DISSENTING OPINION OE
MR. OHIEE JUSTICE DEL TORO.I dissent from the opinion of the majority. In my judgment the admission of the written testimony of witnesses Aurelio Cordero and Aurelio Rodríguez was erroneous, but the error committed was not prejudicial to the defendant and therefore it does not justify the reversal of the judgment appealed from.
The admission of the testimony was after the prosecuting attorney had fully examined and cross-examined the witnesses in regard to the contradiction between the present testimony and that previously given before that officer. The witnesses answered and explained. They insisted that they had given the same testimony on both occasions. It was then *397the opportunity for the defense to step in if the examination was not being conducted in legal form and if the witnesses were not shown their written testimony, and request them to explain away the contradiction. The record shows that he only did it on one occasion, but that after the judge had given certain explanations he apparently was satisfied and took no exception.
That means that if any prejudice was caused to the defendant it was at the first moment and he can not complain because his attorney took no exception.
It is sufficient to see the manner in which the exception was finally taken in order to conclude that the attorney for the defendant objected on the only ground of the correctness of the proceedings, and not because he apprehended any prejudice against the defendant. His attitude is perfectly .clear. A reading of the written testimony shows that it does not prejudice but favors the defendant.
It may be stated from a careful examination of the evidence that the final admission of the testimony had no influence on the verdict. The jury could give full credence to the testimony of the two Aurelios and yet find the defendant guilty, not only of manslaughter but of murder. The jury could admit the existence of a struggle at the beginning of the encounter and yet conclude by virtue of the examination of the body of Laureano González made by Dr. Fiol that it was a case of justifiable death.
The doctor made a post mortem examination of the body of Laureano González, the person whom the defendant killed, and found on his body three knife wounds and eight bullet wounds, five of which showed where bullets went in 'and two where they left the body. The doctor said that “he had,” referring to the firearm wounds, “an orifice of entry on the right brachial region with an orifice of departure in the right armpit; there was another on the chest, which went through the heart, with no orifice of departure; he had *398another on the other side of the chest, the right side, that left the back on the left, and there was one bullet that entered the back and left by the front.” And later, on examination by the defendant’s attorney in regard to the position of the defendant and of his adversary when inflicting on him the last of the wounds described, he said:
“Always from behind, the aggressor behind and the victim in front, if he shot him standing up, but if he shot him on the ground no matter the position, he might have fired being forwards or backwards, from the head or from the feet.
“If he struck him standing up he did so from behind, and if on the ground, a man on the ground is not in front or behind but on the ground.
“Of course, or from behind also, this man stood behind and shot him while on the ground, either he shot him in the back while on the ground, or if standing up from behind.”
The defendant did not receive any wound. At the trial be testified at length. His testimony on this point in answer to questions from the prosecution is as follows:
“Q. You say that he began to attack you with the machete? A. Yes, Sir. Q. Did he wound you? A. I did not notice, because after I saw him lying.Q. Again, did he wound you? A. No, Sir.”
That being so, in furtherance of justice and as I do not see anything to show that the defendant had not been tried by an impartial jury, in harmony with the spirit governing the law relating to the reversal of judgments in criminal eases approved in 1904 and amended in 1905, Comp. 1911 p. 1001, I am of the opinion that the judgment should be affirmed.