dissenting.
San Juan, Puerto Rico, July 14,1967
I dissent because I believe that the second information filed in this ease1 does not constitute “another prosecution” to which Rule 67 of the Rules of Criminal Procedure refers.2
Rule 64 (n) stems from § 448 of the Code of Criminal Procedure, 34 L.P.R.A. § 1631. This section was taken, in turn, from § 1382 of the Penal Code of California, such as it existed at the outset of the century.
The terms established in § 448 of the Code of Criminal Procedure were of (1) 60 days, after defendant was held for the filing of the information, and (2) 120 days, after the filing of the information, for the holding of the trial. In either premises no distinction was made as to whether or not defendant was arrested. Rule 64 (n) does make a *243distinction, and to that effect, when the defendant is detained it fixes shorter terms than those in cases where the defendant has not been detained.
By virtue of the provisions of § 452 of the Code of Criminal Procedure (34 L.P.R.A. § 1635), the dismissal of a case for the reasons stated in §§ 448 to 452 of said Code barred another prosecution for the same offense, if the latter was a misdemeanor; but not so in case of a felony. See People v. García, 70 P.R.R. 210 (1950).
Since the effectiveness of the Code of Criminal Procedure in the year 1902 (the prosecuting attorneys were considered by § 13 of said Code as magistrates), and until July 25, 1952, effective date of our Constitution, the magistrates and the prosecuting attorneys had the power to determine probable cause, issue warrants of arrest, and fix and admit bail. People v. Superior Court, 75 P.R.R. 501 (1953).
Since July 25, 1952, the prosecuting attorneys were divested of said powers. López v. Superior Court, 79 P.R.R. 470 (1956); People v. Superior Court, supra. Such powers remained only in the hands of the judicial power, that is, in the hands of the magistrates. Not having such powers, the court was not obliged (as before) to order the clerk to issue a warrant of arrest against defendant as soon as the prosecuting attorney formulated the information charging the former with a public offense and filing the same. In order that the magistrate order defendant’s arrest it was necessary to show the existence of probable cause. People v. Superior Court, supra.
However, although the prosecuting attorneys were no longer magistrates, and could not issue warrants of arrest or perform any judicial function, they still had power to determine the existence of probable cause to file informa-tions. People v. Quiñones, 76 P.R.R. 894 (1954). In order that the prosecuting attorney could file an information it was not necessary for a magistrate to determine probable *244cause for the arrest, that is, the prosecuting attorney co’uld accuse without a previous determination of probable cause to arrest. People v. Ortiz, 76 P.R.R. 241 (1954).
It follows then, that until July 30, 1963, effective date of the Rules of Criminal Procedure, and. particularly .until Rule 23 of the Rules of Criminal Procedure went into effect on July 1, 1964, and by virtue thereof the requirement of the preliminary hearing before the filing of the information by the prosecuting attorney was established, the' latter could file an. information without taking any step, action or previous proceeding. Therefore, until then, the practice of the prosecuting attorney to file a new information was justified at law when the motion to dismiss was granted on the ground' that the first information had not been filed within the. 60' days after the arrest of summons, since actually, the new' information constituted then one of .the two forms óf “any other prosecution” to which § 452 of the Code of Criminal Procedure then in force referred. Arrest constituted, the other form. People v. Superior Court, 84 P.R.R. 22 (1961); People v. Capestany et al., 37 P.R.R. 547 (1928); People v. Rivera et al., 9 P.R.R. 363 (1905).
The situation previously set forth necessarily changed when the Rules of Criminal Procedure went into effect and particularly Rule 23 thereof. At the present time when a person is arrested under the circumstances prescribed by Rules 11 and 12 he must be taken without delay before a magistrate and forthwith file a. complaint, and a warrant of arrest or summons may be issued, pursuant to Rules 6' and-1, by virtue of the provision of Rule 22. Otherwise, he may not be arrested except by -filing a complaint and the determination of probable cause as provided in Rules 5, 6 and 7. Lastly, the complaint and the warrant of- arrest or summons shall be remitted to the corresponding section and part of the Court of First -Instance in cases of felonies for the purpose of holding the preliminary hearing-provided in Rule -23 *245to determine whether there is probable cause to believe that an offense has been committed. It having been determined that there is probable cause, the magistrate shall forthwith hold the person to answer for the commission of the offense, and it is then, and only then, that the prosecuting attorney may-file the appropriate information. Rule 24(b).
In Pérez Vega v. Superior Court, 93 P.R.R. 730 (1966) we said that: “Rule 34(a) is a definition of the information but it does not seek to establish limitations to the prescription of the offense. It can hardly be maintained that the machinery of the State is not set in motion against the accused until the day on which an information is formally filed and that nothing happens during the steps preceding determination of probable cause and arrest.”
. As we have previously shown, after the Rules of Criminal Procedure went into effect the criminal prosecution of a felony may not commence with the filing of the information, since before reaching said stage of the proceeding they should have (1) filed a complaint; (2) issued warrant of arrest; (3) remitted the complaint and the warrant of arrest to the corresponding section and part of the' Court of First Instance; and (4) held the preliminary hearing. Therefore, when the information is dismissed for failure of having filed it within the 60 days of the arrest or summons, another information may be filed for the same offense but only by means of the “commencement” of another prosecution in the manner we have just recited.
In the case of People v. Superior Court, 94 P.R.R. 56 (1967), we stated that:
“The record does not show the existence of a situation under Rule 64 (n), and even though the court sought to act under it, the record would evidently show the presence of good cause for any delay. Likewise the court did not have power to authorize the interruption of prescription terms. Although the order of June 25, 1964 declaring defendant fugitive from justice men*246tions as interrupted any term invoked by the defendant pursuant to the provisions of Rule 64, the judgment object of this petition does not specify which prescription the court refers to. If it refers to that of Rule 64(n) [italics in the original], it was unnecessary to so provide because once the dismissal of the information is ordered, the new prosecution for the same offense is begun, if a felony. If it is a misdemeanor the dismissal definitively precludes new prosecution. — Rule 67.” (Italics ours.)
It is argued that according to Rule 66 of the Rules of Criminal Procedure the filing of a new information was proper in this case. We are told that the decision in People v. Superior Court, 94 P.R.R. 56, does not have the scope we have attributed to it, but the scope sought to be attributed is not stated.
We conclude that Rule 66 is not applicable to the circumstances of the case at bar. In relation to motions to dismiss the information, complaint or any charge thereof, this Rule establishes that:
“If the motion is based on a defect in the information, complaint or bill of particulars curable by amendment, the court shall order the amendment to be made and deny the motion. If the court should grant a motion based on a defect in the institution of the prosecution or in the information or complaint, it may also order the defendant to be held in custody or that his bail be continued for a specific time, pending the filing of a new information or complaint. Nothing contained herein can affect the provisions for prescription terms.” (Italics ours.)
Said Rule stems from §§ 147, 148, and 157 of the Code of Criminal Procedure (34 L.P.R.A. §§ 333, 334, and 368) which in turn stem from §§ 997, 998, and 1008 of the Code of Criminal Procedure of California.
Sections 147 and 148 of the former Code of Criminal Procedure were in Chapter 21 of said Code. Said chapter established (§§ 145-149) that an information charging a *247felony not signed and verified by the prosecuting attorney shall be dismissed by the court.3 Said §§ 147 and 148 are related to the hearing of the motion to that effect, the corresponding order and with the order of the court for the filing of a new information.
In People v. Barbosa, 34 P.R.R. 106 (1925), an information was filed and it was dismissed because more than one hundred twenty days had elapsed without defendant having been brought to trial. A new information was filed and the defendant moved for its dismissal by reason that the court failed to order, in dismissing the first information, that a new one be filed. Based on § 148 of the Code of Criminal Procedure appellant alleged that in the absence of said order the prosecuting attorney was not empowered to file a new information. We pointed out in said case that “Section 148 of the Code of Criminal Procedure, relied upon by the appellant, is not applicable. It does not refer to the dismissal of a prosecution, but to the quashing of an indictment when the court orders that a new indictment be filed and the defendant remains in custody or on bail.” See also, Falero v. District Court, 39 P.R.R. 426 (1929); and People v. Maldonado, 38 P.R.R. 317 (1928). It is evident, then, that said section was not applicable in cases where the information was dismissed for having failed to file it or to hold the trial within the term prescribed by law.
Section 157 of the aforementioned code stated that an order allowing a demurrer is a bar to another prosecution for the same offense, unless the court is of the opinion that the objection on which the demurrer is allowed may be brought in a new information and directs the same to be filed. As we see, this section referred to an order allowing *248a demurrer and not to the dismissal’for having, failed to file information or to hold the trial on time.
'From the origin of the afore-cited Rule 66 and from the afore-cited case law it is justified to conclude that said Rule does not contemplate the situation at bar. Assuming that it did, it would have to be construed together with Rule 67 and the latter is clear as to the fact that the proper thing is the commencement of a new prosecution. So that if pursuant to Rule 66 the alleged offender was subject to the filing of a new information, the latter would only be proper as a result of the previous commencement of a new prosecution. (Rule 67.)
Rule 66 provides that nothing contained therein can affect the provisions, for the prescription terms. Said provision, being couched in general and broad terms, leads us.to conclude that the provision in Rule 66 is limited to the case of defects in the presentation or institution of the prosecution or in the information or complaint, and that it does not cover or govern or affect, in any manner whatsoever, the case of a dismissal of the information by reason of the prescription provided in Rule 64 (n).
If we sustained the Solicitor General’s position, we would confront the situation that if' for the first information the term of 60 days had elapsed, at the time of filing the second information said term must have necessarily elapsed unless it was not applicable to a second information. (See Falero v. District Court, supra; People v. Ruiz, 58 P.R.R. 641 (1941); People v. Comas, 75 P.R.R. 388 (1953) ), or unless for the second information the term was counted from the arrest or summons.
. To sustain the Solicitor General’s position would be to belittle Rule 64 (n) (2) since the practical effect would, be its elimination because once it is violated the only proper thing to do is to wait for the day when the motion in question is to be presented and file a new information. Or as *249soon as the prosecuting attorney realizes that he cannot file the information in time instead of preparing one copy of the information he prepares two, files one untimely and when the motion of dismissal is presented he files the other copy.
In the case of People v. Lugo, 58 P.R.R. 185 (1941), we stated that the prescriptive term of three years that limits the exercise of a criminal action in felony cases, set out by § 78 of the Penal Code (33 L.P.R.A. § 232) with the exceptions therein stated, is not interrupted by the arrest or arrests performed for the purpose of another or other infor-mations for the same offense, which were filed away because the trial was not held within the term fixed by the law. To the same effect see People v. Superior Court, 94 P.R.R. 56; People v. Superior Court, 84 P.R.R. 22 (1961). We have also decided that the prescriptive period is interrupted by the commencement of the criminal prosecution. Pérez Vega v. Superior Court, 93 P.R.R. 730 (1966); People v. Superior Court, supra. If in the case at bar it were enough to file a new information or to file the same which had already been filed, we would have to confront the following problem: The second information having been filed and for the purpose of the prescription of the offense, what arrest will interrupt said prescriptive period? Not the arrest which followed the facts charged in the dismissed information, because the first information having been dismissed, said arrest, as we have decided, does not interrupt the prescriptive period. Would it be interrupted then by the filing of the new information? In Pérez Vega, supra, we stated that the filing of the information does not interrupt said prescriptive period.
In view of the foregoing we believe, contrary to the opinion of the majority of the court, that prior to the filing of the second information, it was proper to file a complaint and issue a warrant of arrest or summons against appel*250lant as well as the holding of the preliminary hearing pursuant to the provisions of Rules 5, 6, 7, 23, and 24 of the Rules of Criminal Procedure and that, therefore, the first information having been dismissed “another prosecution” should have been properly commenced. As it was not done we should have reversed the judgment rendered in this case.
In People v. Superior Court, 84 P.R.R. 135 (1961), we said that a criminal prosecution in a Superior Court is commenced by the filing of an information. This does not mean that the criminal prosecution was necessarily commenced then, exclusively, with the filing of the information, but that that was the manner to commence it in the Superior Court.
Rule 67 of the Rules of Criminal Procedure provides that: “An order granting a motion to dismiss is no bar to another prosecution for the same offense unless the defect or objection is incurable, or unless, in a misdemeanor, said motion is granted on any of the grounds enumerated in Rule 64 (n)
The present Rule 64(e) of the Rules of Criminal Procedure establishes as grounds of motion to dismiss “That the information or complaint has not been duly signed or verified.”