DISSENTING OPINION Op
MB. JUSTICE WOLE.The Penal Code and the system of law by which we are governed leaves the extent of the penalty to the discretion of the trial judge.
Sections 320 and 321 of the Code of Criminal Procedure provide:
“Sec. 320. After a plea or verdict of guilty, where a discretion is conferred’ upon the court as to the extent of the punishment, the court, upon the oral suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily at a specified time; and upon such notice to the adverse party as it may direct.
“Sec. 321. The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a justice of the peace of the district, out of court, upon such notice to the adverse party as the court may direct. No affidavit or testimony or representation of any kind, verbal or written, can be offered to or received by the court or a judge thereof in aggravation or mitigation of the punishment, except as provided in this and the preceding section.”
It follows, it seems to me, that the judge below has a complete discretion, until one of the parties shows a reason for augmenting or diminishing the penalty. If the defendant has circumstances in mititgation he should take the steps *407set out in the foregoing section. Nothing of the kind was done here. All that defendant did was to confess himself gnilty which is the “plea” mentioned at the. beginning of section 320. After a plea of guilty, says the law, the court has a full discretion unless a defendant makes a showing. A mere confession is not sufficient.
It appears to me that the decision of the majority is equivalent to deciding that when a defendant confesses himself guilty the court must fix a penalty of exactly half of what the law permits.
In so far as in some other ease I may have consented to a modification of a judgment, if the facts were not different in that case, my present matured judgment is as set forth above. I am authorized to state that Mr. Justice Aldrey agrees with the considerations of the foregoing paragraphs.
On RECONSIDERATION.
Mu. Chief Justice Del Toro delivered the opinion of the court on April 27, 1927.
A motion has been filed by the Fiscal of the Supreme Court and the prosecuting attorney for the district of San Juan for reconsideration of the judgment rendered in the present case. It is sworn to by the district attorney and accompanied by the penal record of the defendant written out by the warden of the insular penitentiary on the 4th of April, instant.
The attorneys allege that this court took into account the so-called brief of the defendant which was quoted in the opinion and which contains false statements in regard to alleged suggestions from the district attorney, and also allege that the truth of the matter is that at the time of imposing the sentence the district attorney informed the court as to the penal record of the man pleading guilty and that acting thereon the court imposed the maximum penalty.
Although owing to the manner in which the motion to *408reconsider has been filed we could not but overrule it on the ground that the record can not be amended by including therein facts on the mere motion of one of the parties even if the motion is sworn to, we wish to state that the judgment and the opinion of this court were based on the- contents of the complete record sent up by the clerk of the trial court and known to the district attorney who intervened in the bringing of the appeal, from which it appears that no compliance was had with section 320 of the Code of Criminal Procedure which reads:
“After a plea or verdict of guilty, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily at a specified time, and upon such notice to the adverse party as it may direct.”
As to the statement by the defendant, contained in his so-called brief, in regard to the suggestion from the district attorney, the court did not and could not take it into consideration because they were mere statements contained in a document without justification in the record. The opinion of the court is self-explanatory.
It is proper to add that there is no argument in the motion as to the principles established in the opinion on which was based the judgment sought to be considered.
Therefore, the motion to reconsider must be overruled.