San Juan, Puerto Rico, April 24, 1967
On September 2, 1965 appellants José Soto Zaragoza and Carlos. Palacio Amador were charged in a single information, with having, on May 6, 1964, had in their possession and control material related to the illegal game of bolita. They were tried and found guilty on February 8, 1965- and each one was sentenced to serve one year and a half in jail.
A careful examination of the record convinces me that there is sufficient and competent evidence at law to support these convictions, at least, as long as People v. Seda, 82 P.R.R. 695 (1961), is the case law of this Court.
*341The evidence for the prosecution is not unreal or intrinsically incredible. What this undercover agent said he saw, according to his sworn statement, he could see at a distance of two feet. This evidence was not contradicted. On the contrary, his testimony that the place was in front of Palacio’s house at No. 210 of Merhoff Street was corroborated by a witness for the defense.
Likewise it is not an unreal and intrinsically incredible fact that he saw the lists at a distance of two feet although there was no light in the automobile. The facts occurred at 6:00 p.m. more or less. He took judicial notice that on May 6, 1964 the sun set in San Juan at 6:47 p.m. It was on the horizon for three quarters of an hour longer and evidently it was in the daytime, artificial light not being necessary in order to see.
The evidence, which is not unreal or incredible by itself, is sufficient to convict, under the continuous line of affirming judgments based on Seda, if the same was believed by the trial judge, as he actually did, after settling the conflicts therein.1 Although the function of giving or not giving credit to a particular oral testimony is a prerogative of the trier, an examination of the record and of the evidence for the defense — an alibi — does not convince me that the trial judge exercised such prerogative in such an unnatural and merely capricious manner. The documentary evidence admitted in nowise proves that at the time the crime was committed *342appellant Soto Zaragoza was in a cockpit, nor that he had been there all that day. On the contrary it establishes that the cocks supposedly owned by the appellant and which were matched were registered and matched as belonging to another person, one of the witnesses for the defense, as the latter himself testified.
Defendant Palacio did not even bring that evidence of alibi, or any other to contradict the evidence for the prosecution.
The majority points out “that the defense of alibi substantiated by parol and oral evidence had been timely notified to the prosecuting attorney, and although the prosecuting attorney had knowledge of the defense sought to be established, and of the evidence on which they intended to base said defense he did not present evidence of rebuttal either, or contradict it in any manner whatsoever.” In a footnote it is stated that the defense notified the prosecuting attorney, on December 23, 1964, of a motion for the summons of the person in charge of the record division of the Parks Administration with the records of the cockfights held on May 6 in Gallera San Andrés.
Aside from the fact that defendant Soto Zaragoza’s evidence of alibi is not of such conclusive nature in itself to require evidence of rebuttal not to be believed, as it was not by the trial judge, let us see the record.
The information was filed on September 2, 1964. Defendant was arraigned on September 21. On November 6 defendants filed a motion stating:
“That in compliance with Rule No. 74 of the Rules of Criminal Procedure of Puerto Rico defendants inform this court as well as the prosecuting attorney, that their defense will be alibi.”
Defendants do not offer any information as to alibi therein.
At a hearing held November 16, 1964, the prosecuting *343attorney insisted that the defense produce information as to said alibi, where the defendants were on that day, what they were doing, what witnesses they had to prove those facts, and all the circumstances therein. The defense firmly refused to give the information and the court sustained it and denied the motion of the prosecuting attorney. So, the prosecuting attorney cannot he blamed for having failed to prepare his rebuttal for said evidence nor can contrary inferences to his case be derived therefrom.
On the other hand, the testimony of the two witnesses to support the defense of alibi was hazy and vague as to those questions which the prosecuting attorney asked for the purpose of provoking an opportunity for summoning witnesses for rebuttal. The motion to summon witnesses with reports related to the cockfights of May 6 gave no information. As a question of reality the document produced by said summons gives no information either. It is a slip of paper without a signature, where neither the name of Soto Zaragoza nor that of Palacio appear, nor does it contain any information to show the presence of the latter on that day at the cockpit mentioned therein.
In this case appellants are acquitted through the Court of Second Instance assuming the role reserved to the lower court to pass on the credibility of the evidence and settle the conflict therein, such prerogative of the trier as exercised by him being annulled herein.
For the legal reasons and the juridical rule which I set forth in my dissenting opinion in the case of People v. Bermüdez Pérez, post, p. 345, and which I take as reproduced, I dissent also in this case.
I accept that there may be situations in which the evidence for the prosecution is so inherently incredible or is so vitiated with unreality that it should not be ground for conviction. This case does not present such a situation.
*344It causes deep concern that the time may come when appellants in general, in view of the precedent established in this case, People v. Ayala, Ruiz, 93 P.R.R. 686 (1966), and others recently decided under similar circumstances, although without expressing the grounds, might claim the right, in the exercise of a function now assumed in second instance to pass on the credibility and settle the conflicts of the oral evidence, that the court annul that function as has been exercised by a jury, which is but another trier of the facts, unless it is intended to establish a separate rule for the bolita cases.
I accept that the Court is not irrevocably bound by rules previously established. If a rule is to be substituted or modified it should be replaced by another rule in order that the trial judges may have a clear principle of law to apply. They are not the ones who, in the exercise of their normal function of weighing and believing or not believing the evidence, have placed defendants in bolita cases in a “situation of evident disadvantage.” They were placed in that position, if they are, by the sufficiency of evidence at law to convict rule, which this Court established in the Seda case. Until then the trial judges did not convict on the sole testimony of the agent, without more. On the contrary, the absence of any other evidence has been constantly justified or sanctioned in an unalterable line of decisions for several years, which followed Seda, and until recently, on the ground that the undercover agent system requires it to be so.
I do not sanction the existence of a state of law in which the citizen accused is in an acknowledged situation of evident disadvantage in the proceeding in which his innocence is involved. But obviously the trial judges must now encounter a rather perplexing situation in their role of judging, faced with an evidence which is reportedly sufficient and competent at law on the one hand, and on the other hand, with criteria *345of weighing and credibility in the subjective process of judging, which are no longer theirs, but those of the justices of this Court. I do not believe this is the proper solution.
Whatever the prevailing opinions as to whether the persecution of the bolita game contemplates a social purpose or not, and whether other means to confront the problem of this game or the manner to persecute it, should be devised or produced, it is up to the Legislative Power to determine it. In the meantime the public policy which the Judicial Power must enforce up to the present is that contained in Act No. 220 of 1948.2
The agent said he was wearing mechanic’s dungarees and pretended to he a mechanic who was “helping a young man who owns a mechanics shop on that street.” On cross-examination he said he worked three weeks as a mechanic in a shop which he said belonged to the Sanjurjo brothers. The witness for the defense, Alberto Sanjurjo, testified that he had a tinsmith and painting shop at 203 Merhoff Street; that he had met the agent when he was a policeman, before he was a policeman and that he had painted a car for him. He stated that the agent did not work for him in said shop as an employee or without pay. He had been defendant Palacio’s neighbor for fifteen years. The judge settled the conflict of credibility on a collateral fact brought for the purpose of attacking the credibility of the agent.
The information in this case charges a crime. Section 4 of Act No. 220 of 1948 punishes the possession of material connected with the bolita game.- If it is charged that the material is connected with the illegal game, it is logically susceptible to be used in the same. Rules 38 and 64(p) of the Rules of Criminal Procedure afford defendant, under § 4 of Act No. 220, a mechanism to defend himself of the possession of innocent material by requiring the prosecuting attorney to present a bill of particulars. If the bill of particulars does not reveal prohibited material, the information is dismissed under Rule 64 (p).