dissenting.
San Juan, Puerto Rico, April 2,1969.
I dissent. We have held hundreds of times that the weighing of the facts made by the trier which is based on the evidence should not be disturbed on appeal. These decisions turn into useless and empty rhetoric when we set aside, as we are doing in this case, a judgment of conviction founded on the conviction by a jury, against which it has not even been attempted to charge — because there is no ground for it— passion, prejudice, or partiality.
*180Any intelligent person, and even more, if he has a good legal training, can, if he is determined to do so, reach the conclusion he pleases with a written record. The interpretation may also show a competent analytical ability but will not necessarily do justice, which is, in the last instance, the duty of this Court.
We only have the written record before us, without any of the imponderable elements which may have exerted influence on the mind of the jury. We are not acquainted with the subtleties which were disclosed in the way the witnesses testified, in their gestures or hesitations. The multiple incidents of a criminal proceeding are not completely revealed in the record. A trial is an intense human drama, a complex of statements and'contradictions of reciprocal influences, some apparent and others real, which can be completely understood only when the evidence is considered as a whole and not merely the one which appears from the written record.
Therefore, I insist that we may disturb a verdict only when there is an absolute lack of evidence, or when the same is unimportant, or scarcely satisfactory because it is intrinsically incredible or inherently improbable. When we apply this rule to the case at bar the affirmance of the judgment is inescapable.
All that is involved in this case is whether or not appellant was identified. The determination of said fact is exclusively incumbent upon the jury. There was evidence of the identification of the accused, as it is inferred from the summary of the evidence transcribed in the opinion of the Court itself. It was believed by the jury. We cannot disregard the fact that two witnesses for the prosecution, by reasons we do not know, altered their testimony. One of them was convicted of perjury. The third witness, Agustín Luna Roque, testified that he saw appellant with the revolver in his hand while he was running to get away from the place. He persisted in his testimony despite the strong and clever cross-examination to *181which he was submitted by the defense. However, the opinion of the Court concludes that there was reasonable doubt as to the identification of defendant. Whether or not there was reasonable doubt was a question exclusively incumbent upon the jury and not upon this Court on appeal. Few judgments of conviction would prevail if we reverse so thoughtlessly, as we are doing in this case, because there is a discrepancy as to reasonable doubt between this Court on appeal and the trial judge.
The first and fourth errors1 which charge the trial judge that he injured defendant’s right to a fair and impartial trial in making certain statements before the jury2 also deserve a comment. We have read and reread the record carefully. We note on more than one occasion the true effort of the judge to discover the truth. It cannot be disregarded that two witnesses for the prosecution unexpectedly altered their testi*182mony, answering repeatedly with evasions. There is nothing more injurious to the honor and dignity of a court than an openly perjured testimony. Before this situation, it was not only lawful but indispensable for a good administration of justice, that the judge would have made an effort to clarify the facts. His intervention for those purposes should be reason for praise and not for censure. The judge is under the obligation in the exercise of his high ministry of guiding the procedures with confidence and firmness defending the respect, the dignity, and the honor in the administration of justice. That is the only way that confidence in the judicature may be inspired and its prestige in the community preserved.
The majority opinion does not make reference to these errors since it was unnecessary in view of the conclusion it reached.
It refers principally to the following incident which appears at page 31 Tr. Ev.:
“Judge:
Q. Is that man you know as Bullín a human being, a ghost, a negro, a white man? '
A. The name.
Q. How was that man you know as Bullín, was he a white or a colored man?
A. As I saw him in my own way he was a tall skinny man.
Judge:
You may proceed prosecuting attorney.
Judge:
Q. Are you over 18 years old?
A. Eighteen.
Q. Eighteen already?
A. Yes.
Judge:
Pine. Marshal bring me the Penal Code. Proceed.
Mr. Andréu Ribas:
Let us ask the jury to withdraw.
Judge:
Of course. Withdraw the jury. (The jury withdraws from the courtroom.) ”