People v. Acevedo Feliciano

48 P.R. 730

• Court: Supreme Court of Puerto Rico
• Decided: June 28, 1935
• Docket: No. 5803
• Status: Published

Opinion

Mu. Justice Aldeey

delivered the opinion of the court.

The appellant notified the clerk of the District Court of San Juan, in writing, that he was appealing from the judgment pronounced against him, but failed to notify the district attorney, and on that ground it has been moved that we dismiss -this appeal.

The motion is opposed by the appellant, who says that altbongb it is true that no notice of the appeal was served on the district attorney, the latter is precluded from moving for sncli dismissal, in accordance with the decisions in People v. Varela, 41 P.R.R. 879, and People v. Mercado, 45 P.R.R. 727. Those decisions have no application in the instant case, as in one of them the district attorney had actual and written notice of the appeal, he having signed a stipulation with the appellant’s attorney regarding the approval of the transcript of the evidence, thus waiving any formal defect of want of notice; and in the other case, there was a written notice of the appeal which had been received by the district attorney. The.ease at bar is neither identical with, nor analogous to, those cited, as the statement which the appellant made when judgment was pronounced against him, that he desired to appeal therefrom and that he requested that hail be fixed for his release, was not equivalent to a notice of appeal, because the appeal was not taken at that time but afterwards, when written notice was served on the clerk; nor did the fact that the stenographer gave notice of his transcript of the evidence by delivering a copy thereof to the district attorney, which transcript was later approved by the judge in open court, imply any notice of appeal served on the district attorney.

Therefore, the prosecuting attorney’s motion must he sustained and the appeal herein dismissed. ■

Mr. Justice Hutchison dissentéd.