People v. Cabrera

DISSENTING- OPINION BY

MR. JUSTICE CORDOVA DAVILA

This Court, in the case of People v. Noonan, recently decided (46 P.R.R. 700) upholds the theory that a defendant once acquitted by virtue of a peremptory order of a court, the case is definitely settled, and that there can be no new trial for the prosecution of the same offense charged in the information. We agreed to the opinion delivered in said case, overwhelmed rather than convinced by repeated decisions of the Supreme Court of California, and especially by the conclusions reached in the case of Kepner v. U. S., 195 U. S. 134, cited and commented in our opinion.

However, we are not bound to follow the trend of thought of the Supreme Court of California in construing provisions of law in force in Puerto Rico if the conclusions of the said Court are in our judgment erroneous. As to the Supreme Court of United States, it is our duty and we are bound to obey and respect its decisions construing provisions of law in force in our island. With the foregoing, we will express our opinion on this very important matter which some day might be brought again to the consideration of the highest court of the nation.

The case at bar directs our attention once more to tiie holdings in Kepner v. U.S., supra, from the delivery of the *182original judgment to its review by the Supreme Court of the United States. Thomas E. Kepner, a practicing lawyer in the city of Manila was charged with the embezzlement of the funds of a client. The court of first instance acquitted the said lawyer. The Grovernment appealed from that judgment. The Supreme Court of the Philippine Islands reversed the judgment of the lower court, found Kepner guilty and sentenced him to a term of imprisonment of one year, eight months and twenty-one days, suspended him from any public office or place of trust, and deprived him of the right of suffrage. This case may be distinguished from the one before us in that it was not tried before a jury but before a law court -without jury which weighed the evidence and decreed the acquittal of the defendant. In the case before us there was an error of law, committed by the lower court in improperly refusing t oadmit a certain evidence and in directing a verdict for defendants.

In the case of Kepner v. U.S., supra, it does not appear that the Manila Court of first instance which rendered the original judgment were induced to error, and perhaps this might be another reason to distinguish this case from those where the defendant himself procures the error. However, this distinction would have to be established on the proposition that the defendant can successfully plead double jeopardy only when the erroneous decision of the court has not been caused by him. That is not the holding of the Supreme Court of California. When a jury acquits a defendant upon the order of a court, though said acquittal were due to a gross and manifest error caused by the defendant himself, the California Court upholds the theory that a reversal of the judgment would be of no practical value, because the defendant can not be tried again for the same offense. However, this same defendant, if he moves for and obtains the vacation of the judgment or verdict entered against him, can be prosecuted again for the same offense. Hopt v. Utah 104 U.S. 631, 110 U.S. 574, 114 U.S. 488, 120 U.S. 430; Regina v. *183Drury, 3 Cox Crim. Cas. 544; S.C. 3 Car. & Kirv. 193; Commonwealth v. Gould, 12 Gray 171. Therefore, under that theory the defendant occupies a position doubly advantageous, because if he is acquitted he is under the constitutional pro-testion against double jeopardy, and if he is convicted he can move to set aside the verdict or judgment and he will get a new trial after a conviction. Such a distinction does not seem to be supported by logic. If the plea of former jeopardy prevents another action when the defendant is acquitted by virtue of a mistake of law committed by the court of first instance, it would also be a bar to another prosecution when a verdict or judgment against him is set aside at his request because of a mistake that did him harm. However, the courts maintain that in the latter case a defense of former jeopardy will not lie and if that is so, and the rule is based on the fact that the defendant himself moved to set aside the judgment or verdict, in our opinion, logically, the same rule should be applied when the defendant induces the court to a mistake of law which causes his acquittal. In the presence of the same reason, the same law should be applied. It seems advisable to state the fact that Mr. Justice Holmes, as constitutional right might be waived. The eminent juris is of opinion that the defendant waives no right because there is no double jeopardy when he is retried in the same case.

There is no doubt that under these conditions the position of the Government is very disadvantageous. The mistakes of law against the defendant can be reviewed by higher courts to give the convict another chance to be tried, if the acts charged constitute a public offense, but mistakes of law against the Government can not be corrected even when the statute gives the right to take exceptions and appeal to the Government. The provisions of law to protect the rights of the Government would be rendered vain and completely ineffectual in practice, because there is no possibility of enforcing them. We can not explain to ourselves how a *184new trial can be granted to a defendant when gross mistakes are committed against him, and not when fundamental errors of law are committed against the Government. The opinions delivered by the majority and the minority in the case of Kepner v. U.S., supra,, should be carefully studied. In the opinion of the minority, written by Mr. Justice Holmes, it is said that a defendant can not waive, and certainly will not be taken to waive without meaning it, fundamental constitutional rig'hts. According to the eminent jurist there is jeopardy from the beginning to the end of a cause, and the case does not end until it is finally decided. The proceeding is only one and a continuation of the same case, ending when the judgment of conviction or acquittal becomes final because of the expiration of the time to appeal, when there is a right to appeal, or when the case is finally decided by a court of last resort. Justice Holmes is of the opinion that the defendant might be tried more than once in the same cause. The constitutional provision forbids a trial in a new and independent case where a man already has been tried once.

In Kepner v. U.S., supra, the court of first instance acquitted the defendant. The prosecuting attorney took an appeal under a statute providing for the right of appeal. The Supreme Court of the Philippine Islands reversed the judgment and found the defendant guilty. The case was taken to the Supreme Court of the United States by a writ of error. The judgment was reversed and the defendant discharged. The case was decided by the majority votes of five justices against four. Justices Holmes, White, McKenna and Brown dissented. Two dissenting opinions were written. The first one, written by Justice Holmes, Justice White and Justice McKenna concurring, says as follows:

“I regret that I am unable to agree with the decision of the majority of the court. The case is of great importance, not only in its immediate bearing upon the administration of justice in the Philippines, but, since the words used in the Act of Congress are *185also in the Constitution, even more because the decision necessarily will carry with it an interpretation of the latter instrument. If, as is possible, the constitutional prohibition should be extended to misdemeanors, Ex parte Lange, 18 Wall. 163, 173, we shall have fastened upon the country a doctrine covering the whole criminal law, which, it seems to me, will have serious and evil consequences. At the present time, in this country, there is more danger, that criminals will escape justice than that they will be subjected to tyranny. But I do not stop to consider or to state the consequences in detail, as such considerations are not supposed to be entertained by judges, except as inclining them to one of two interpretations, or as a tacit last resort in case of doubt. It is more pertinent to observe that it seems to me that logically and rationally a. man cannot be said to be more than once in jeopardy in the same cause, however often he may be tried. The jeopardy is one continuing jeopardy from its beginning to the end of the cause. Everybody agrees that the principle in its origin was a rule forbidding a trial in a new and independent case where a man already had been tried once. But there is no rule that a man may not be tried twice in the same ease. It has been decided by this court that he may be tried a second time, even for his life, if the jury disagree, United States v. Pérez, 9 Wheat. 579; see Simmons v. United States, 142 U. S. 148; Logan v. United States, 144 U. S. 263; Thompson v. United States, 155 U. S. 271, or notwithstanding their agreement and verdict, if the verdict is set aside on the prisoner’s exceptions for error in the trial. Hopt v. People, 104 U. S. 631, 635, 110 U. S. 574; 114 U. S. 488, 492; 120 U. S. 430, 442; United States v. Ball, 163 U. S. 662, 672. He even may be tried on a new indictment if the judgment on the first is arrested upon motion. Ex parte Lange, 18 Wall. 163, 174; 1 Bish. Crim. Law (5th ed.), sec. 998. I may refer further to the opinions of Kent and Curtis in People v. Olcott, 2 Johns, Cas. 301; S. C., 2 Day, 507, n.; United States v. Morris, 1 Curtis, 23, and to the well-reasoned decision, in State v. Lee, 65 Connecticut, 265.
“If a statute should give the right to take exceptions to the Government, I believe it would be impossible to maintain that the prisoner would be protected by the Constitution from being tried again. He no more would be put in jeopardy a second time when retried because of a mistake of law in his favor, than he would be when retried for a mistake that did him harm. It cannot matter that the prisoner procured the second trial. In a capital case, like Hopt v. People, a man cannot waive, and certainly will not be taken to waive without meaning it, fundamental constitutional rights. *186Thompson v. Utah, 170 U. S. 343, 353, 354. Usually no such waiver is expressed or thought of. Moreover it cannot be imagined that the law would deny to a prisoner the correction of a fatal error, unless he should waive other rights so important as to be saved by an express clause in the Constitution of the United States.
“It might be said that when the prisoner takes exceptions he only is trying to get rid of a jeopardy that already exists — that so far as the verdict is in his favor, as when he is found guilty of manslaughter upon an indictment for murder, according to some decisions he will keep it and can be retried only for the less -offense, so that the jeopardy only is continued to the extent that it already has been determined against him, and is continued with a chance of escape. I believe the decisions referred to be wrong, but, assuming them to be right, we must consider his position at the moment when his exceptions are sustained. The first verdict has been set aside. The jeopardy created by that is at an end, and the question is what shall be done with the prisoner. Since at that moment he no longer is in jeopardy from the first verdict, if a second trial in the same case is a second jeopardy even as to the less offense, he has a right to go free. In view of these difficulties it has been argued that on principle he has that right if a mistake of law is committed at the first trial. I Bish. Crim. Law (5th ed.), Sections 999, 1047. But even Mr. Bishop admits that the decisions are otherwise, and the point is settled in this court by the cases cited above. That fetish happily being destroyed, the necessary alternative is that the Constitution permits a second - trial in the same case. The reason, however, is not the fiction that a man is not in jeopardy in case of a misdirection, for it must be admitted that he is in jeopardy, even when the error is patent on the face of the record, as when he is. tried on a defective indictment, if judgment is not arrested. United States v. Ball, 163 U. S. 662. Moreover, if the fiction were true, it would be equally true when the misdirection was in favor of the prisoner. The reason, I submit, is that there can be but one jeopardy in one case. I have seen no other, except the suggestion of waiver, and that I think cannot stand.
“If what I have said so far is correct, no additional argument is necessary to show that a statute may authorize an appeal by the Government from the decision by a magistrate to a higher court, as well as an appeal by the prisoner. The latter is every day practice, yet there is no doubt that the prisoner is in jeopardy at the *187trial before the magistrate, and that a conviction or acquittal not appealed from would be a bar to a second prosecution. That is what was decided, and it is all that was decided or intimated, relevant to this case, in Wemyss v. Hopkins, L. R. 10 Q. B. 378. For the reasons which I have stated already, a second trial in the same case must be regarded as only a continuation of the jeopardy which began with the trial below.”

The opinion of Mr. Justice Brown follows:

“Under our Anglo-Saxon system of jurisprudence I have always supposed that a verdict of acquittal upon a valid indictment terminated the jeopardy, that no further proceedings for a review could be taken either in the same or in an appellate court, and that it was extremely doubtful whether even Congress could constitutionally authorize such review.
“Conceding all this, however, I think that in applying the principle to the Philippine Islands, Congress intended to use the words in the sense in which they had theretofore been understood in those Islands. By that law, in which trial by jury was unknown, the jeopardy did not terminate, if appeal were taken to the audiencia or Supreme Court, until that body had acted upon the case. The proceedings before the court of first instance were in all important cases reviewable by the Supreme Court upon appeal, which acted finally upon the case and terminated the jeopardy. This was evidently the view of the military commander in General Order, No. 58, and of the Philippine Commission in the act of August 10, 1901, (No. 194) in both of which an appeal to the Supreme Court was contemplated, even after a judgment of acquittal. I think this also must have been the intention of Congress, particularly in view of sec. 9 of the Philippine act of July 1, 1902, which provided that ‘the Supreme Court and the- courts of first instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided .... subject to the power of said government to change the practice and method of procedure.’ It seems to me impossible to súpose that Congress intended to place in the hands of a single judge the great and dangerous power of finally acquitting the most notorious criminals. ’ ’

Mr. Justice Brown refers to an act of Congress, approved in 1902, providing for a civil government for the Philippine Islands, which act provided among other things for immunity *188from double jeopardy for the same criminal offense. As aforesaid, the Philippine statute granted the right of appeal both to the Government and to the defendant. The majority of the court held that said statute was repealed by the Act of Congress providing immunity from double jeopardy for the same criminal offense. The dissenting opinion of Mr. Justice Brown endeavors to harmonize the Philippine statute with the Act of Congress. In the opinion of the majority of the Court some-provisions of the Fuero Real and of the Siete Partidas are cited, whereby a man acquitted by a valid judgment of any offense of which he has been accused, can not be accused afterwards for the same offense except in certain cases. Under that system of law, according to the majority, the trial was regarded as one continuous proceeding, and the protection given was against a second conviction after this final trial had been concluded in due form of law. It should be noticed that this doctrine comes very near to the theory upheld by the opinion of the minority written by Mr. Justice Holmes.

The case of People v. Noonan and the one now before us, are examples of the unfavorable position of the Government to defend the rights entrusted to it. To us it is clear that the court erred in both cases. We agree with the conclusions established in the opinion delivered by Mr. Chief Justice del Toro in the case at bar as to the error of the court in refusing to admit certain evidence and in directing the acquittal of the defendant.

In the case of People v. Noonan, the People offered evidence to show that -on November 5, 1930, around one or two o’clock in the afternoon, a truck belonging to the Porto Rican Express Co. carrying certain boxes of merchandise was traveling from the Condado to San Juan by the “Dos Her-manos” bridge over the Condado Bay; that said truck was driven by Antonio Cruz Jiménez; that Carmelo Torres and Santiago Rodriguez also traveled in said truck, sitting on the boxes, the former looking forward and the latter to the rear; *189that the track was going by the right side of the bridge, the one corresponding to it; that when the track had gone over one-foarth of the bridge there appeared in rear of the track and traveling in its same direction a touring car driven at high speed by the defendant, which on passing the track collided with it with terrific force and sent the track with a somersault into the bay, facing the Condado; that the track and all its occupants fell into the water, Torres and Rodriguez came oat serioasly injured, and the driver Antonio Crnz Jiménez dead becaase of the injaries received when he was caught nnder the track in its fall.

The above evidence clearly shows that the lower coart erred in directing the acqaittal of the defendant. Said evidence should have been samitted to a jary, the sole jadge called apon to decide qaestions of fact and to determine the credibility of witnesses. The weight of the evidence is a qaestion to be decided by the jadges of facts and not by the trial jadge, who shoald only settle qaestions of law snb-mitted to him.

The State of California does not give the jadges the power to direct verdict for defendant. There the jadge mast limit himself to saggest the acqaittal of the defendant. The jary is free to act as it deems convenient, notwithstanding the suggestion of the trial jadge. Section 257 of the Code of Criminal Proeedare empowers the coart to peremptorily instract the jary to aeqait the defendant. If the mission of the jary is simply to obey, we mast agree that its fanetions as a deliberative body end when it becomes a mere execator of the will of the coart. In these circamstances, thoagh the verdict is signed by the jary, the trath is that the acqaittal is decreed by the jadge.

Mr. Jastice Brown expresses his astonishment, and even considers impossible to sappose that Congress intended to place in the hands of a single jadge the great and dangeroas power of finally aeqaitting the most notorioas criminal. The spirit of American institations is to protect the innocent man, *190not to give immunity to the gnilty man. The theory of former jeopardy endeavors to prevent prosecution from becoming persecution, not to preclude the state from continuing a cause to its final decision by appellate courts through lawful means. We repeat that the case of Kepner v. U. S., supra, is not equal to the one now before us. The Supreme Court of the United States does not hold that when a verdict of not-guilty is entered by the jury upon peremptory instructions of the court, the right of appeal can not be resorted to when it is granted by statute to correct by a new trial a manifest error committed against the state, as when a verdict or a judgment is set aside at defendant’s own motion. In the Kepner case the court of first instance entered a judgment of acquittal after considering the facts and applying the law; in the instant case the evidence could not be weighed by the judges of facts called upon to enter a verdict.