dissenting.
After having thoroughly examined the questions involved in this proceeding, I dissent. I shall briefly explain the grounds for my dissent.
I accept, because it is a good rule of law, that the trial judge had authority to reconsider the sentence of from three to five years’ imprisonment in the penitentiary imposed on petitioner herein. The opinion of the Court correctly sets forth the general rule to that effect as well as the specific rules within which said authority may and should be exercised. It summarizes those rules thus: “The first rule is that the offender must be still under the custody of the trial court, without having undergone any part of the original sentence; the second rule is that reconsideration does not lie unless there is a mistake in the name, in the punishment imposed, or in the application of the law to the facts established in the case, which might justify the reconsideration of the original sentence; and third, that certain circumstances justifying the mitigation or aggravation of the sentence must be present. Arroyo v. People, 41 P.R.R. 727 (1931); People v. Carbone, 59 P.R.R. 608 (1941); Maeders v. State, 22 S. E. 527 (1895); Nichols v. United States, 196 Fed. 672 (1901); 168 A.L.R. 706 (1945).”
In the instant case the first rule is fulfilled. Defendant was still under the custody of the court, and therefore the execution of the original sentence imposed on him had not yet been undertaken. Under such circumstances there was no constitutional inhibition precluding the reconsideration on the ground of the double jeopardy.
The second rule, however, is not fulfilled herein; inasmuch as the reconsideration was not intended to correct “a mistake in the name, in the punishment imposed, or in the application of the law to the facts established in the case.” (Italics supplied.) The sentence in the instant case was reconsidered in order to increase the penalty, taking into *589consideration facts which took place after the original sentence was passed. The latter was fixed by the judge in the exercise of those elements of discretion within his reach and which he considered proper in order to graduate the punishment which he ought to impose: the facts which were found proved in the prosecution and defendant’s condition as an exconvict which, although not alleged in the information, became known to him at the time and constituted, undoubtedly, sufficient proof of defendant’s previous conduct and character which the judge could lawfully take into consideration. There is nothing in the record indicative that the trial judge committed error in evaluating those elements, upon imposing the original sentence, which needed correction.
The third rule, in my opinion, is not fulfilled either. The “circumstances justifying the mitigation or aggravation of the sentence” do not concur herein. Specific facts which took place after the sentence was imposed, whether or not criminal, are not the aggravating circumstances “which may be properly taken into view” by the court to determine the extent of the punishment pursuant to the authority vested in it under § 320 of the Code of Criminal Procedure which provides: “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 xohich 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.” (Italics supplied.)
As a complement to the former provision, § 321 of the said Code provides:
“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. *590No 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.”
Defining the scope of an identical statutory provision in People v. Rudolph, 153 P. 721 (Cal., 1915) it was stated: “The manifest object of the section [1204 of the California Penal Code] is to authorize the court, after a conviction has been had and before sentence is pronounced in any criminal case, to receive testimony either in mitigation or aggravation of the punishment to be imposed. To this end any testimony bearing upon the character or the antecedents of the convicted person — whether he has theretofore been of good or bad character or borne a good or bad reputation or been previously convicted of some offense against the law — may be presented to the court.” (Italics supplied.) 8 Cal. Jur., § 478, p. 460. See, also, 2 Alexander, The Law Arrest, % 765, p. 1931 et seq, for the scope attributed to the term “aggravating circumstances” when increases in the punishment are involved, as well as Ingram v. State, 39 Ala. 247, 84 Am. Dec. 782. Of course the court may, under said provision, motu proprio, examine the circumstances which may justify the mitigation or aggravation of the punishment, State v. Arnold, 39 Idaho 589, 229 P. 748, but then it can not do what the statute otherwise does not provide for.
Specific acts performed after a sentence has been entered can not give rise to the aggravation, upon reconsideration, of the punishment imposed, for if said acts constituted an offense, they can not be a basis for the imposition of a punishment unless the offender is prosecuted, with every safeguard thrown about him; and if said acts did not constitute an offense, neither would they be a basis for the imposition, indirectly, of a punishment which the law does not authorize nor allows to be imposed directly. See annotations in 134 A.L.R. 1267 and 86 A.L.R. 832. Said specific acts which are subsequent to the pronouncement of the original sentence are *591not the circumstances “which may be properly taken into view” by the court, in aggravation of the penalty, according to our statutory law. Since the matter is here regulated by statute, the violation of its provisions to the prejudice of defendant’s right renders the court’s action void. In the case at bar, since the Act for the Establishment of Suspended Sentences does not come into play — No. 259 of April 3, 1946 (Sess. Laws, p. 534) — the pre-sentence reports authorized by the Federal Rules of Criminal Procedure and which are also expressly authorized by the legislation of other jurisdictions could not be considered. In Williams v. New York, 337 U. S. 241, 93 L. ed. 1337, cited in the concurring opinion, the statute of New York, N. Y. Criminal Code (McKinney, 1945) § 482, expressly authorized the use of defendant’s previous criminal record as well as any reports on “mental phychiatric [sic] or physical examination” and it further authorized the court to seek any information that will aid the court in determining the proper treatment of such defendant. Such a thing can not be done in Puerto Rico, except in those cases in which the defendant, being a first offender, is eligible for probation. Sections 320 and 321 of the Code of Criminal Procedure are in full force and effect in cases like the one at bar. See Due Process and Legislative Standards, 101 U. of Pa. L. Rev. 257, 276; 49 Cal. L. Rev. 567, 48 Mich. L. Rev. 523.
In order to carry out fully the sociological function of criminal justice, at its initial stage, as foreshadowed by the advanced studies on modern penology, the judge, upon passing sentence should weigh, in a comprehensive consideration of those factors which are particular to each offender, all those elements of judgment which may aid him in determining the most adequate means for his rehabilitation, whether by suspension of the sentence or by institutional confinement for a minimum term, after which he shall be paroled by the corresponding administrative body, if he experiences, after an adequate treatment, a favorable change *592which may render it possible. In that sense the mission of a judge is difficult — almost guesswork — in those cases, as here, where he can not rely on probation officers who may guide him in the intelligent exercise of his discretion. A revision of the pertinent statutes in an integrated and coordinated manner, is imperative.
As La Roe in Parole with Honor states, at pages 185 and 186: “... The sad truth is that in every case the judge necessarily indulges in guesswork when he imposes a sentence. It is utterly impossible for him to predict how the prisoner will respond to institutional care; or what his health will be; or to what extent his mind will improve; or whether his attitude will become better or worse under supervision. In sentencing prisoners our judges are forced to gamble with human destinies.” And at page 194: “All the circumstances surrounding the commission of the crime must be given consideration. This our courts have attempted to do, but they have not been able to look into the future and make a valid prediction as to the time when the offender shall have been rehabilitated and made ready for his return to the community which he has wronged. With the shift in emphasis from a philosophy of punishment to a philosophy of rehabilitation, it is far less important to make the sentence reflect the seriousness of the offense than it is to provide for the restoration of the offender to the community when he is ready to be restored. And that matter cannot be determined at the time when sentence is imposed.” Or, as Cantor states in Crime and Society, p. 94: “In the absence of guiding principles, the personal predilections and idiosyncrasies of the judge influence the nature of the sentence.” See also, Jerome Hall, Science and Reform in Criminal Law, 100 U. of Pa. L. Rev. 787; MacCormick, The Prison’s Role in Crime Prevention, 41 J. Crim. L. & Criminology, 42-43; Barnes and Teeters, New Horizons in Criminology, p. 391 et seq. and p. 598 et seq.
We can also say, as in Meaders v. State, (Ga., 1895) 22 S. E. 527, that “The presumption is that the sentence first *593imposed was, in the opinion of the court, a proper punishment for the offense,..There was no other cause for altering the sentence than petitioner’s attempt to escape. And although, in the absence of a specific cause to increase the punishment we must presume that the trial judge did so from right and proper motives, Nichols v. United States, 106 F. 672 (C. A. 8, 1901), when his reason to enhance the punishment clearly appears from the record, and it is not fit for consideration by the court, then the presumption that there were adequate reasons is eliminated, and the court’s action is subject to the prevalent legislation on that matter. We have already seen the scope of the law herein.
The petitioner was actually sentenced to a term of four to five years’ imprisonment in the penitentiary in addition to the original sentence of from three to five years imposed on him, as a direct result of his conduct, which produced “a state of confusion and disorder” in the court. Said conduct could have been punished as contempt and the petitioner sentenced to serve the maximum term of 30 days in jail or $200 fine, or both, at the court’s discretion. Act of March 1, 1902 (Sess. Laws, p. 83), as amended by Act No. 102 of May 12, 1937 (Sess. Laws, p. 241). If said conduct, aside of contempt, constituted any other offense — it was not that of escape, nor attempt to escape, see § 152 of the Penal Code prevailing at that time, as well as the amendments introduced by Acts Nos. 9 of December 29, 1950 (Spec. Sess. Laws, p. 388) and 447 of May 14, 1952 (Sess. Laws, p. 910) — he could not be sentenced without trial. The fact that the trial judge considered summary judgment as the most efficacious means to punish defendant for his conduct at court, did not authorize him to dispense with those basic guarantees required for imposing on him a sentence for the offense committed, substituting the trial to which defendant was entitled for the summary punishment which he received. And if it was not an offense, —aside of contempt — he could not be sentenced to any term at all for an act which was not punishable. Even if his con*594duct would have constituted at that time the offense of attempt to escape, the maximum penalty would have been, in addition to the original sentence and pursuant to the statute then in force, of from one and a half month to six months in the penitentiary. Instead, the court sentenced him, by way of reconsideration and without a trial, to a term of from four to five years in the penitentiary, which he added to the sentence of from three to five years which he originally considered proper for the petitioner.
For the foregoing reasons, I believe that the sentence of from seven to ten years imposed on reconsideration, is void and that since petitioner has already served the original term of from three to five years, he is entitled to be discharged.