People v. Arrocho

33 P.R. 627

• Court: Supreme Court of Puerto Rico
• Decided: August 2, 1924
• Docket: Nos. 2287 and 2290
• Status: Published

Opinions

Mb. Chief Justice Del Tobo

delivered the opinion of the court.

On July 18, 1924, these two appeals were heard. They were argued by the attorneys for the defendants and the fiscal. Following the established practice, after a brief conference the records were passed to one of the justices for study and submission of memorandums. The memorandums were submitted and a lengthy and ardent discussion took place among the members of the court, diverse opinions being expressed concerning the various questions involved and the manner in which they should he decided. On one point all were agreed not only at the commencement of the final discussion, but from the time of the hearing, i. e, that the cases had been tried with unusual celerity. Finally, when there was no time left for writing an opinion, four of the justices agreed that the judgments should be reversed and a new trial ordered, whereupon the judgments were rendered and filed and the Chief Justice was designated to prepare the opinion of the court with the least possible delay.

Carlos Arrocho and Jacinto Clemente were indicted for having raped and murdered the girl Guillermina Rodríguez on the 20th of February, 1924.

At the beginning of the trial the following took place:

“Attorney Tizol: 1 dislike to trouble the court, but I want to object to the date of holding the trial and submit the following motion: Now come the defendants in the above-entitled case, by their respective attorneys, and respeetifully allege: That notwithstanding the objections of the undersigned attorneys the trial of this case was set for today, the 18th of March, leaving only an interval of six days from the 11th, the day on which the defendants pleaded to the indictment. That considering the large number of government witnesses listed in the indictment, the short period of time that the attorneys have had for investigating concerning the evidence for the prosecution and the manifest hostility with which they have met in all of their investigations, it has been impossible to prepare the defense in this case so as to safeguard the substantial rights of the defendants. Therefore, we move the court to postpone the holding of this trial so that there may be time sufficient to enable us to secure fully the rights of the defendants in this ease involving the most serious charge under our Penal Code.

“While this motion was being argued the court reminded attorney Tizol that he should be brief in his argument because this question had been raised previously and submitted to the court which had considered all of the reasons for and against it. The attorney protested on the ground that the crime charged was a felony and the court should be as liberal as possible.

“The district attorney opposed the consideration of the motion on the ground that the question had been discussed and’ decided by the court and also because it should have been raised at another time instead of at the commencement of the trial.

“The court overruled the motion for a continuance and the defendants took an exception, saying that they wished to state their reasons therefor. The court ruled that this was not necessary, for it was sufficient that the exception should appear on the record, and the defendants took an exception to this ruling.”

Thereupon Arroclio moved to be tried separately and the court granted the motion.

The impaneling of the jury was proceeded with and—

“While the challenges were being made the defendant challenged Manuel Colón on the ground that he had formed an opinion of the case. The court overruled the challenge for the reason that on being questioned by the court the said juror stated that he had not formed a fixed opinion of the ease and could render a fair and impartial verdict in accordance with the evidence. The defendant excepted to the ruling of the court.

“The same question was raised concerning juror Francisco La-vandera. The court overruled the challenge on the same ground and the defendant took an exception.

“The same occurred with regard to juror Augusto Bubonis. The court overruled the challenge on the same ground and the defendant took an exception.

“A similar question was raised concerning juror Manuel Román. The court overruled the challenge on the same ground and the defendant took an exception.”

After the evidence was heard the jury found the defendant guilty and on March 28th the court sentenced him to death.

On the following day Clemente was brought to trial and the following took place:

“Defendant: Reserving the right to reproduce this in writing and asking the court to pardon my insistence, I move again for a continuance of the case in behalf of the accused. Now comes the defendant in this case and by his attorney respectfully shows to the court: That in this case Carlos Arrocho and Jacinto Clemente were simultaneously charged with the crime of murder in the first degree. That when the case was called for trial yesterday the attorney for Carlos Arrocho moved for a separate trial, which I could not oppose because it is a ministerial right. T'he trial was held yesterday and the jury brought in a verdict. For this reason I am of the opinion that in addition to the reason already given for a continuance of the case there are other new reasons which compel1 me to urge the court to grant the continuance. The reasons are the following: For this trial of Jacinto Clemente and Carlos Arrocho a certain number of jurors were summoned, eighty of whom appeared yesterday before the commencement of Arrocho’s trial. When the jury who were to try Arrocho had been impaneled the judge ordered that the other jurors should remain here all day and wait for the termination of Arrocho’s trial so that they could form part of the jury who were to try Clemente. For this reason the court will comprehend that most of the jurors who are to try Clemente have been present at Arroeho’s trial and have had an opportunity to hear the evidence in that case, which is absolutely interwoven with that to be offered in Clemente’s case. The presence of these jurors in the court-room and the interest that this case has aroused in the community make me believe, with due respect, that the verdict rendered last night is known generally and particularly by the remaining jurors, and that that verdict undoubtedly will have great influence against the substantial rights of the defendant. I understand that as this court is holding a regular term, the continuance of this case would not interrupt the said term, for there is: another case set for today. I also believe that as the charge is such a seri.ous one the court should recognize the defendant’s right to be tried not only beyond the pressure of public opinion, but also beyond the legal impression that may exist in the minds of these jurors if the trial be held immediately after that of Arroeho, in which a verdict has been found which is known to everybody. Besides, it is my impression that the district attorney intends to surprise us by calling witnesses who are not in the list of the witnesses that appeared before the grand jury and whose testimony the defendant has had no time to prepare to rebut. In ease they are called I move for a continuance, not only on the grounds stated, but also so that I may have time sufficient to rebut the testimony of Pedro Rodriguez, in case he is called, for he did not testify before the grand jury.

“Judge: The court wishes to go on record to the effect that after the jury was impaneled the court excused all of the other jurors until today at 9 a. m. The court did not order them to wait for the termination of the first ease, but excused them until today.

“Defendant: It is quite possible that owing to the confusion here yesterday something' may have been forgotten. I am sure that they were not excused until last night.

“Judge: I am sure that they were excused in the morning until today. I would like to hear the district attorney.

“District Attorney: I object to the continuance of the ease of Jacinto Clemente, in the first place because the motion is devoid of merit, for there are no reasons for a continuance. First, because the trial of Jacinto Clemente and Carlos Arroeho was set to be held jointly yesterday. On motion by one of the defendants the trials were separated and Arroeho’s attorney moved that his case be tried first. The court so ordered, stating that the other defendant would be tried immediately thereafter. My point is that both eases were set for yesterday and would have been tried but for that motion. But the motion for separate trials, to which in my opinion the defendant was entitled, divided the case and the first part was tried, being Arroeho’s trial, the trial of Jacinto Clemente to be held immediately thereafter. As to the question that the jurors who were summoned for the trial of the combined case were not excused by the court until after all of the evidence had been examined, it has no basis because as soon as the jury was impaneled in Arroeho’s case the court excused the other jurors until today at 9 a. m. Within the general knowledge of the court the jurors who did not try Arro-cho were not present in the court-room because they had been excused until to'day. As to the allegation that the verdict rendered in Arrocho’s case might have some influence on the jury for the reason that in the opinion of the defendant it is known by the jury, that^ verdict will be known not only by the jury but by the whole country. As soon as it is published, if the jurors have some reason to know it today they will have much more reason to know it hereafter, because the news will have spread more as time passes. Not only the San Juan jurors but those of the rest of the Island will know about it. With regard to the belief that I intend to offer certain evidence, the court should not take this matter into consideration because it is an anticipation that my colleague has no reason to indulge. I may or may not offer that evidence. It is an anticipation that gives the court no ground to grant the continuance.. Therefore, I am of the opinion that this case is correctly set for today, according to law, and .that there is no legal reason for postponing it until another day.

“Judge: The court overrules the motion.

“Defendant: I take an exception.”

When the district attorney called witness Arturo Rodriguez the defendant insisted on a continuance as follows:

“Defendant: Tour Honor: At the beginning of this trial I made a motion for its continuance and among other reasons therefor I expressed my belief that the district attorney intended to offer evidence not included in the list of witnesses who testified before the grand jury; that it was surprise to me and that I needed time sufficient to prepare to controvert it. I was ironically criticized by my colleague, but it seems that my fancy has become a fact. We are confronted in a case of murder in the first degree with testimony of this kind, which is offered as a surprise to this party without being included in the list of witnesses, the defendant having no opportunity to defend against it and to ascertain whether it is true or not. T submit the matter to your Honor and repeat my motion for a continuance.

“Judge: The court had an opportunity to consider this matter and concludes that there are no grounds for modifying its ruling that this witness be heard.

“Defendant: I submit to the court, as an attorney, that as the witness is not included in the list of the grand jury and as the defendant was not given an opportunity to know and controvert that evidence, I am placed in a position where I am defenseless, a fact which the court should consider and advise the jury to consider, so that the jury may know that this witness is not included in the list of witnesses. Under these circumstances I will commence my cross-examination of this witness.”

Concerning challenges for canse the record shows the following:

“While the challenges were being made the defendant challenged Guillermo Morales for cause on the ground that a juror who states that he has formed an opinion and would require evidence to alter it should be excused. The court overruled the said challenge because upon being questioned by the court the said juror stated that he had not formed a fixed opinion such as would prevent him from acting with serenity and impartiality, performing his duty and giving a verdict in accordance with the evidence. The defendant took exception to the ruling of the court.

“A similar question was raised concerning juror Enrique Ubarri Casal, the defendant being of the opinion that the said juror was present at the trial of Carlos Arrocho, had heard the testimony of the physician and of the girl’s father and would require evidence to change his opinion. The court overruled the said challenge, as upon being questioned whether the fact that he had heard the testimony liad brought some prejudice to his mind so as to prevent him from giving an absolutory verdict if the evidence was insufficient, the juror replied that it did not. The defendant took exception to the ruling of the court.

“The same question was raised concerning juror Victor Rengel, the defendant being of the opinion that he had been present the day before hearing the testimony of certain witnesses and that this may have influenced his mind in some manner. The court overruled the said challenge, inasmuch as the juror declared that he had formed no opinion of the case and that he could render a fair and* impartial verdict in accordance with the evidence. The defendant took exception to the ruling of the court.

“Juror Lavandero was challenged for cause on the ground that he had formed an opinion which only evidence would change. The court overruled the challenge because the juror stated that such opinion had no weight in his mind. The defendant took exception.”

The evidence was examined and the defendant was found guilty by the jury and later sentenced to death by the court.

Both judgments were appealed from and several errors were assigned, of which we shall examine only those regarding the continuance of the trial and the challenges of the jurors for cause, as they show that the defendants were not given the fair and impartial trial to which they were entitled under the law.

In arguing the first assignment the district attorney cited the case of People v. Fredericks, 106 Cal. 554. The facts of that case may be summed up as follows: In the morning of March 23, 1894, during business hours, William M. Frede-ricks, in attempting to rob a savings bank in the city of San Francisco, killed the cashier. Fredericks escaped but was captured a few hours later. On March 28th the preliminary examination was made; on March 29th the indictment was filed, and on March 30th he was arraigned and allowed until April 2nd to plead to the indictment. On that date, the accused having refused to plead, a plea of not guilty was entered in his behalf and the case was set for trial and tried on April 5th, nothwithstanding repeated motions for a continuance made by the defendant.

The district attorney contends that that case is stronger than the cases under consideration and that notwithstanding this the Supreme Court of California held that “we do not think the mere fact of fixing the day of the trial at a time so soon after the arraignment and plea, ipso facto furnishes sufficient ground for a reversal of the judgment.”

It is true that the Supreme Court reached the foregoing conclusion, but let us consider the language used by it:

“While the period of time, to wit, three days intervening'between the arraignment and the commencement of the trial of the defendant, might be ample time in some European countries to bring to trial, convict, and decapitate half a dozen criminals, yet in this country, where judicial tribunals are organized upon a different system, and where persons charged with crime have more rights under the law, we think this defendant might well have been allowed ten, twenty, or even thirty days to prepare for his defense. In view of the enormity of the charge against him; in view of the public clamor that was pursuing him; in view of his own poverty and friendlessness, the state could well have afforded to concede him such a continuance, in order that he might have full opportunity to make his defense, however weak it may have been when made. The state would have lost nothing by such .a course, and justice would have been done just the same. ■’While the state should administer justice to law-breakers with no laggard hand, yet, at the instance of public clamor or other causes, it is beneath its dignity to act with unseemly haste.” People v. Fredericks, supra.

That the policy adopted by the Supreme Court of California in merely criticizing without reversing has not brought about the desired result, becomes evident at least in this case in which the decision is invoked to support procedure similar to that criticized.

As to whether the case is stronger, we will say that it is if the fact is considered that three days were allowed there while in this case six and seven days were allowed; but the circumstances of the crime make these cases stronger than the California ease, for in that case it was committed in a bank during office hours and in the presence of witnesses.

In the chapter- treating of rights of the accused Ruling Case Law sums up the jurisprudence as follows:

“Justice requires and it is the rule that a person charged with a crime should have a reasonable time to prepare his defense; for if the rule were otherwise, the defendant’s right to a fair and impartial trial would often 'be nullified. Of course the rule is the same when defendant’s counsel are appointed by the court, and this without being forced to a showing as to witnesses, and what is expected to be proven by them. What is a reasonable time is generally a question for the discretion of the court, and the exercise of its discretion is reviewable upon appeal.” 8 R.C.L. 67.

The text of Ruling Case Law is supported by many decisions, but we shall cite at length only that of the Supreme Court of Louisiana in the case of State v. Collins, 104 La. ; 81 A. S. R. 150. Mr. Justice Blanchard, speaking for the court, expressed himself as follows:

“While the zeal displayed by our learned brother of the district court in the prompt vindication and enforcement of the law merits commendation, we are yet constrained to hold that, in this instance, he carried it a little too far. We differ from him in his ruling denying the continuance sought.

“This was a capital case. The life of a human being was at stake and for the time being it was sheltered by the presumption of innocence. Great deliberation — an utter absence of precipitancy —should have characterized every movement of the court leading up to the conviction. ‘The law travels with a leaden heel, but strikes with an iron hand,’ is the maxim pregnant with obvious meaning. In this instance it doffed the leaden heel, yet struck with the iron hand.

“It is not unlikely that the previous attaempt at lynching and the apprehension felt by the officers of the law ’of a second attempt being made in case of delay in bringing the accused to trial, may have influenced the situation to his detriment and caused the undue haste complained of.

“But this cannot be accorded the weight of justifying departure from the rule of calm deliberation. The right ‘to have the assistance of counsel’ is one conferred by the constitution itself. Reasonable time to prepare for his defense should have been allowed the counsel, who had by direction of the court undertaken its responsibility. Only in this way could their ‘assistance’ be made effective. Theirs was a task to be discharged without recompense. They had other duties to perform in connection with the court, growing out of employment in other cases bringing them professional fees. It was not to be expected they would lay these aside and devote themselves solely to preparation for the defense of the instant case which brought them no reward. It does not seem to us that time enough was allowed for both.

“In State v. Simpson, 38 La. Ann. 23, which was a murder trial, the indictment wa.s returned into court on the 5th of October. The accused was arraigned and counsel. assigned her the same day, and the case fixed for trial on the 9th of the same month. On that day the counsel asked a continuance, on the ground that he had been assigned as counsel only four days before, and had not had time to prepare to try the case because occupied with a mass of other business.' He stated he believed there was a valid defense and that a reasonable time should be given to prepare it. He made affidavit himself to the averment of his motion. The continuance was refused. This court on appeal held it was error, and reversed the verdict and sentence. In doing- so this language was used: ‘Considering- that the offense charged was murder, that the indictment had only been filed at the same term of court, that the counsel assigned for the defense was a nonresident of the parish where the court was held, and had no sufficient opportunity to confer with the witnesses, and that the defense to be made- required great research of authorities on a question of much difficulty and intricacy, we think the judge a quo erred in overruling the motion.’

“Further along in its opinion the court, speaking of the constitutional guaranty to persons charged with crime of the right to be heard by counsel, said: ‘It would be a barren right if the counsel were not allowed a reasonable time to prepare for the defense, time to investigate the facts and to examine the law applicable to the case.’ And concluding its opinion the court said: ‘A review of the entire record satisfies us that the prosecution was characterized by undue haste scarcely compatible with the guaranty of a fair and impartial trial.’

“It is true in that case it was the counsel himself who swore to the inadequacy of the time which had been at his disposal to prepare for the defense. Here, the motion for continuance on the same ground was prepared and signed by the counsel appointed to the prisoner, but it was the latter who made the affidavit to the truth of its averments. The attorney should have made this affidavit and it was error not to have done so, but, under the circumstances of this case, we are constrained to hold that it is not sufficiently grave to warrant sustaining this verdict on that ground alone.

“In State v. Brooks, 39 La. Ann. 241, 1 South. 421, the homicide was committed on 'September 29th. The accused .was indicted and arraigned on the 4th of October following, and his trial fixed for the 9th — five days later. Definite arrangements for counsel to defend him were not made until the day before the one assigned for the trial. Application for continuance was made on the ground of lack of time to prepare the defense. It was refused. This court held it was error, laying stress upon the fact that it appeared the accused was convicted on the ninth day following the commission of the offense for which he was indicted, and that the application for continuance was made on the first calling of the case for trial.

“In State v. Deschamps, 41 La. Ann. 1051, 7 South. 133, this court reviewed the question at length and collated the authorities bearing- thereon. Application for continuance was tliere made under oath by counsel assigned to the accused. He had been appointed only forty-eight hours previous to the calling of the case for trial. He had had no sufficient time to prepare the defense. He asked the indulgence of the court for time to prepare it. It was refused. On appeal here, held reversible error: See also, State v. Boyd, 37 La. Ann. 781; State v. Horn, 34 La. Ann. 100.

“These authorities establish the rule that counsel appointed to defend persons charged with crime should he allowed a reasonable time in which to prepare for trial, and this without being forced to a showing as to witnesses, and what is expected to be proven by them. Also that what is a reasonable time will not be left entirely to the discretion of the judge, but the same is reviewable here.

“Under the circumstances of this case, the two or three days intervening between the assignment of counsel and the day of trial was not sufficient time in which to prepare to try a murder ease. The case should have been allowed to go over at least to the second week of the term.

'“For the reasons assigned it is ordered, adjudged and decreed that the verdict and sentence be annulled, avoided, and reversed, and that the cause be remanded to the court a quo to be proceeded with according to law.” State v. Collins, 81 Am. St. Rep. 152-4. (Italics ours.)

But there is more in these cases. We have transcribed the parts of the record concerning the challenges for cause. There was not included, as should have been, a literal transcript of the questions and answers. But the part transcribed was sufficient to convince one of the justices of the majority, Mr. Justice Hutchison, that the law applicable had been violated, and to create a doubt about this in the minds of the other justices, which, added to the defenseless position in which the defendants were left by the refusal to grant a continuance, definitely inclined the balance in favor of a reversal of the judgment and a new trial.

The fiscal, in arguing that the court did not err in overruling the challenges for cause, cites subdivision 7 of section 227 of the Code of Criminal Procedure and the cases of People v. Roy Wolff, 182 Cal. 728; People v. Edwards, 163 ; People v. Brown, 148 Cal. 743; People v. Walter Warner, 147 Cal. 546, and People v. Murphy, 146 Cal. 502.

Tlie facts in tlie cases cited liave been considered and they presexit situations distinct from those of tlie cases now before the court. Tlie law requires that the opinion formed by the talesman be based on public rumor, statements of the press or the notoriety of the case, and that the court be satisfied, upon this statement under oath or otherwise, that he is capable of acting with absolute impartiality and fairness in the matter to be submitted to him.

Here some of the jurors challenged in the second case formed their opinions upon hearing testimony given in the first case, and from the facts as stated it is doubtful that all of the jurors challenged in both cases came to try the defendants in such a state of mind and with such serenity of judgment as tradition, law and jurisprudence all require.

It seems proper to transcribe what Bishop says on this point. His opinion is very valuable in construing subdivision 7 of section 227 of our Code of Criminal Procedure:

“This i.s the most important of the disqualifications of the present chapter, the most delicate, and the one oftenest considered. It depends upon the unwritten law of England as existing when this country was settled, upon our constitutional guaranties of a jury trial, and upon the somewhat varying statutes and decisions of the several States, viewed in combination. And the result is that while the general principles harmonize, the minuter doctrines somewhat vary in our States.

“The Common Law Rule, — as existing when orxr country was settled j is, in the words of Hawkins, that the juror is disqualified who ‘hath declared his opinion beforehand that the party is guilty, or will be hanged, or the like.’

“With us, — since this doctrine constituted a part of our original common law, our constitutions securing jury trial render its substance irreversible either by the legislatures or the courts.

“The reason of the doctrine, as thus laid down by Hawkins, appears in the foregoing explanations of this sub-title. The juror should be indifferent and without bias. And one is not such who has already formed and declared his opinion.

“Various judicial views, and something of the legislation in our several States, briefly appear in the note.

“The differences disclosed in the note are partly of statutory and partly of judicial origin. It will be helpful both in the inter-pretings of the statutes and in the searchings for the judicial path to consider that: The jurors are men, with the common imperfections of mankind. Absolute freedom from bias, perfect mental capability, a purified understanding that moves always with the evidence and never otherwise, — these and the rest which constitute the mental and moral make-up of a perfect being have no existence on our earth. The common law rule and our constitutions must be interpreted in the light of these facts; they are their surroundings. Therefore the disqualifications of bias, to prevail, must be of some standard magnitude dictated by practical wisdom. To seek an impossible jury, consisting of perfect men, would be simply to forbid the wheels of justice to move. Again, opinion is a variable thing. But a small part of the opinions of the best men come from reason and investigation. We begin life by accepting for truth, as of course, whatever others tell us; and we end life almost in the same way. Indeed, of necessity, so imperfect is man that he must proceed thus, or let his activities stop; for it is impossible any man should investigate things so rapidly as always to see before he moves. We read our morning papers, and though we know that their contents are a mixture of truth and error, we practically accept as truth whatever we see no special reason to controvert. If we read of crime stated to have been perpetrated by Mr. Jones, we have at once what may be called .the ‘opinion’ that Mr. Jones did it. If afterward we see Mr. Jones’s guilt denied, our minds lapse back into equilibrium. And in view of the law, which is a practical thing, no juror has in reason a disqualifying opinion unless he adheres to it after the denial comes. The opinion which does not thus adhere should not be called such within the law we are considering. As to rumor, he who thus forms the adhering opinion from it is, in just doctrine, more palpably unfit to sit as a juror in the case than is he who derives it from the evidence; for no just and capable man will act thus. And still, by the opinion from rumor, which a large part of our cases say does not disqualify, is perhaps, often meant the hypothetical assumption that the defendant is guilty if the facts embodied in the rumor are true; and this sort of hypothetical bias, though not to be commended, should probably not exclude the juror who for the purposes of the trial will east aside the bias. Yet no one who, after the denial, and the issue made, clings to his prior opinion, whatever its source, that the prisoner is guilty, should be put upon the jury to try him. Nor should such juror’s belief that he can render an impartial verdict, solely upon the evidence, alter the case. A man may believe an untruth of himself, as well as of anything else; and it is not in human nature for one who has made up his mind, especially from rumor, to try the question de novo and impartially, like one who has not. And this reasoning applies as well to the unexpressed opinion as to the expressed.” TI Bishop’s New Criminal Procedure, 100-14.

Such, briefly stated, were the grounds on which the majority of this court based the judgments of the 2nd of August.

On many occasions there is in our country justified clam- or against delay in the administration of justice, both in criminal and in civil cases. This court has been constrained to dismiss many prosecutions because the defendants were not tried within 120 days. In no manner should our attitude be interpreted as favoring such delay. On the contrary, we insist and shall always insists that the judges and district attorneys comply with their duties to the limit and that the proceedings be had as speedily as possible. But such speed should be compatible with the rights involved. The grandeur of our institutions consists in that both law and practice recognize the rights of the most humble.

The court appointed counsel for the defendants in these cases. The court imposed upon them an extraordinary duty. They accepted the responsibility, but insistently asked fortune in which to comply with their obligations. Why such haste? How would the cause of justice have suffered by inquiring of counsel how much time was needed and, if reasonable, by allowing it? The serenity and firmness peculiar to the courts should not be disturbed however horrible the crime' charged and however excited public opinion may be. The' presumption of innocence accompanies the accused. The-court’s doors should be open to him without prejudice in any sense. There are at stake not only the rights of the defendant, but also those of the whole society. A bad precedent; a tolerated violation, would tend to destroy the product of centuries of work. The machinery of the' government is powerful, for it has every facility at its command. When this machinery is confronted by a man accused of a crime it is the duty of the court to see that the judicial combat be commenced, conducted and decided as far as possible without pressure; without advantage; without inequalities, and with absolute justice to both parties.

We can not resist calling attention to the attitude of the district attorney at the beginning of the second trial in connection with the testimony of Arturo Bodriguez. When a witness has not been examined by the grand jury it is not necessary that his name should be included in the indictment, but the statute providing for the inclusion therein of the 'names of all witnesses known at the time it is prepared indicates what is the spirit of the law, and the action of the district attorney in this case was clearly contrary , to that spirit.

If the defendants are guilty; if they committed the atrocious crime with whicli they are charged, let them be convicted and suffer the death penalty if proper; but they should be tried with all of the guaranties which'fortunately are recognized in this country, not as a mere fiction of law, but as a fact in practice.

Reversed and remanded■ for new trial.

Justices Aldrey, Hutchison and Franco Soto concurred. Mr. Justice Wolf dissented.