validity of the appointment of Angel García Veve, as associate judge of all the district courts, and who acted as such in the present case; and although he acknowledges that he was appointed by the Govern- or, he contends that such appointment was not made with the consent of the Executive Council. However, we must assume that the first authority of the Island complied with that duty if he considered himself bound to do so by the law; and until the absence of that requirement is shown, it is necessary to accept the legality of the appointment and to hold valid all the proceedings in which the substitute judge intervened.
It is alleged that when said García Veve formed part of the court notice of his appointment should have been given *611to Bird, and that if this was not done the judgment should he declared void, as the judgment rendered on September 19, 1902, was held void for a like reason. But the fact should be taken into consideration that the cases discussed by the dis-. senting justice are quite different.
The first designation made of a substitute judge was for a specific case, and the accused having no knowledge of his designation, it was necessary that notice of such appointment should be served upon him so that he could, if he desired, exercise the right of challenge for the causes which are specifically prescribéd by the law then applicable. But in this case the appointment of Judge García Veve was of a general character, since it was made for the purpose of providing a substitute for all the regular judges of the district court of the Island in cases of vacancies. His appointment, therefore, possessed a public character. But in addition to this, it does not appear from the habeas corp%t,s proceedings whether notice of the appointment was given to Bird or not, and it is not possible to refer from memory to proceedings which were not -taken into consideration in the decision which is now the subject of the appeal.
The procedure adopted by the District Court of San Juan is also attacked; but that procedure does not depart from that established by Judicial Order No. 228 of December, 1899, and it is necessary to respect the provisions of said order in cases in which, as in the present one, the Fiscal is asking for a correctional penalty. That order had the laudable object of expediting criminal proceedings, in so far as possible, and of reducing the term of provisional imprisonments.
The form of the judgment rendered by the District Court of San Juan is also drawn into question, on the ground that it fails to comply with the provisions of article 142 of the Law -of Criminal Procedure, which was antecedent to the law enacted by the Legislative Assembly of Porto Rico, approved March 1,1902; and hence it is concluded that the judgment of *613conviction against Bird should be reversed, as was done in the case of Mariano Abril from the District Court of Ponce by reason of a defect of form.
But the dissenting justice forgets the different periods of time in which the facts occurred. When the case of Abril came to this court the old law of procedure established here by Spain was in full force and effect, and this was a tribunal having cognizance of appeals in cassation, which were extraordinary remedies which would lie in all criminal causes from the final decisions of courts, the object of which was to correct any wrong committed in the judgment through errors of law affecting the substance of the subject-matter, or for failure to observe the essential forms of the proceedings. The record of the preliminary proceedings could not then be taken into consideration for any purpose. That court of cassation had to form its opinions in view of the judgment of the lower court; and Mariano Abril was therefore discharged because the alleged punishable article was not set forth in the judgment, and there was therefore no way by which the court of cassation could correctly judge as, to the scope and importance of the words published in the newspaper, “La Democra-cia.” And hence in that case and in other similar ones, and always complying with the law in force, the judgment was annulled and the accused acquitted of the crime with which he was charged.
But the present case of Hobart S. Bird is different in every respect. It came to this court on appeal, and not in cassation like that of Abril. The judgment against Bird contains the words and phrases which the court a quo considered defamatory, and this court of which we form part as judges is no longer required to subject itself to the strict limits of the old law. It can now examine the article complained of, even though the necessary matter is not included in the judgment, as has been done, because we are authorized *615to do so by the act of the Legislative Assembly, approved March 12, 1903, which reads as follows:
“AN ACT ESTABLISHING THE SUPREME COURT OE PORTO RIOO AS A COURT OE APPEALS..
“Be it enacted by the Legislative Assembly of Porto Rico:
“Section 1. — That’ the Supreme Court of Porto Rico shall hereafter be a Court of Appeals and not a Court of Cassation. In its deliberations and decisions, in all eases, civil or criminal, said court shall not be confined to the errors in, proceeding (procedure) or of law only, as they are pointed out, alleged or saved by the respective parties to the suit, or as set forth in their briefs and exceptions, but in furtherance of justice, the court may also take cognizance of all the facts and proceedings in the case as they appear in the record, and likewise consider the merits thereof, so as to promote justice and right and to prevent injustice and delay.
‘ ‘ Section 2. — All the sections of the Law of Civil Procedure establishing proceedings for appeals on cassation-are hereby repealed.
“Section 3. — The procedure on appeals shall conform to the provisions of the Code of Civil Procedure for suits of greater import, suppressing the proceedings known by the name of ‘Apuntamiento
“Section 4. — In all cases where reference is made in the Law of Civil Procedure to actions on cassation, the same shall be construed as meaning actions on appeals.
“Section 5. — All laws or parts of laws in conflict with this act are hereby repealed.
“Section 6.- — -This act shall take effect from and after its passage.
“Approved, March 12, 1903.”
We believe that the promotion of justice and right and the desire to prevent injustice, which are the objects proposed by this law, are attained as well by absolving the innocent as by condemning the person found guilty of a crime.
*617Neither have we ever considered in such an absolute manner the necessity of an express declaration in the judgment appealed from of the facts proved in the findings of fact, and it was once pointed out that it was sufficient to deduce the nature of the crime and the participation of the accused therein from the findings of fact, without the positive declaration of “facts proven,” and from the conclusions of law contained in the judgment appealed from. This occurred in the appeal of Pablo Pont y Crespo, from the District Court of Ponce, in which there was no declaration of facts proved in the findings of fact; and this court, which was then one of cassation, in its judgment of November 22, 1902, and the opinion having been prepared by the dissenting justice himself, held in one of its conclusions of law that the absolute and categorical terms in which the first finding of fact was embodied in the judgment appealed from, and the intimate connection which it bore to a consideration of said judgment, were sufficient grounds for holding that the court a quo had considered in its conscience as proven, the facts' set forth in said first finding of fact. This same doctrine was laid down in the judgment of this court of March 25, 1902, which was also subscribed by the dissenting justice.
The attack upon the form in which the judgment of the District Court of San Juan was drafted has therefore been answered, apart from the fact that it is not a proper subject of habeas corpus, as is likewise improper the procedure adopted by our illustrious colleague, the dissenting justice, in reviewing the decision rendered by this court in the case pending on appeal and filing a dissenting opinion in the matter of habeas corpus, for it is well-known law that regardless of the errors of a court, they cannot affect the decision on habeas corpus unless they operate to divest the trial court of its jurisdiction.
Let ns now enter upon a consideration of the last point discussed by the dissenting .justice, and that is the theory *619maintained by him that the soul and spirit (so he says) of article 265 of the Penal Code, applied to Bird, went away to Spain upon the cessation here of her sovereignty. Bnt the dissenting justice has come to see this very late, since he forgets that by his vote he condemned Práxedes Rosario de Je-sús, and signed the judgment of conviction of June 17, 1902, applying article 258, and in another judgment for which he also voted, and signed on June 26,1902, application was made of article 262, which, owing to its character and to the fact that it relates to criminal attempts against agents of authority and disrespect toward the same, and is included in the same title as article 265, should also have gone with the sovereignty of Spain, as now contended by the dissenting justice.
But where the involuntary forgetfulness of the dissenting justice is clearly seen is in the judgment of June 3,1902, which reads as follows:
“In the city of San Juan, Porto Rico, June 3, 1902. This is an appeal in cassation for error of law, which is pending before us, prosecuted by Antonio Pomales Gómez from a judgment of the District Court of Arecibo, in a case instituted against him for insults and calumny against authorities. ' ,
“Said judgment, which was rendered on the 24th of August last, contains the following finding of fact:
“The fact has been proved that the accused, Antonio Pomales, a resident of Manatí, stated publicly to various persons, and among them to Virgilio Pozo and José Rivera, that the mayor of the town, Virgilio Ramos, had been paid the sum of one hundred dollars by Abelardo de la Haba not to oppose the re-building of a house, situated in the town of Manatí, and the property of the estate of Brunet.
“The trial court declared that the facts proved constituted the crime included in article 265 of the Penal Code, and that Antonio Pomales Gómez was guilty of the same, without any circumstances modifying his liability, by reason whereof it condemned him to the penalty of two months and one day’s imprisonment, accessory penalties and costs.
“Prom this judgment the counsel for the defendant has taken an appeal in cassation for error of law, as authorized by subdivision 1 *621of article 849 of the Law of Criminal Procedure, citing as having been violated article 265 of the Penal Code by reason of the improper application thereof, since in the finding of fact above set forth it is not stated that Yirgilio Bamos received the gift in question as mayor in the exercise of his functions, which is an indispensable requisite to make it possible for him to have been calumniated as such mayor. Nor has he been insulted in his capacity as mayor, not only for the reason above set forth, but also because the fact that a person has been rewarded for not performing lawful acts which he may perform does not redound in his dishonor, discredit or contempt, especially in the ease of a person who, like Mr. Bamos, has his reputation well established.
‘ ‘ The Fiscal opposed the appeal upon the hearing.
‘ ‘ The case having been heard, the opinion of the court was prepared and delivered by Associate Justice José C. Hernández, as follows:
‘ ‘ The crime defined and punished by article 265 of the Penal Code is committed by those who, while an authority is in the exercise of his functions, or on the occasion thereof, shall calumniate, outrage, or insult him by deed or word, outside his presence, or in a writing not addressed to him; calumny consisting of the false imputation of any crime which gives rise to a prosecution at the instance of the government, and insult of any expression made or act committed in dishonor, discredit or contempt of another person, according to articles 471 and 475 of the same Code.
“The imputation publicly made by the appellant against the mayor of Manatí, Virgilio Bamos, outside his presence, to the effect that he had been paid the sum of one hundred dollars for the purposes mentioned, undoubtedly constitutes the crime of bribery under some or any of the forms defined in chapter 9 of title 7 of book 2 of the Penal Code, and if it did not constitute said crime, it would be insulting to the authority of said official as offensive to the uprightness and impartiality which he should evince in the exercise of the duties of his office. It is evident, therefore, that the trial court has not committed the error of law on which the appeal is based, nor has it committed the violation of law with which it is charged.
“We therefore adjudge that we ought to declare and do declare that the appeal in cassation prosecuted by Antonio Pomales Gómez was not properly taken, and we condemn him to the payment of the costs. Let the record of the case be returned and this decision be communicated to the District Court of Arecibo for proper action.
*623“Thus by tbis our judgment, which will be published in the Official Gazette, we pronounce, order and sign. José S. Quiñones, José C. Hernández, José Ma. Figueras, Louis Sulzbacher, J. H. Mac-Leary.
“Publication. — The foregoing judgment was read and published by José C. Hernández, associate justice of the Supreme Court, a public session of said court having been held on this day, to which I certify as clerk, in Porto Rico, July 3, 1902: Antonio F. Castro.”
As will be observed, the dissenting justice voted for and signed this judgment. In said judgment the same article 265 of the Penal Code was applied, namely, the one which went in soul and spirit, according to him, with the Spanish sovereignty.
And is it possible that that cadaver lived in the law and in the mind and conscience of the dissenting justice in the case referred to in the judgment set forth, and on a date on which Spanish sovereignty had ceased, and that to-day that article is really dead so that it cannot be applied to Hobart S. Bird under the argument of the change of sovereignty? There comes before us the inconsistency of such a position, which may find its justification in the involuntary forgetfulness of those cases in which the dissenting justice previously intervened with his vote and signature.
All the other points made in the dissenting opinion are discussed in the decision of the judge who prepared the opinion of the court, which we accept and adopt as our own, in denying the writ of habeas corpus applied for by Hobart S. Bird.
We conclude by stating that only the necessity of justifying our consistency and conduct in expressing our opinion and rendering our decision constrains us to come out in this way against the opinion of the dissenting justice, since he failed to express the reasons therein set forth in due season, that is to say, at the time the case was discussed, and then they would have been refuted, as we now do, after having ascertained the reasons upon which he bases his dissent to the judgment.