with whom Mr. Justice Ramírez Bages and Mr. Justice Martínez Muñoz concur, dissenting.
San Juan, Puerto Rico, October 12, 1972
I take the liberty to dissent. The carnal union between appellant and the daughter of his half-brother is precisely the relation between uncle and niece which constitutes offense under § 275 of the Penal Code of Puerto Rico since they are in the third degree of consanguinity, that is, within the degree of consanguinity in which marriages are declared void by our law. 33 L.P.R.A. § 1115; 31 L.P.R.A. § 233(2).
Said § 275 of our Penal Code provides that:
“Persons being within the degrees of consanguinity within which marriages are declared by law to be void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the peniteh-tiary not exceeding ten years.”
And, our Civil Code, of Spanish origin, declares certain marriages void, and insofar as pertinent to the instant case, it provides in its § 71, the following:
233 — Impediment to contract [marriage] CCo
“Nor can the following contract marriage with each other:
*865“2. Collaterals by consanguinity within the fourth degree/’1 .81 L.P.R.A. § 233(2). '
As we said before the defendant and the prosecutrix were uncle and niece — third degree — and no marriage took place but they had sexual relations with each other. The cause which is object of this opinion is only directed against the uncle.
Section 275 of our Penal Code is almost a copy and faithful image of § 285 of the Penal Code of California, which reads thus:
“Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the state prison not exceeding ten years.” (Italics ours.) .
In California, incestuous and void marriages are defined by § 59 of its Civil Code as follows:
“Incestuous marriages. — Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, or aunts and nephews, are incestuous and void from the beginning, whether the relationship is legitimate or illegitimate.” (Italics ours!)
Now then, when the Penal Code of California was adopted in Puerto Rico in 1902, a note which appeared in the Annotated Penal Code of said state was copied as a footnote at the foot of our § 275 (but without being an integral part of the text of said section), thing which constitutes by all means a legislative lapsus, which note is a textual copy of the provision of the Civil Code of California concerning void and incestuous marriages which we have previously cited. Said note was not part of the Penal Code of California but it was *866a mere reference, in the annotated edition of said Penal Code, to the definition of what constituted an incestuous marriage in the aforementioned state according to the Civil Code.
The aforecited provisions comprised in the Civil Code of Puerto Rico and of California on the nullity of marriages between persons within certain degrees of consanguinity are substantially similar. The most important difference lies in the fact that in our Civil Code the nullity extends to the fourth degree, while in California it extends to the third degree. Since the footnote incorporated into our Penal Code prohibits the marriage between uncles and nieces and aunts and nephews, and assuming that its purpose was to restrict the criminal punishment to relations between relatives to the third degree, the same is applicable to the instant case, the relations between first cousins remaining outside its ambit. Both provisions have in common the prohibition of marriage between uncles and nieces and aunts and nephews.
The gist of the question to be decided is whether in mentioning uncles and nieces, both in the aforementioned footnote, and in our Civil Code, is it fit to distinguish between uncles and nieces of the whole blood and of the half blood.
We think that as it was said in State v. Reedy, 44 Kan. 190, 24 P. 66, and held in People v. Womack, 334 P.2d 309, the language of the statute when it refers to uncles and nieces should be interpreted according to its common meaning2 and that common meaning evidently includes the relation in the case at bar, under the text of the aforementioned footnote of our Penal Code as well as of § 71 of our Civil Code.
None of said provisions makes any distinction whatsoever between the whole-blood or half-blood relationship between *867uncles and nieces.3 Ubix lex non distinguit, nec nos distinguiere debemus.
The case of People v. Baker, 442 P.2d 675 (1968), cited as persuasive background by the majority to sustain that the language of the note does not include the relation of the instant- case, in my opinion, should not have been followed.4 The conclusion reached in that case represents the minority opinion in the United States on this matter and it was thus acknowledged there by the court itself. See also, Sexual Inter-*868Bourse'"between Persons'-Related by’.Half Blood as Incest, note, 72 A.L.R.2d 706. Though as it is stated in the Baker ca.se, supra-, the. relations comprised within the offense of incest shall depend'upon the particular statutes of the state, even within the decisions of the states where the offense of incest is defined in a similar manner to the civil statute of California and, therefore, similar to the footnote of our Penal Code, the decision of Baker, supra, is a minority decision. In the cases of State v. Reedy, supra; State v. Guiton, 51 La. Ann. 155, 24 So. 784; State v. Harris, 149 N.C. 513, 62 S.E. 1090, where the statute distinguished between brothers and sisters of the whole blood and brothers and sisters of the half blood but not between uncles and nieces or aunts and nephews, as our footnote does, it was decided that the sexual relation between an uncle and the daughter of his half-brother was contained in the definition of incest.
.. The case of Rodríguez v. Díaz, 65 P.R.R. 266, 274 (1945), upon which the majority of this Court rests to render the opinion which is object of this dissent in which the relation between first cousins is involved, as well as the citation which is made in that case of the wise doctrine adopted in the case of State v. Couvillion, 42 So. 431 (La. 1906), has our approval. But the- Couvillion case is distinguishable from the case at bar. That case dealt with the application of a criminal statute of 1884 which punished incest between persons within certain degrees of consanguinity set forth in the Civil Code then in force in Louisiana, but which did not include first cousins. When the Civil Code of said state was amended in 1900 the first cousins were included among the relations prohibited and the aforecited Couvillion case, whose facts took place after the amendment of the Civil Code, decided that the criminal provision of 1884 never contemplated to include first cousins; The restrictive construction adopted in said case was imperative' and' we applaud it. The principle of restrictive construction followed in the Rodríguez v. Díaz and Couvillion *869cases, supra, is not applicable to the case at bar for the reasons already explained in the course of this dissent.
The prohibition against the incestuous relationship, ever since Aristotle, was considered as an obstacle against the lewd concupiscence, which would have turned the pure family love into an opportunity of practical and frantic licentiousness if such prohibition had not existed. See Diccionario de Derecho Privado 1114, Editorial Lalor, 1954. The duty to modify legislation which comprises measures of public order, as the one involved herein, which answers to the moral tradition of the Puerto Rican family institution, is incumbent upon the Legislature and not upon this Court. The judgment appealed from should have been affirmed.
On petition of an interested party, the Superior Court, for just cause, may waive the fourth degree- of consanguinity — first cousins.
Section 55,9 of our Penal Code, 38 L.P.R.A. § 11, definition 14, provides that the words and phrases must be construed according to the context and the approved usage of the language. (Italics ours.)
In our code of laws the degrees of relationship are established in the Civil Code in its provisions related to intestate succession. 31 L.P.R.A. §§ 2601 to 2609.
. In explaining- the articles of the Spanish Code concerning- the relationship equivalent to ours, insofar as pertinent, Manresa says that the relationship is the bond or relation which ties several persons among themselves, and adds that when it is established by the community of origin between the persons whom it reaches by having the same blood running in their veins, by proceeding from a common trunk or progenitor; it is called “natural” or of consanguinity; it may be legitimate or illegitimate and they may be classified, one and the other, in relationship of the whole blood or of the half blood. Manresa, Código Civil Español 94-95, §§ 916-919 (1955 ed.). ■
. . P.or the purpose of computation of the degrees of relationship Manresa comments that “in the collateral line there are always two branches, and the ' generations are to be counted in both, ascending in one from the predecessor to the common trunk, and descending in the other from that trunk to the person who aspires to succeed.” “Thus,” Manresa says, “brothers and sisters proceed from the same father or mother; the father or the mother is, then, the common trunk, from a brother to his father there is one generation or degree; brothers and sisters are then in a second degree of relationship .... Between uncles and nieces and aunts and nephews there are three degrees.” (Manresa, supra at pp. 96, 97.)
The computation as to the degrees of relationship governs without exception for all matters as specifically provided by the Civil Code. 31 L.P.R.A. § 2605. This means of course, that for the purpose of establishing the relationship between the persons whose marriages are prohibited by law, the method of computation of degrees contained in the section of the Civil Code, which we have explained, must be applied.
The decisions of the Supreme Court of the State of California rendered subsequently to the date when we adopted from said state our Penal Code only have persuasive force in this jurisdiction. See, People v. Pacheco, 83 P.R.R. 505 (1961); Corretjer v. District Court, 72 P.R.R. 704 (1951).