People v. Español

Mr. Justice MacLeary

delivered the opinion of the court.

This is a. case of rape, in which an appeal was taken from a judgment of conviction, rendered in the District Court of San Juan, against the defendant, sentencing him to the punishment of seven years at hard labor in the penitentiary. The case was tried in the district court 'before a jury Which rendered a verdict of guilty in proper form.

Previous to the sentence the defendant made a motion for & new trial, setting out various grounds tlierefor, principally involving alleged errors of the court in admitting or rejecting •evidence and in its charge to the jury. A statement of facts, combined with the bill of exceptions, was duly presented, approved and filed herein, and makes a large part of the record.

The appeal is taken, not only from the judgment of conviction, rendered on February 17, 1909, but from the order of the court below, refusing the motion for a new trial, entered on the same day. Oral argument was made, at some length, on the hearing in this court, by both parties, the fiscal having previously filed a brief herein, and 10 days being granted to •each of the .parties, on request, for filing briefs after the hearing. These briefs were eventually filed but long after the time limit had expired. They are quite voluminous and have required much study and attention.

The appellant, in this case, bases his claim for a reversal of the judgment, and granting a new trial, on four grounds which may be stated as follows:

I. Errors, alleged to have been committed by the court during the progress of the trial, in the admission and exclusion of evidence.

•II. Errors supposed to have been incurred, in giving the charge to the jury and in refusing instructions asked by the defendant.

III. That the verdict of the jury should have been set aside, on application, because it is contrary to the evidence.

IY. That the case should be retired, in the court below, on account of newly discovered evidence.

These four propositions will be examined in the order here stated.

I. (a) The admission of certain- evidence is objected to because it is insufficient to prove the issues involved in the charge made against the defendant. It is not necessary to the admissibility of evidence that it should have a certain effect. It is sufficient if it tends ^o prove the issue. The effect of evidence when admitted can be argued before the jury. Its admissibility, to tbe consideration of tbe jury, must be decided by tbe court in tbe first place. This is an entirely different matter from its sufficiency to prove the allegations of tbe information presented against tbe accused, which must be considered later.

It is alleged as an error that tbe court permitted a hypothetical question to be propounded to an expert, witness which was not based on facts previously proven nor afterwards shown to support the hypothesis. The sixth exception taken by the defense is set forth in the record, on page 53- of the transcript as follows:

“ A woman of an organic constitution as that of Angela Arnau, who had been three nights and three days troubled by assisting a sick person and, therefore, haying her organism tired, and who has drunk a certain amount of gin, to wit, from three to four fingers, in a big glass, would such alcohol be sufficient to cause the loss of her strength, if such a drink produced the effect of a narcotic?

“The attorney for the accused took an exception to this question, because, being founded on a hypotesis, as it.was admitted by the fiscal, it must be propounded in such a manner as to include in it those facts which might have been presented in evidence, and in such a question the fiscal assumes, without it being previousiy proven, that Angela Arnau was ‘three nights and three days troubled on account of assisting a sick.person and, therefore, that she had her organism tired’; and this defense insists that the hypothetical question should be framed in such a manner that the conclusion to winch the expert witness might arrive may not be a defective one.

“The court decided, against the opposition made by the accused, that such a question could be made, ‘the same being left to the consideration of the jury, who may or may not consider it’; and to this erroneous ruling the accused took an exception. ’ ’

We bave searched tbe record in vain for any fact or group of facts wbicb sustains tbis hypothesis. It does not appear from tbe proof that the prosecuting witness bad been engaged, for three days and nights, nor for anything near sueb a period, in waiting upon a sick person, nor that her organism was wearied by so doing.

The expert physician to this question replied, as is set forth in the statement of facts, in the following words: “The witness went on to say that it is evident that the human body, although the body of the woman, is as strong, and it has been proved that at times it is even stronger and has more endurance than that of the man, it is evident that after being up for two or three nights in active attendance on a sick person, without sleeping, or having slept as little as possible, and after having drunk some alcoholic beverage, her body must feel immediately and more quickly the effects of a condition of nervous excitement which produces afterwards that general lassitude of the body which is the result of having drunk alcholic beverages. All alcholic beverages will probably cause a collapse after their absorption. That the essential oils have a more direct action on the nervous system. The witness went on stating that the alcholic beverages containing essential oils have a more stimulating action than others; for instance, wine is slower in its action than anisette and other white drinks and gin.” (See pp. 53 and 54 of record.) This is all that was said by the expert in reply to the hypothetical question.

There can be no doubt that to permit such a question as the one propounded, without the laying of the necessary predicate, was an error. In considering the exclusion of such a question it is said by the Supreme Court of California:

“We think that in the absence of any evidence that deceased, after receiving the wounds inflicted on him, drank any intoxicating liquor, or any statement of the counsel who propounded the question, that he expected to prove that deceased did drink intoxicating liquor after he was wounded, the ruling of the court was not erroneous. ’ ’ (People v. Dunne, 86 Cal., 37.)

And again the same high court remarks:

“There was no .error in sustaining the objection of the prosecution to the inquiry of counsel for defendant, addressed to the physician' who had made an examination of the prosecutrix on the evening of tbe alleged assault. The question propounded was hypothetical, and was sustained on the ground that it assumed facts not in evidence, and we think the ruling was correct.” (People v. Scalamiero, 143 Cal., 349.)

But the ultimate question’for us to decide in the case at bar is, that although the admission of such testimony was erroneous, was such error prejudical to the accused'? The Supreme Court of California, in one of the cases cited above, comments on such testimony as follows:

“We think, however, that the district attorney might safely, and without any neglect of duty, have withheld his objection. It is seldom, if ever, that an answer to an irrelevant question can prejudice a prosecution. Jurors are not so easily imposed upon or confused by irrelevant evidence as many prosecutors seem to suppose.” (People v. Dunne, 86 Cal., 37.)

And our statute provides that harmless errors incurred by the trial court will not justify the appellate court in the reversal of a judgment. (Laws of Porto Bico, 1905, p. 10.)

We do not see that any harm occurred to the case of the defendant by this error of the court; and cannot reverse the judgment for such a reason.

There was no error incurred by the court in the admission of any evidence offered by the prosecution of which the defendant has any right to complain.

(5) The next matter for our consideration is the exclusion of certain evidence, sought to be used by the accused, from the consideration of the jury. The second exception of the appellant deals with a question put by the counsel for the accused to the prosecuting witness, to wit, whether or not she knew the restaurant “La Española,” to which she replied that she knew it. Inasmuch as she had already answered the question, there was no reason for any objection,a motion to strike out the answer would have been proper at such a time, but was not offered.

(c) The third exception arose in much the same way. After the prosecuting witness had stated that she had never been in the restaurant “La Española” before the date of the alleged crime, but had been there since that date, the judge remarked to the jury that “the jury would not take the answer into account.” The theory of the trial court was, all through the progress of the trial, that the acts and the character of the injured female for chastity, prior to the date on which the rape was alleged to have been committed, could be proven as a defense on the part of the accused, tending to show the improbability of the want of consent, and of resistance, and as well to impeach the character of the witness for truth and veracity; but that the same inquiries could not be made nor the same facts shown in regard to such matters subsequent to the date of the supposed outrage. There is a line of cases supporting the view taken by the trial court; but the best and most recent authorities, as they are presented to us, in our opinion, support the position taken by the appellant, when the question of force and resistance in the accomplishment of the ravisher’s purpose is involved, or when it is sought to show that the female, alleged to have been ravished, really consented to the carnal act.

It is admissible, in a prosecution for rape, alleged to have been accomplished by means of force, to draw from the prosecuting witness, by means of questions on cross-examination, the fact of carnal intercourse had by her with certain individuals, at fixed places, both before and after the date of the alleged rape, since these facts tend to show the probability that the female complainant consented to the special act charged against the accused as a crime. (Brown v. State, 12 Miss., 997, 17 South Rep. 278; People v. Johnson, 106 Cal., 294; People v. Wilmot, 139 Cal., 103; People v. Mathews, 139 Cal., 527; People v. Baldwin, 117 Cal., 244; sec. 21 of the Law of Evidence.)

In cases of rape where the defendant is charged with having had carnal knowledge of the woman by force used to accomplish the act, it may be observed that while the character of the female alleged to have been injured has long been permitted to be called in question and her bad character for chastity allowed to be proven by the accused in his defense, he was formerly confined to evidence of a general nature, and he was not allowed to prove particular acts of lewdness or illegal carnal intercourse on her part with specific persons; but the latter decisions permit this to be done in such cases; and it may now be considered to be a rule that the defendant may show that the woman, who is alleged to have been ravished by force, had voluntary carnal intercourse with himself, or with other men, prior to and about the time of the alleged rape, in order to repel the alleged fact of force being used to overcome her resistance. (McDermott v. The State, 82 Am. Dec., 446; Benstine v. State, 2 Lea, 169; 31 Am. Rep., 510; Wood v. People, 55 N. Y., 515; 14 Am. Rep., 310; Watry v. Ferber, 18 Wis., 500; 86 Am. Dec., 790 et seq.; People of Porto Rico v. Román [5 P. R. Rep., 17], decided December 14, 1903, by Supreme Court of Porto Bico.)

It may be remarked in this connection, that although rape may be committed on the person of a prostitute, still it is a. matter of ordinary knowledge, and a dictate of common sense,, that in such a case there is much less likelihood of resistence being offered than where a pure and spotless virgin is assailed by a ravisher. For this reason the rule has been established in all prosecutions for rape, where force is alleged to. have been used, that previous carnal intercourse with other-persons may be shown as tending to disprove the allegation of force having been used in the Commission of the act, and to show consent on the part of the female. (People v. Benson, 6 Cal., 223; People v. Baldwin, 117 Cal., 249; Benstine v. State, 2 Lea, 169; 31 Am. Rep., 395; People v. Woods, 55 N. Y., 515; 14 Am. Rep., 310; Watry v. Ferber, 18 Wis., 500; 86 Am.. Dec., 790 et seq.)

Mr. Underhill, a reputable text-writer on this subject, summarizes the law applicable to cases of rape, when alleged to have been committed by force or violence to overcome the opposition of the female, as follows:

“The bad reputation of the prosecuting witness for unchastity existing prior to the date of the crime is always relevant in evidence to show that the sexual intercourse may have been consented to by her. An exception to this rule is made where the female is under the age of consent. Evidence of her reputation for unchastity or of acts of sexual intercourse is then irrelevant, as her consent is immaterial.

“The cases are not harmonious upon the question whether the reputation for unchastity of a woman over the age of consent, existing subsequent to the date of the alleged crime, is admissible. The weight of the eases is against it. The evidence of unchaste reputation must come from a witness who has been a resident in the neighborhood where the female also resided. The report of what a detective heard about the woman, on inquiring among her acquaintances, is inadmissible.

“Acts of voluntary sexual intercourse by the prosecuting witness with the defendant prior to the date of the crime may be proved by her extra judicial admissions, by her.answers on her cross-examination, or otherwise. Such evidence is relevant to show that the apparently forced intercourse was voluntarily submitted to by her.

“The great majority of the cases maintain the rule that acts of sexual intercourse participated in by the alleged victim of the rape prior to the date of the crime, but with other men than the accused, cannot be shown to prove her consent. This rule is said to be based upon the assumption that the prosecutrix is unprepared to confute and disprove sudden and unexpected accusations of adulterous acts. In the main, however, it is founded upon the theory that no inference can be drawn that she consented to intercourse with the accused from the fact that she had previously submitted to the embraces of other men. Though evidence of adulterous acts with other men is not generally admissible, evidence of other acts indicating the possession of an immoral character is relevant. Evidence of drunkenness and dissipation, of the keeeping of late hours and of street walking on the part of the prosecutrix will always be received.

“Because of the irrelevancy of adultery with other men it has been held, according to the majority of the earlier cases in both England and America, that when, on her cross-examination, a question is put to the woman as regards her illicit relations with other men, and she waives her privilege of refusing to answrer and denies the act, the accused is bound by her answer. The more recent cases hold, however, that the accused, under such circumstances, is not concluded by her answer, though the matter may not be strictly relevant; but may contradict it solely for impeachment by proving adulterous actions with other men if they are not too remote in point of time. ’ ’ (Under-hill on Criminal Evidence, pp. 479, 480, 481.)

While the foregoing rules, as announced in the decisions of courts of last resort apply to ordinary rape cases where the carnal act is alleged to have been accomplished by force overpowering the resistence of 'the injured female, these decisions and rules, as stated by text-writers, have no reference or application to a case like the present where the accused is charged with having accomplished his purpose and with ravishing the injured woman by administering to her a narcotic. In this case there is no question of force, but merely of want of consent.

The modern definition of rape is the carnal knowledge by a man of a woman without her consent, and this may be accomplished, under our statute, where ‘ ‘ she is prevented from resisting by any intoxicating narcotic or anesthetic substance administered by or with the privity of the accused.” (See sec. 255, par. 3 of the Penal Code.) A woman under such circumstances, is exactly in the same position in which a girl under 14 years of age is placed by the law. She is incapable of giving consent, and as she cannot make resistance, no resistance is required on her part, and we may well refer for the law in such cases to the following well-considered judicial opinion.

Mr. Justice Garoutte speaking for the Supreme Court of California, in an important case decided in 1895, says:

“The defendant offered to prove the general reputation of the prosecutrix for unchastity, but the court denied the offer and allowed evidence of specific acts of unchastity to be proven, relying for such ruling upon the authority of People v. Benson, 6 Cal., 221. While that case holds that specific acts of unchastity may be proven, it does not hold that general reputation for unchastity may not be proven and upon the authority of many text-writers and cases we have no doubt but that the general reputation of the prosecutrix for unchas-tity is proper and legal evidence. But the present case is an exception to the general rule. The prosecuting witness is under the age of consent, and for this reason evidence either of general reputation or specific acts would seem to be immaterial. This class of evidence is admissible for the purpose of tending to show the nonprobability of resistance upon the part of the prosecutrix. For it is certainly more probable that a woman who has done this thing voluntarily in the past would be much more likely to consent, than one whose past reputation was without blemish, and whose personal conduct could not truthfully be assailed. In other words, this class of evidence goes to the question of consent only, and in a case like the present the question of consent is not involved. In speaking to this point, while reviewing certain cases, Judge Oowen says, in People v. Abbott, 19 Wend., 192: ‘They seemed to suppose that the testimony was supposed to shake the general credibility of the witness, as if it went to truth and veracity. That is not so. It goes to her credibility in the particular matter, to a circumstance relevant to the case in hand, from which the jury are asked to say she did consent; and it may be proved by the prosecutrix, or, if she deny it, by others.’ (See also O’Brenis v. State, 47 N. J. L., 279; Lawson v. State, 17 Tex. App., 302.) Sound reason declares that such, of necessity, must be the rule. If this class of evidence was admissible as going to the credibility of the testimony of the prosecutrix in its entirety, then it would be equally admissible as against the veracity of any female who might be called upon to give evidence in a case. Yet no such principle is recognized anywhere. And, as an additional, reason supporting the principle here declared, this class of evidence is always admitted against a prosecutrix charging the offense here charged, even though she gives no evidence at the trial of the case.” (People v. Johnson, 106 Cal., 293, 294.)

So, we find, from this examination, that the trial court was more liberal towards the accused than it was necessary to he in the admission of evidence, since it was not required under the law applicable to the allegations, in this information, that it should admit any proof whatever of the character of the prosecuting witness for want of chastity, or in regard to acts of lewdness on her part, either before or after the date on which the offense is alleged to have been committed, inasmuch as such testimony is only admissible, as a defense on the part of the accused, when it tends to show the improbability of the want of consent and to indicate want of resistance on the part of the injured female. These questions are eliminated by the allegations in the information, in regard to the rape having been accomplished by the use of drugs, and by the proof introduced on the trial; so that line of decisions, to which we have referred, may properly be excluded from the consideration of this court in deciding the appeal now before us.

(d) It has been suggested that there is no sufficient proof of penetration, without which, of course, the crime of rape is never complete. But an examination of the statement of facts shows ample proof of this essential fact. The prosecuting witness testified fully in regard to the matter. It is unnecessary to rehearse the sickening details. Manuel Ar-nau testified, that the crime had been accomplished, basing his assertions on statements made to him by the accused six weeks after the matter had been sent to the court. Francisca Navedo testified to the particulars, among other incidents, that she saw him in the act; and that afterwards she saw the bed and found blood on the sheets and was ordered to wash them. Dr. Velez testified, that after having made an examination and the necessary exploration of the genital organs of the prosecutrix found that the ‘ ‘ curunculas ” of different aspects — that is to say, the scars appearing after the presentation of the lacerations produced by carnal intercourse, showed the loss of her hymen. (See statement of facts, pp. 34, 36, 37, 38, 40, 47, 48, 49, 51 and 52.) Surely this accumulation of evidence is amply sufficient to prove the fact of penetration.

We must hold, therefore, on a survey of all of the facts, and a fair consideration of the law applicable thereto, that there was no material error committed by the trial court in the admission or exclusion of evidence, on the trial of this case.

II. Now let us examine the charge given by the trial court to the jury in submitting the ease to their consideration.

(a) One of the objections urged by the accused to the charge of the court is that it was error to instruct the jury as follows:

“It is not sufficient, in order to consider a witness as false, that he has not told the truth in everything; if he has not spoken the truth In reference to some essential particular, you may consider his evidence as a whole as untrustworthy; but if you find that he was mistaken in some detail, in some unimportant thing, you may consider his -evidence. ’ ’

This paragraph is at least substantially correct. It is true that our statute states the rule of “falsus in uno, falsus in omnibus,” somewhat broadly in the following words: “A witness, false in one part of his testimony, is to be distrusted in ■others.” (Law of Evidence, par. 162; Sess. Acts of 1905, p. 101.) Yet we think that it was not intended by this enactment to vary the generally accepted doctrine, that while an unintentional mistake of fact in regard to some unimportant detail may, and often does, affect the general credit of the witness making it, to some degree, more or less; still there may be no sufficient cause for disregarding his testimony in respect to other material matters. The jury must consider these matters, and draw their conclusions as to the value of the testimony of such a witness. (People v. Strong, 30 Cal., 154 et seq.; Deering v. Metcalf, 74 N. Y. Ct. App. Rep., 504.)

Then the instruction of the court on this point, of which the appellant complains, cannot be regarded as erroneous.

(b) The whole charge of the court must be taken together, in considering its correctness, and one part may be properly elaborated for the purpose of qualifying another. Of course, this rule does not allow the trial judge to give contradictory charges, or such as are irreconcilable; but if a statement is made in one part of the charge which is too narrow, it may be amplified in another part; or if one part of the charge is ob-scare, it may be clarified by later explanations. All that is-required is that the charge shall be, when taken as a whole, sufficiently ample to state the law fully which the facts of the-case demand, and at the same time be consistent and correct. The purpose of a charge, given by the court to the jury, is-that it must explain the issues involved, state the positions-taken by the respective parties if necessary, and suggest and. explain, as far as the case may require, the principles of law, and especially of evidence, applicable to the case, and their application to the facts proven on the trial. The charge should also declare and explain to the jury what rule or rules-of law will be applicable to any group of facts which the evidence may disclose. (Souvais v. Leavit, 50 Mich., 111 [1883] Baker v. Ashe, 80 Tex., 361, [1881].)

While the charge given in this case it not a model of clearness or of judicial composition, it states substantially the law applicable to the facts in the case, in a manner to be understood by the jury and not liable to mislead them. There can be no well-founded objection raised to it on account of its being' prejudicial to the rights of the accused.

(c) But the appellant claims that the court erred in refusing to give the instructions to the jury which were asked by his counsel. It is true that the court qualified two of the instructions which the defendant asked; but they were, nevertheless, given to the jury; and the qualifications were not such as to deprive the accused of their full benefit to which he was, of course, entitled. It is generally best to give or refuse instructions asked in a direct and unequivocal manner. But-an instruction may be qualified if it is fairly stated and the qualifications announced in such a manner as not to destroy the effect of the legal proposition properly propounded.

It is true that in prosecutions for rape the accused is in a position where it is very difficult to make an effective defense, and while the law, which was in force at the date of this trial in the court below did not require the evidence of the prosecu-trix to be corroborated, still it was the duty of the court to ■warn the jury of the danger of convicting the accused, on the testimony of the woman alleged to have been ravished, unsus-tained by any facts and circumstances shown in corroboration of her testimony. This has been the universal practice in the English and American courts from the days of Sir Mathew Hale to the present time. (People of Porto Rico v. Cancel, [13 P. R. Rep., 179] decided June 29, 1907.)

This the court did in effect, in giving the first instruction asked by the defendant, though probably not as clearly as might have been desired.. However, the obscurity, if such existed, was not so great as to justify the objection made by defendant’s counsel.

The second instruction asked by the defendant was given to the jury without any material qualification, though the court evinced some reluctance in the matter. But such modifications as were made by the court in these instructions did not in any way alter the meaning, nor mislead the jury, nor prejudice the rights of the accused, nor deprive him of any means of defense. Hence there was no error therein. (Russel v. Amador, 3 Cal., 403.)

(d) The third instruction asked by the counsel for the defense was refused by the court and reads as follows:

‘1 The court instructs the jury that in a case of rape it is the duty of the fiscal to show, before a conviction can be had, that the injured female complained of the act immediately after its commission, or as soon as she had the opportunity to do so. That in this ease it has not been shown that such complaint was made by the female in question. ’ ’

The court could not have given this instruction to the jury without committing an error, because of the last sentence included therein, which virtually takes away the case from the jury and instructs them to acquit the defendant. So far as the evidence required, this question had already been covered in the charge given by the court to the jury.

Then we find nothing in the charge of the court, or the instructions asked by the defendant and given in a qualified form or refused by the court, that requires a reversal of the judgment.

III. It is claimed by the appellant that the verdict of the jury is contrary to the evidence, and a great effort has been made to show this by comparing the testimony of the several different witnesses, one with another, and pointing out alleged contradictions in the various parts of the testimony of particular witnesses, and especially in that of the prosetrix and her brother. There is, no .doubt, considerable conflict in the testimony of the different witnesses, as compared with each other, and some inconsistencies in the several statements made by some of the witnesess for the prosecution. This occurs in nearly all closely contested criminal trials. But it is the province and the duty of the jury, under proper instructions from the court, to weigh the evidence and reconcile, so far as possible, the inconsistencies or the contradictions in the testimony, and to sift the grain of truth from the mass of chaff, which may be found therein, and thus arrive at a just verdict founded on the facts proven. So far as we can see, from a careful perusal of the record and the briefs, this duty has been fairly performed by the jury; and we do not feel justified in saying that any error has been committed in this particular. Another jury on the same facts, under proper instructions, might arrive at an entirely different verdict, which we might feel the same hesitation to disturb.

There is nothing in this record to show that the jury, which tried this case in the court below, was moved, or in any way influenced, by passion, prejudice or partiality; and in such cases we have frequently held that this court will not modify the finding of a trial judge, or set aside the verdict of a jury. (Morales v. La Central Machete, 2 Dec. de P. R., 603, decided June 23, 1905; Sucesión Iglesias v. Bolívar, [11 P. R. Rep., 548] decided Dec. 12, 1906; Auffant v. Serra et al., [14 P. R. Rep., 39] decided Feb. 5, 1908; Andino v. Cepeda, [15 P. R. Rep., 464] decided June 22, 1909; Quevedo v. Sucesión Pino, [15 P. R. Rep., 669] decided Nov. 16, 1909; Morales et al v. Landrau et al., [15 P. R. Rep., 761] decided Dec. 18, 1909.)

IY. The appellant claims that the court erred in refusing to grant a new trial on the ground of newly discovered evidence. We do not think so. Applications of this character are generally regarded with distrust and disfavor. (People v. Freeman, 92 Cal., 359.) The evidence, alleged to have been newly discovered, which was presented to the court, by affidavits in support of this motion, is either altogether irrelevant or merely has a tendency to impeach a witness for the prosecution. Newly discovered evidence merely contradictory of the opposing witness will not justify a new trial. (Klockenbaum v. Pierson, 22 Cal., 160.) Most of the affidavits offered relate entirely to facts occurring after the trial and incarceration of the defendant; to visits made by the prosecutrix and her brother to the jail and to the making of a contract between them and the appellant. Such matters cannot be considered as newly discovered evidence, since they relate to facts which had no existence at the time of the trial. None of the evidence ■claimed to have been discovered by the appellant can be considered as throwing any new light on the facts which the jury were called upon to consider in making up their verdict. This is absolutely required before a new trial can be granted on this ground.

The granting of new trials on account of newly discovered evidence is always a matter resting in the sound discretion of the trial court; and its action on such motions will not generally he disturbed unless an abuse of such discretion is shown. (Spottishwood v. Weir, 80 Cal., 448. See also Hayne on New Trial and Appeal, sec. 87, cited in 73 Cal., p. 248.) The courts in passing on such motions are governed by well-established rules which are summarized by Hayne in section 88 as follows:

“To entitle a party to a new trial on the ground of newly discovered evidence, it must appear: 1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not, with reasonable diligence, have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.” (1 Hayne on New Trial and Appeal, sec. 88; People v. Sutton, 73 Cal., 247.)

This doctrine is supported also in the following decisions of the same learned court, to wit: Russell v. Dennison, 45 Cal., 337; Jones v. Jones, 38 Cal., 584; Arnold v. Skaggs, 35 Cal., 684; Levitsky v. Johnson, 35 Cal., 41; Baker v. Joseph, 16 Cal., 174.

A Texas case may also be cited in support of the rule laid down by Hayne, to wit: Sabine and E. T. Ry. Co. v. Wood, 69 Tex., 682. Many other cases, both civil and criminal, might be cited to show that these rules are almost if not quite universal. There was no effort made to show why the testimony of the. witnesses, Rosenda Denis, Cruz Español and Rosario Maldonado, who made supporting affidavits, was not produced on the trial. In fact it may be said that this motion fails in many essential particulars. For these reasons the ruling of the court in refusing the new trial must be deemed to have been correct, and it will be allowed to stand.

Nearly half a dozen years ago the Legislature of this Island, realizing the progress of the age in the reform of judicial procedure, and the necessity of restraining, to some extent at least, the evils of “the law’s delay,” passed a statute depriving this court of the power of reversing a judgment rendered by a trial court “unless the error appearing’ from the record was calculated to injure the rights of either of the parties.” (Sess. Acts 1904, p. 10.) This law applies to criminal as well as to civil cases and may properly be acted on in the consideration of this appeal. This was a long and hardly contested trial in the court below. Some immaterial errors were perhaps incurred in the hurry of business; but it cannot be said that the accused was denied any substantial right or that, in case of different rulings having been made, a milder werdict would have been rendered .in favor of the defendant. (People v. Montijo, [8 P. R. Rep., 1], decided July 23, 1905.)

Then, as there appears to have been no fundamental error ■committed by the trial court, in the decision of this case, the judgment of conviction, rendered by the District Court of :San Juan on February 17, 1909, should be in all things .■affirmed.

Affirmed.

■ Chief Justice Hernández and Justices Wolf and del Toro concurred.

Mr. Justice Figueras did not take part in the decision nf this case.