Ex parte Napoleoni

27 P.R. 788

Opinion

Me. Justice Audrey

delivered the opinion of the court.

Rafael' Napoleoni filed a petition for a writ of habeas corpus in the District Court of Mayagiiez, alleging that he had been imprisoned by order of the district attorney for that district without having committed any offense.

The said court, after having heard the evidence examined by the district attorney to justify the imprisonment of the petitioner for the crime of perjury, held that there was probable cause for the imprisonment and denied the petition, from which decision Napoleoni appealed.

Pending the hearing on the appeal the fiscal of this court filed a motion for its dismissal on the ground that it would serve no practical purpose because after the entry of the order appealed from the district attorney of Mayagiiez had filed an information against Napoleoni for the crime of perjury and he had pleaded not guilty.

The question raised by the petition and the appeal being that there is no probable cause for the imprisonment of Na-poleoni, we are of the opinion that the ground of the petition is not destroyed by the fact that the district attorney who committed the petitioner filed later in the court an information against Mm for the crime for which he had been committed, for the filing of an information by the district attorney is no evidence that there is probable canse for the imprisonment of a person, inasmuch as the district attorney may believe • that he has sufficient, evidence to support the information and yet such may not be the case in the opinion of a court, whose province it is to decide as to the existence of a probable cause when this question comes before it.

The motion to dismiss must be

Overruled.

Chief Justice Hernández and Justice del Toro concurred. Justices Wolf and Hutchison took no part in the decision of this case.