DISSENTING1 OPINION 03?
MR. JUSTICE WOLF IN WHICH MR. JUSTICE DEL TORO OONOURS.While Mr. Justice del Toro and myself agree that the case should be reversed, our reasons for such reversal differ from the majority opinion, and we likewise dissent from the action of the court in discharging the prisoner.
In the first place, we have a different conception of the facts that were before the trial court. , In the record there is not only a statement of the case but there is also a bill of exceptions. Pacts that were submitted to the jury are shown in the bill of exceptions that were not included in the statement. We do not understand why the fiscal or the judge *634did not insist upon all tlie facts being included in tlie statement even if a separate bill of exceptions was prepared. Both tlie statement of tlie case and the bill of exceptions must be considered by this court to get at tlie true facts of tbe trial.
Tbe statement of facts shows that Fidel Ortiz, the defendant, at five o’clock in the morning of December 12, 1913, passed two counterfeit coins of fifty cents each to the prosecuting witnesses, two vendors of chickens, after having firsc offered to pay them with a five-dollar bill. When the defendant was confronted with the men, he took back the two fifty-cent pieces and returned the purchases. Enrique Maldonado, twelve-years old, was a witness for the prosecution. On direct examination he said that he went by the shop of the defendant selling newspapers; that the defendant was sitting in front and called to the witness to buy two newspapers and that the defendant told his clerk to give the boy a.nickel, and the clerk said he did not have one and that then the defendant brought a half-dollar from the drawer of the shop and gave it to the boy, who made the change. The next day the boy’s father discovered that the coin was false and the witness went looking for the defendant and'finally found him; that, the defendant paid back the fifty cents.
On cross-examination the witness said that it was the clerk and not the defendant who gave him the half-dollar. On redirect examination the witness said that the half-dollar was given to him by the clerk on the order of the defendant, and that it was the clerk who gave him back the money. On further cross-examination the witness repeated that it was the clerk who gave him back the money.
The bill of exceptions, besides, shows that a police officer made an investigation of the occurrence related by the newsboy. The police officer testified that some days before the delivery of the two false half-dollars he went to the defendant and asked him how it happened that he gave the bad half-dollar to the newsboy, and that the defendant replied that he *635was disposed to take back the half-dollar; that thereupon the defendant was left with the half-dollar and returned the change given him; that these events occurred about twenty-five days before the passing of the two false half-dollars.
All this testimony of the policeman was given nnder objection. It was important material testimony on the subject of whether the defendant knowingly passed the coin. Perhaps some of it might have been shown to be incompetent on cross-examination, bnt no cross:examination was made, probably because the defendant relied on his objection and exception, As it was important material testimony and as it was admitted on the false theory and solely on the offer to prove, the bad character of the defendant, Mr. Justice del Toro and myself think that the objection and exception were well taken and that the case ought to be reversed. We think it is apparent that the evidence of the policeman was admitted, not ■to prove the knowledge or intent of the defendant in passing the two false half-dollars for which he was being tried, nor yet for the purpose of showing that the defendant was knowingly in the possession of a coin of similar kind to the ones passed by him on the prosecuting witness. We agree with the appellant that this is not the way to prove the character of a defendant and that therefore the testimony was erroneously admitted.
On the other hand, we are equally convinced that the case should have been sent back for a new trial. The reversal in this case is based apparently on the lack of proof, although comment is made on the error to which I have referred. Ignoring the exceptions, the question presented to this court is. whether there was sufficient evidence before the jury to convict, and hence, as the passing of the false coins is conceded by the appellant, there only remains the question of whether there was sufficient evidence in the record to permit a jury to say that the defendant passed the two coins knowing them to be counterfeit.
*636In prosecutions for passing or uttering counterfeit it is competent to prove, as bearing on the questions of scienter, cr guilty knowledge, and of guilty intent, that the accused had in his possession at, before, or after the time of the commission of the act charged other counterfeit of the same kind as or similar to that passed or uttered. 11 Cyc., 318. Mono-graphic note to People v. Molyneux, 62 L. R. A., 257; Commonwealth v. Price, 10 Gray, 472, 71 A. D., 668; State v. Williams, 45 A. D., 741; Reed v. State, 15 Ohio, 222-23; 7 Ruling Case Law, 919; Wharton’s Criminal Evidence, vol. 1, section 35.
The majority opinion accepts that the spurious half-dollar remained in the possession of the defendant after the news.boy had received back the fifty cents.
After a man is acknowledged to have received a spurious fifty-cent piece and then is found to be passing two other counterfeit fifty-cent pieces, the jury have a right to infer that he had knowledge of their spurious character. The majority opinion says: “To hold that the mere fact that a single counterfeit coin having once been paid out of any reputable business man’s cash-drawer by a clerk and afterwards returned and accepted by the proprietor is sufficient to show guilty knowledge and criminal intent on the part of the latter in a prosecution for passing counterfeit money in the course of a subsequent business transaction, would establish a very dangerous and pernicious' precedent. ’ ’ But ' even taking the facts as the court conceives them, there was something more in the record, namely, that the defendant remained in the possession of the false half-dollar and that later he passed two counterfeit half-dollars. These coins ultimately passed were exactly of the same nature as the coin first passed. If one of them was not the same coin as passed originally, to give the defendant the benefit of the doubt, it was a remarkable circumstance that within twenty-five days the defendant should be in possession of three false half-dollars without knowing that any one of them was false. Considering only *637so much, of tlie evidence and barring* tbe error, tbe court would bave tbe right to submit tbe question of tbe guilty knowledge to tbe jury. However, there was something more in tbe record and that was tbe statement of tbe policeman that we bave transcribed, which tended to show that the clerk gave tbe false half-dollar to tbe boy upon tbe order of tbe defendant and that when tbe defendant was asked why be bad done so be replied that be was disposed to receive tbe coin back.
From any aspect of tbe case tbe question of scienter, or guilty knowledge, was a matter for.tbe jury. Tbe action of this court, it seems to tbe dissenting judges, invaded the • province of tbe jury. This court bas tbe power, perhaps, to examine into tbe facts and to see that a verdict or judgment • is not tbe result of passion, prejudice, or partiality, following tbe uniform jurisprudence of this court. Such a power, however, is rarely exercised. Indeed, in this case tbe opinion does not purport to say that tbe verdict and judgment were tbe result of any undue element, but it says that tbe evidence is insufficient. I do not think that tbe Legislature, in giving this court power to •examine into tbe facts for fundamental errors, intended that tbe court should ordinarily substitute itself for tbe jury.
In the case of The People v. Cofresí, decided by this court on July 9, 1915, this court intimated that a jury in Porto Eico could generally be relied upon to convict where a man is guilty, and, similarly, it may be relied upon to acquit when tbe defendant is innocent. Tbe attitude of appellate courts toward overcoming tbe verdict of tbe jury in cases more or less similar may be gathered from general jurisprudence and especially from tbe cases of The People v. Vereneseneckockockhoff, 129 Cal., 497; State v. Martin, 107 Pac., 1000-01; The People v. Sutton, 17 P. R. R., 327, 343; State v. Brown, 113 Pac., 783; People v. Muhly, 114 Pac., 1017. Ad quaestionem facti non respondent judices, ad quaestionem legis non respondent juratores.
*638The action of the court also necessarily assumes that no ■other proof eonld have been obtained by the Government or that the errors complained of could not have been cleared up .at a new trial.
I am authorized to state that Mr. Justice del Toro concurs in this dissenting opinion.