concurring.
San Juan, Puerto Rico, June 25,1970
I fully concur with the Court' which today enforces the constitutional guarantee of a defendant to the effect that no person shall be twice put in jeopardy of punishment for the same offense. Constitution of the Commonwealth of Puerto Rico, Art. II, § 11.
On several occasions I have expressed myself against what I consider to be, in recent years a dangerous tendency of the Courts of First Instance to discharge the jurors in a proceeding before the verdict in order to start anew, said tendency product, in my opinion, of the failure to establish the proper balance between Rules 38(d) and 144(d) and (e) of the Rules of Criminal Procedure of 1963 on the one hand, and the previous constitutional guarantee on the other, without acknowledging to the latter its greater hierarchy, in the use of the power, which the aforementioned Rules allow the judges to exercise. See my statements in disagreement in Ortiz Báez v. Superior Court, 98 P.R.R. 254, 266 (1970); in *249Ríos Mora v. Superior Court, 95 P.R.R. 115, 124 (1967), and my majority statements in People v. Arteaga Torres, 93 P.R.R. 146 (1966); Piñero Agosto v. Superior Court, 94 P.R.R. 193 (1967); Soto v. Superior Court, 90 P.R.R. 505 (1964).
I hope that with today’s decision of the Court, that dangerous tendency in First Instance to discharge the jurors without taking properly into consideration the constitutional guarantee against jeopardy of punishment shall disappear. As we can see in the Opinion, this Court has duly established the standards to be followed to obtain the proper balance between what is permissible in Rules 38 and 144 and what is prohibited by the Constitution, without forgetting the idea that the former are subordinated to the latter.
Notwithstanding the foregoing, the granting of my vote in this case does not involve opinion on my part, which I reserve for the proper occasion, regarding whether or not it was a substantial error to disclose at the trial how the jurors were divided to convict and to acquit. I do not think it is necessary to. decide and express myself on that point to decide what is pertinent as to the double jeopardy.
Petitioner’s constitutional guarantee against double jeopardy was violated from the very moment when, without his consent — consent which, if existing, should be unequivocal, given in an intelligent manner, and without doubts as it happens everytime a constitutional guarantee is waived — or against his will, the jury was discharged in this case before the verdict, without this being one of those permissible constitutional situations. The fact that the disclosure constituted substantial error would not affect the constitutional question involved. The fact that it did not constitute substantial error, as decided in the opinion, would not affect the constitutional question either.
With the foregoing reservation of my opinion as to the aspect of whether or not the disclosure of the position of the *250jurors as to petitioner’s innocence or guilt constituted error, I adhere to the decision.