with whom Mr. Justice Sipre concurs, dissenting.
The public policy enunciated by the Legislature in Act No. 295 of April 10, 1946 (Sess. Laws, p. 758), as amended by Act No. 176 of May 4, 1949 (Sess. Laws, p. 552), is based on norms sanctioned by modern penology and it is intended to achieve, through the individualization of the penalty by individual treatment methods, the rehabilitation of the delinquent for the purpose of returning him to society in such a condition as to enable him to live harmoniously without manifestations of maladjustment. To accomplish this purpose, it is necessary for the indeterminate sentence to provide a reasonable margin of fluctuation between the minimum and the maximum.
The margin of fluctuation between the minimum and the maximum which the lawmaker has left to the discretion of the courts, within the terms prescribed by the penal laws for each offense, must not be so narrow as to actually exclude the intervention of the body to which the lawmaker delegated the administration and execution of that part of the penal rehabilitation, put into effect through the Indeterminate Sentences Act and the Act creating the Parole Board. To *142impose such a high minimum as to prevent the Parole Board, pursuant to its own statute, from assuming jurisdiction over the delinquent for the purpose of carrying out the rehabilitation function entrusted to it, truly defeats the purpose of the Act.
Judges have discretion to impose the minimum and the maximum so long as they stay within the minimum and the maximum penalty provided by the penal laws, but such discretion cannot be exercised in violation of the legislative intention. An indeterminate sentence which does not conform to the statutory norms on reasonability of fluctuation between the minimum and the maximum, such as that imposed in the case at bar — 20 to 25 years — defeats the legislative intention and is, in my opinion, void or at least voidable, and, notwithstanding the fact that its execution has begun, it may be set aside, as it was by the respondent judge in the instant case, and another rendered instead, conforming to the statutory standards, as was also done by the judge in imposing a new penalty of 10 to 25 years.
In Vázquez v. Rivera, 70 P.R.R. 203, we stated that "the purpose of the Legislature in providing for indeterminate sentences may be thwarted by trial judges who fix the minimum term at slightly less than the maximum,” but that “we cannot rewrite our statute to conform it to a policy which the Legislature has not adopted.” I believe that this dictum was, within the issue posed in that case, unnecessary and, hence, erroneous. The Legislature clearly expressed its policy in the Statement of Motives contained in the amendment by Act No. 176, approved May 4, 1949, and laid down the rule which will govern the imposition of the penalty, in order that its intention be carried out. I do not believe that an action of the judicial power, in the exercise of its independent but coordinate function as one of the three branches which make up the power of the State, is valid, sound, or proper if it defeats the purpose and public policy *143of a valid action of the legislative power performed in the legitimate exercise of the public function, also appertaining to it, in that integration of powers. We cannot conceive of a result which is so manifestly contrary to the altogether evident purpose of the legislation under consideration.
In my dissenting opinion in Santiago v. Warden, 74 P.R.R. 578,1 stated my view on the social function of criminal justice where the individual is convicted and the judge is about to pass sentence. It is well to reproduce here the views stated at pp. 591 and 592:
“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 which 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 *144ready 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 Grime 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 Laiv, 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.”
Having thus expressed my view on the invalidity of the original sentence imposed herein, I am of the opinion that the respondent judge acted correctly in setting it aside and imposing the new one challenged herein. ■