dissenting.
I am well aware of, and now ratify, the language and views which this Court copies at the end of its opinion in the instant case, citing from Batalla v. District Court, 74 P.R.R. 266. The incorrectness of the premise on which this Court bases the reversal of the judgments — notwithstanding the law is correctly stated in other respects — renders untenable the legal theory supporting the reversal., .The incorrect premise to which I refer is that the conspiracy between Castro, Palóu and Batalla ended, as respects the latter, with the fire.
Notwithstanding the fact that the evidence on Batalla’s physical condition three days after the fire, relating to burns and injuries, was admissible because “it tended to prove that Batalla had received [such] burns and injuries at the scene of the fire,” the conclusion is reached that the testimony to the effect that Batalla “was poorly dressed, in a disheveled condition, had not shaved for at least three days, was taking penicillin and was walking on the road near Sabana Grande,” was inadmissible, inasmuch as “this part of the testimony evidently tended to prove that Batalla had run away after the commission of the crime,” and that “Batalla’s role in the common design, as far as the record discloses, had been completed when the fire'occurred”; that “if the *649insurance was to be collected, that had to be done by Palóu and Castro, the beneficiaries,” and that “Batalla’s apprehension near Sabana Grande three days after the fire was not an act, either in furtherance of or concerning the conspiracy.”
None of the cases cited by the Court in support of such conclusions, including Krulewitch v. United States, 336 U. S. 440, 93 L. Ed. 790, is applicable here, simply because the purpose of the conspiracy herein did not end'with the fire. The common design was meant to defraud the insurance company through the destruction,, by means of fire, of the insured merchandise. The fire was the means to an' end. The purpose of the conspiracy was not achieved by the fire alone. . It was necessary to hold secret the intentional character of the fire. There is no .legal rule or case law which would grant or authorize protection to a co-conspirator against statements or acts of another co-conspirator where the objective of the common design is still under . way, even though it may fail. I do not refer to Batalla’s confession before the Prosecuting Attorney which was neither offered in evidence nor is involved in the instant case. I refer to the evidence found inadmissible by the Court, in that Ba-talla, upon arrest, “was poorly dressed, in a disheveled condition, had not shaved for at least three days, was taking penicillin and was walking on the road near Sabana Grande,” which tended to establish Batalla’s disappearance from the scene of the fire. In my opinion, that evidence was admissible since Batalla was not, up to that moment, a “confessed conspirator.” He knew that the purpose of the conspiracy was not to kill by. means of fire, or to destroy the building itself. It was to defraud the insurance company through the destruction of the insured merchandise by a fire which was supposedly casual. .In strict law, his role of conspirator had certainly not terminated with the fire. His fleeing and hiding — without it being a common plan between him, Palóu and Castro — tended to avoid,. or. at least delay, *650the discovery of theintentional character of the fire, and therefore enabled Palóu and Castro, if the fire • was not discovered by other means, to achieve, or to take further action in order to achieve, their ultimate objective, which was to collect the insurance by fraud.
The Court correctly states the rule that a conspiracy to commit arson in order to collect insurance continues even after the fire and includes efforts to collect the insurance, see State v. Bersch, 207 S. W. 809, or until, once the intentional character of the fire is discovered, the conspiracy fails. Therefore, Batálla’s role of co-conspirator subsisted notwithstanding the fact he had played his part in the conspiracy: the setting of the fire. The character and effect of a conspiracy is not to be judged by dismembering it and viewing its separate parts, but only by looking it as a whole. United States v. Patten, 226 U. S. 525, 57 L. Ed. 333. Batalla did not lose his character of conspirator by carrying out his part in the conspiracy, if the ultimate purpose of the latter had not as yet terminated. Castro, as co-conspirator, was responsible for all that was done by Batalla in the execution of the common design and for every act that might ensue incidentally as one of the probable and natural consequences of such execution, even though such consequences were not foreseen as part of the original plot. Boyd v. United States, 142 U. S. 450, 35 L. Ed. 1077.
Since the conspiracy had not terminated at the time of Batalla’s arrest in Sabana Grande, the evidence which the Court finds inadmissible and which is treated as reversible error, was, in my opinion, properly admitted and, consequently, the challenged information was likewise correct. The case of Krulewitch v. United States, supra, decides nothing against the foregoing, for in that case the conspiracy had terminated. ■ Evidently, the legal principles and precedents applied by the Court are fundamentally correct if we were dealing with acts occurring after the termination of *651a conspiracy, to a situation of facts and of law different from that announced in the authorities, cited in the opinion.
Without examining the other assignments made by appellant,! dissent from the majority on the particular ground leading to reversal.