People v. Arzola

35 P.R. 670

• Court: Supreme Court of Puerto Rico
• Decided: July 13, 1926
• Docket: No. 2777
• Status: Published

Opinion

■Mr. Justice Hutchison

delivered the opinion of the court.

Defendant was convicted of carrying a weapon and objects on appeal that an assistant district attorney is without power or authority to formulate, sign and present an information over his own signature without using the name of the district attorney. The only authority cited in support of this proposition is 22 R.C.L. 372 and 373, and Gibbons v. Picket, 31 Fla. 147, to the effect that in some jurisdictions a deputy must sign and act in the name of his principal.

The Fiscal of this court on the other hand relies upon People v. Rivera, 9 P.R.R. 363, and People v. González, 9 P.R.R.. 418, as holding that the official character and status of a de facto fiscal can not be questioned by a defendant on appeal from a judgment of conviction in a criminal case.

In ‘5 Corpus Juris ait page 1328, after defining the word “assistant” it is said that “the word is susceptible of considerable variety of meaning, to be made definite in each, case by the aid of the context, the circumstances, and other materials of interpretation.”

Among other interesting examples of the difficulty involved in any effort to formulate an accurate definition sufficiently comprehensive to include and control all cases, regardless of the rules of statutory construction, we have examined the cases of Naill v. State, 59 Tex. Cr. 484, 487; Freeman v. Barnum, 131 Cal. 386, 390, and Murrey v. State, 48 Tex. Cr. 219, 220, all of which are cited in the foot-note, volume and page ut supra.

Sections 5 and 6 of an act entitled “An Act to abolish the District Court for the Judicial District of Ponce as at present organized; to create a new District Court for the Judicial District of Ponce, and for other purposes,” Laws of 1925, page 970, .read as follows:

“Section 5. — The said court shall have a prosecuting attorney, an assistant prosecuting’ attorney, a' secretary and a marshal, all of whom shall be appointed by the Governor with the advice and consent of the Senate, for a term of four years and until their successors . shall have been duly appointed and qualified.

“Section 6. — The deputy-secretaries and deputy-marshals shall be appointed by the secretary and the marshal, respectively, with the approval of the Attorney General, and the stenographers and other employees of the court shall be appointed by the judges thereof.”

By tbe terms of section 5 the assistant prosecuting attorney is made an officer and a component part of the court as distinctly and as specifically as are the secretary, marshal and prosecuting attorney himself. "Where the Legislature intended to provide for the appointment of deputies it used the word “deputy” as the usual obvious and ordinary way of indicating that intention. The deputy-secretaries and deputy-marshals referred to in section 6 are to be appointed by tbe secretary and tbe marshal, respectively, with the approval of the Attorney General, but not for a specified term. The assistant prosecuting attorney, on tbe other hand, is to be appointed by tbe Governor and for a term of four years, and to this extent at least is placed apon tbe same level with the secretary, marshal ¿nd district attorney. Again, the stenographers and other employees of the court are to be appointed by tbe judges thereof. Here ample provision was made for any clerical assistance that might be needed by tbe prosecuting attorney.

In the circumstances we are constrained to hold that the Legislature did not intend to provide for an assistant prosecuting attorney in tin; sense of a mere clerk, deputy or clerical assistant, but did intend to create a new office, the incumbent of which is a public officer subject only to the supervision and control of the prosecuting attorney and with all the powers and duties of a district attorney in the preparation, prosecution and management of cases entrusted to him by his 'superior.

The other questions soug’ht to be raised in the brief for appellant do not demand serious consideration.

The judgment appealed from must be affirmed.