People v. Reyes Morales

Mr. Justice Blanco Lugo,

with whom Mr. Justice Ramí-rez Bages concurs, concurring.

San Juan, Puerto Rico, June 13, 1966

An examination of the record shows that in his efforts to perfect the appeal and faced with the impossibility of preparing a transcript of the stenographic record because of resignation of the stenographer who took it at the trial, the appellant himself chose the statement of facts of the case.1 To that effect, Mr. Guillermo Pierluisi contacted Mr. Diego Ramos, who had been the counsel for the defense in the trial court, but the latter could not help him because he did not remember a thing either about the incidents or evidence introduced at the trial. Faced with that new difficulty, he suggested to the prosecuting attorney to prepare the statement of facts with what he remembered of the evidence and with the statements in the record of the investigation, in order to request the court by stipulation to approve it for the purposes of the prosecution of the action.2 *613This was done. Actually, on December 3, 1963, without any objection whatever, the statement of the case was submitted and approved by order of this Court, dated May 20, 1964.

That being the situation we cannot see how the failure to state or summarize the instructions delivered to the jury can now be assigned as reversible error. It was appellant’s obligation, if he was interested, to see that anything relating to the instructions went into the statement of the case, see People v. Lafont, 54 P.R.R. 351 (1939), but he failed to do so probably aware of the provisions of Rule 10(g) of our Rules.3 He chose to remain silent. If there is a case to which the presumption of regularity of the proceedings should be applied it is this one. Cf. People v. Díaz, 5 P.R.R. 415 (1904); People v. Lugo, 16 P.R.R. 236 (1910). Furthermore, this actually does not have the importance they seek to attach to it. The reduction of the degree of the crime is not in play. In view of a death allegedly caused by poisoning, there were only two possible verdicts, murder in the first degree or acquittal. It is significant also that no defense evidence was introduced and that “the possibility of carelessness” insinuated had to find support in the only evidence *614introduced, that of The People, which included two sworn statements of appellant.

To summarize, the supposed prejudices assigned are more apparent than real. Fortunately, Rule 12.2 of the Rules of' Administration for the Court of First Instance, adopted last May 3, will prevent in great measure the repetition of a state of facts like the one presented herein.

However, as we have said, within the evidence admitted and considered by the jury, there are two statements given by Catalino Reyes during the investigation, when he was already pointed at as possible defendant. Even though in said statements the. commission of the crime is not expressly admitted, they hold sufficient incriminatory elements which, together with the rest of the oral evidence, complete the chain of facts which singled him out as guilty beyond any reasonable doubt. As this is a case which depended exclusively on circumstantial evidence, its exclusion was requested under the rule of Rivera Escuté v. Delgado, Warden, 92 P.R.R. 746 (1965), inasmuch as they were obtained without, the warning of his right to legal counsel. On that ground alone I would reverse the judgment and order a new trial.

I am authorized to state that Mr. Justice Ramírez Bages concurs with this opinion.

See Rule 208 of the Rules of Civil Procedure of 1963, and its predecessors § 356 of the Code of Criminal Procedure, 1935 ed., 34 L.P.R.A. § 1081, and § 356 of the Code of Criminal Procedure of 1902, pp. 702-703 (Rev. ed. 1902), in relation to §§ 294-300 of this former Code, pp. 688-690 (Rev. ed. 1902).

Prom Mr. Pierluisi’s letter to Prosecuting Attorney Efrain Ruiz, we copy:

“In relation to our conference regarding the case pending before the Hon. Supreme Court of Puerto Rico, I would appreciate your informing me whether you prepared the statement of facts you promised me, inasmuch as you are the only person who can do it from the testimony of the witnesses in court contained in the record.
“As I informed you, colleague Diego Ramos, who was the defense counsel before that court, does not remember anything concerning the .facts; I could hardly think of perfecting the appeal without your help. As *613I indicated to you, I am willing to accept the statement of facts you prepare, for I have the most complete confidence in your professional integrity and honesty. I pray you then, if you have not prepared said statement, to prepare and file it in court by stipulation from both of us, so that it he approved and sent up. If you wish send it to me and I shall prepare the stipulation and I will remit it to you for your signature. The Hon. Supreme Court granted me 60 days to prepare it, which term expires on November 13 of this year.”

“Where in a criminal case application is made to this Court to add to the record the instructions given to the jury in the Superior Court, such application shall be refused unless it he shown that the failure to include such instructions is due to the fault or neglect of the clerk of the Superior Court, or unless the appellant can show some effort on his part made before the transmission of the record to this Court to have the instructions reduced to writing and signed by the judge, and that such application has been refused for improper reasons.”