dissenting.
San Juan, Puerto Rico, June 28, 1967
Section 11 of the Bill of Rights of the Constitution of the Commonwealth of Puerto Rico provides that “No person shall be twice put in jeopardy of punishment for the same offense.” The will of the People was not that no person be punished twice for the same offense, but that no person shall be twice put in jeopardy of punishment for the same offense. The meaning of the phrase “be . . . put in jeopardy” in the juridical text is so well understood that it needs no further explanation.
Rule 144, of the Rules of Criminal Procedure of 1963, which deals with the discharge of the jury, provides that the court may order the same “. . . (d) If any error or irregularity should have been committed during the trial which in the opinion of the court precludes the jury from returning a fair and impartial verdict.” The Rule establishes that in all cases where' a jury is discharged under the provisions of these Rules, the cause may be tried again. Rule 64 establishes as ground for a motion to dismiss the information “. . . (e) That the defendant has been convicted or placed in jeopardy or has been acquitted of the offense- charged.” The motion to dismiss shall state the name under which the defendant was convicted, placed in jeopardy, or acquitted, and the date, court, and place of conviction, former jeopardy, or former acquittal.
For some time now there is a tendency in the court of first instance to have the jury discharged after the trial has reached quite advanced stages, to commence a new trial. It may be noticed in the cases which come here, and in the *125reports of this fact anticipated by the press. Possibly, it may be due to the concept being attached by the trial judges to the power conferred upon them by Rule 144. It seems that the fact that such permissible power is limited by the guarantee of higher rank of the constitutional provision, has not been properly grasped. ■ Such power may' not be exercised injuring or impairing said provision.-
More recently this Court has had the opportunity on two previous occasions to express itself on the due and proper equilibrium that should exist between both provisions, the constitutional and the statutory of the Rule. In both- cases I was called upon to express the opinion of the Court. I do not believe it is necessary now, when I speak for myself, to comment on the concepts and authorities expressed in those decisions. In the first one, People v. Arteaga Torres, 93 P.R.R. 146 (1966), the case having been submitted to the jury and the latter being deliberating, the trial court, on its own initiative, discharged the jury, on the ground that it had inadvertently passed to the latter an information in.'which the subsequency of offenses was mentioned. The case having been tried for the second time and the defendant convicted, the problem of former jeopardy arose. We upheld the trial court which dismissed the contention. Actually an error had been committed at the first trial which impaired defendant’s rights, and as a question of reality, what occurred was that the trial court granted a new trial which in all probability would have been granted on appeal by this Court.
The second case, Piñero Agosto v. Superior Court, 94 P.R.R. 193 (1967), presented a situation far more complex and delicate. Desirable rules were established for the proper protection of the constitutional guarantee, compatible with situations arising at the trial which might lead to an unjust and not impartial proceeding- for both parties. In the final balance we sustained the trial court, great importance being: *126attributed to the fact that the trial judge, if he possesses the proper sensibility, is the arbiter par excellence of when and when not, the proceeding may cease to be the fair and impartial trial which the law demands.
Under the rules already established I do not see the justification in this case to disregard the constitutional provision which safeguards against double jeopardy.
Aside from the fact that between the evidence and the information there did not exist the fatal variance between the pleadings and the evidence contemplated in Rule 38(d) of the Rules of Criminal Procedure, cf. Soto v. Superior Court, 90 P.R.R. 505 (1964) — what simply occurred was a variance as to a date in the testimonies of two witnesses for the prosecution, a usual and ordinary occurrence in any proceeding, which the jury is supposed to settle — in order that the jury be discharged under this Rule the consent of defendant is necessary.
Defendant did not give his consent. He also objected to continuing with the proceeding. As a question of strategy of the defense I do not blame him for assuming both positions. However, that the defense also objected to continuing with the trial does not excuse the trial judge from terminating it. He should have refused by overruling it, this second proposition of defendant. The ultimate responsibility of enforcing the constitutional provisions rests with the presiding judge and not with the attorneys for the parties. I do not believe that in this case the trier protected the constitutional guarantee.
I understand that this is a field in which appraising values are involved, and there may be different opinions in the evaluation of a particular situation. My opinion emphasizes the necessity of maintaining the trial judges on the alert against the rule of disregarding the constitutional provision on double jeopardy on any inconsistent ground.. *127In this case defendant was improperly put in jeopardy of punishment more than once, and therefore, I dissent.