dissenting.
San Juan, Puerto Rico, March 2,1970
I dissent because in People v. Cruz, 87 P.R.R. 124 (1963) we stated without contradiction that “It ought to he understood, we repeat, after the decision of Ramos [People v. Ramos, 84 P.R.R. 542 (1962)] that trial judges should not commit the error [of permitting the written confession to go with the jury to the deliberation room] in the belief that the same might not be prejudicial to defendant. The prohibition of § 274 [there is a similar provision in force in Rule 140 of the Rules of Criminal Procedure of 1968] is clear and should be adhered to by the trial courts.”
In the case at bar the trial was held on January 12, 1968, five years after our expression in Cruz, and six after Ramos where we said that “In the future, we shall apply the rule thus.”
The opinion of the Court stresses that in Ramos and Cruz we refused to reverse the judgment. But in Ramos there were extraordinary circumstances. Besides being the first case in which the question was raised the attendant circumstances warranted making án exception. We expressed ourselves thus:
“. . . It should be the practice of our courts not to permit the written confession of defendant to go to the jury, after it has been read to the gentlemen of the jury when introduced in evidence by the district attorney. Such is the express provision of the code in force and as we pointed out in footnote 3, a similar *706provision appears in the new Rules of Criminal Procedure proposed by this Court. Since 1904 in People v. Reyes, supra, we stated at p. 200 ‘but in no case should the testimony or depositions of witnesses, as they are so denominated in the jury law previously cited, be delivered to them.’ (It refers to § 274 of the Code of Criminal Procedure.)
“Now, the facts of this case having been considered, was it prejudicial to defendant to allow the confession to go to the jury? Irrespective of the fact that the trial judge should have made effective the provision invoked by defendant, his failure to do so did not have a prejudicial effect on appellant, under the very special circumstances surrounding this case. We understand that it did not prejudice him, for although it is true that the jury had before them the written confession yet they also had a vivid recollection of the testimony of the different persons to whom defendant admitted the commission of the deeds. And defendant himself upon testifying affirms that this was so; that he communicated what had happened to several persons. Thus in this case, the written confession could hardly remind the jury more than the various testimonies introduced at the trial of persons to whom defendant confessed the facts, and add to this that in the written confession defendant states that the victim attacked him with a knife, an incident which is beneficial to defendant, since it inserted the element of a struggle and self-defense. So that the fact that the jury had before them the written confession which actually corroborated in part his testimony before the jury in his defense, far from being prejudicial to him, it might have conceivably benefited him. In view of these circumstances we shall not reverse the judgment appealed from though ordinarily, to allow the written confession to go to the jury, in violation of the provisions of § 274, would entail the reversal of the judgment and the granting of a new trial. In the future, we shall apply the rule thus.”
In Cruz the trial was held before our opinion in Ramos, and we have already seen what we stated in this case concerning the way we would apply the provision in the future. In fact we were giving prospective effect to our decision, that is, that we would apply rigidly the prohibition that the confes*707sion go to the jury, to the trials to be held after the date oh which we delivered the decision of Cruz, January 25, 1963.
Thus, in People v. Santos, 87 P.R.R. 593 (1963), although the trial was held before Ramos and Cruz, however, we reversed the judgment on account of the cumulative effect of three errors committed by the trial court. In People v. Couret Martinez, 89 P.R.R. 56 (1963), we pointed out that the trial had been held before we rendered our opinion in Ramos. In People v. Hernández Rodriguez, 89 P.R.R. 754 (1964), the trial was held in June 1960; in People v. Martinez Rivera, 90 P.R.R. 158 (1964), the trial was held in April 1960, and we stated so upon deciding the question; in People v. Castro Cruz, 90 P.R.R. 201 (1964), we also stated that the trial was held before Ramos and that the question involved was a sworn statement presented by the defense itself in order to impeach a witness for the prosecution; in People v. Martinez Díaz, 90 P.R.R. 456 (1964), the trial was held before Cruz; in People v. Vega Román, 92 P.R.R. 658 (1965), the trial was held subsequent to Cruz and we reversed the judgment; in People v. Cortés Muñiz, 93 P.R.R. 761 (1966), the trial was held before Cruz; in People v. Colón Rivera, 93 P.R.R. 831 (1967), only case we have affirmed, the trial having been held after Cruz, during April and May 1964, we made it clear that it did not strictly involve a confession. A letter written by the defendant was involved..
With so clear expressions as those of Ramos and Cruz we do not see what justification might be alleged for the same not to be fulfilled by the trial judges. In Cruz we clearly stated that the trial judges should not commit the error of permitting the written confession to go to the jury in the belief that the same might not be prejudicial to defendant. Certainly the one first called upon to give effectiveness to its pronouncements is the Supreme Court itself.