People v. Cabrera

47 P.R. 174

• Court: Supreme Court of Puerto Rico
• Decided: July 11, 1934
• Docket: No. 5166
• Status: Published

Opinions

Me. Chief Justice Del Tobo

delivered the opinion of the Court.

The defendants are prosecuted for- the commission of the offense defined and punished by Section 471'of the Penal Code, under the charge of wilfully selling to their son Santiago Cabrera two rural properties which they had already sold to Heirs of Huertas González, with the intent to defraud said previous purchaser.

The defendants pleaded not guilty and moved for a jury trial. At the hearing held on February 9, 1933, after offering evidence to show the original sale, the Prosecuting Attorney tried to show the existence of the second sale, and the following happened:

“Prosecuting Attorney: I offer in evidence the deed of purchase and sale in favor of the foster child, Santiago Cabrera . . .

“Mr. Quinones: We object to the admission in evidence of the docUfnent, because it is not" a copy of a Public Deed, not even the original is a Public Deed, because it is provided by law that when one of the parties is unable to sign, one of the witnesses signs for the party at his request. In this document there appears someone not a witness thereto signing for one of the parties. . . .

“Prosecuting Attorney: I will not discuss that point. Let us assume that this is a private document. Whatever it is, it is a sale and that is the only thing required by the Law of Evidence, more so when we attach to this deed a certificate of the registrar of property to the effect that said conveyance was recorded in the registry. Contracts shall be binding whatever may be the form in which they may have been executed. Thus, I offer the certificate of the Registrar of Property of San Juan, where it appears that this deed is duly recorded in the registry.

“The Court: But what about the deed, do you withdraw it?

“Prosecuting Attorney: I introduce it together with the certificate of the Registrar of Property of San Juan showing that this deed is duly recorded in the Registry of Property. And I will not argue whether the signature is necessary or not, or if the witness must appear in the instrument, because this question will be unduly extended. The fundamental question is that there was a sale, and that afterwards the defendants, with the intent to defraud, again sold the property to their legitimate son, and said legitimate son appears mortgaging said property to his brother. . . .

“The Court: After studying and giving due consideration to the motion of counsel for defendants as to the admissibility of the Public Deed offered this morning by the Prosecuting Attorney, the Court sustains the objection of the defendant and does not admit the deed, because it is not valid as a Public Document, and as such has no legal effect.

“Prosecuting attorney: I will move the court for a reconsideration of that ruling on grounds which I will state as soon as witness Santiago Cabrera testifies. ’ ’

In effect, Santiago Cabrera, the alleged subsequent purchaser, was called to the witness stand, and when he was asked, if he had any transaction with the defendants, counsel for defendants raised an objection, and the court settled the question as follows:

“Judge: This is a prosecution for a violation of Section 471 of the Penal Code, under the charge that the defendant sold certain properties which are described in the information to two different persons and on two> different occasions. The first sale made to Huertas González was proven by a public deed, which was presented and admitted by the court over the objection of the defendants. Then they tried to prove the second sale by a deed which the court holds is void, inasmuch as the parties, or some parties, were not able to sign, and it was signed for them by a person not a witness to the instrument; and as repeteadly held by our Supreme Court, such documents are absolutely null and void.

“Now, in view of the nullity of the document, a fact admitted by the prosecuting attorney, it was sought to prove the second sale by means of testimonial evidence; and the point in issue is whether or not that contract of conveyance of real property, which the law requires to appear in writing, can be proven by testimonial evidence disregarding the public instrument required by law. In our judgment, there are two different questions to be considered: the validity of the contract with regard to the parties thereto, and the proof of the contract. The contract might be binding, the contracting parties may compel each other to its fulfilment; but to prove said contract in a criminal action like the present one, the law then requires said proof to be given by public instruments and not by parol evidence.

“For the foregoing reasons the court sustains the objection raised by counsel for the defendants to the proof by parol evidence of the existence and execution of this second contract to which the information refers.

“Prosecuting Attorney: Inasmuch as the ruling of the court regarding this question practically destroys our case, and as your Honor knows that an order of Your Honor to the Jury for a directed verdict for defendants is appealable to the Supreme Court, with Your Honor’s leave I am going to enter in the record what I intended to prove with witness Santiago Cabrera.

“The Prosecuting Attorney presents witness Santiago Cabrera to show that on or about July 12, 1932, he agreed with defendant Benito Cabrera and defendant María Secundina Garcia to buy the two properties described under letter A and letter B in the deed which I now request to be marked by the clerk as evidence offered by the Prosecuting Attorney and not admitted by the court, and which has been marked by the Clerk as Exhibit 1, offered by the Prosecuting Attorney and not admitted by the Court. The Prosecuting Attorney also intends to introduce in evidence a certificate of the Registrar of Property with regard to the record of the purchase and sale referred to in Exhibit 1 of the prosecution, as evidence offered by the Prosecuting Attorney and not admitted by the court, and also denied by the court, and which was marked by the court as Exhibit 2 of evidence offered by the prosecution and not admitted by the court.

“. . . Witness Santiago Cabrera was to testify that he had agreed to buy those two properties from the defendants for $12,000, and that in the same moment he had mortgaged for $2,000.00 to his brother the two properties referred to, and duly described in public deed No. 245 which was the one offered in evidence by the Prosecuting Attorney and which was not admitted by the court. The court refused to admit parol evidence as to the contract of purchase and sale between Santiago Cabrera and the defendants, the parol evidence regarding the existence of the contract of purchase and sale between Santiago Cabrera and Secnndina Garcia.

“To that ruling of the court the Prosecuting Attorney respectfully takes an exception. . . . The prosecution rests.”

Then, counsel for defendants moved the court to direct verdict for defendants, and the court granted the motion as follows:

“The court: Gentlemen of the Jury: As in the instant ease, it was the duty of the prosecution to prove that there were two sales, and as according to the opinion of the court, the Prosecuting Attorney has failed to show the last sale, which if proven, will constitute the offense of a double sale, that is, the offense defined in Section 471 of the Penal Code, there is no question to be submitted to the Jury, but only to direct the Jury to enter a verdict of acquittal inasmuch as the evidence will never suffice to sustain a verdict of conviction. The Court instructs the jury to enter a verdict of acquittal and for that purpose it appoints Mr. Astol president of the jury and directs him to sign the verdict.”

The verdict rendered by the jury was received by the Court and the defendants were discharged.

On the same date, February 9, the People took the present appeal thru the Prosecuting Attorney, in accordance with the provisions of paragraph 6, Section 348 of the Code of Criminal Procedure, which reads as follows:

“Sec. 348. — An appeal may be taken by The People:

‘ ‘ 6. — From an order of the court directing the jury to find for the defendant.' ’

In our judgment, the order of the court directing the jury to find for the defendants based on its rulings about the inadmissibility of the evidence introduced by the prosecuting attorney is erroneous.

Section 471 of the Penal Code, which defines and punishes the offense for which the defendants are charged, reads as follows:

“Art. 471. Every person who, after once selling, bartering or disposing of any property, real or personal, or interest therein, or after executing any bond or agreement for the sale of any such property, again wilfully and with intent to defraud previous or subsequent purchasers, sells, barters, or disposes of the same property, or any part thereof, or interest therein, or wilfully and with intent to defraud previous or subsequent purchasers executes any bond or agreement to sell, barter, or dispose of the same property, or any part thereof, or interest therein, to any other person for a valuable consideration, is punishable by imprisonment in the penitentiary not less than one nor more than ten years. ’ ’

With, regard to the first sale there is no question. With regard to the second, the Prosecuting Attorney was precluded from proving it Because the Public Deed wherein the sale was embodied was signed for the vendors who were unable to sign by a person not a witness thereto.

It is true that the notarial law definitely provides that should the parties to the instrument, or any of them, be unable to sign, the notary shall state the fact, and one of the witnesses shall sign for the party, and such witness shall precede his signature with the note in his own handwriting that he signs for himself and for the party, in the name of said party or parties. Section 14 of the Notarial Act of 1906.

And it is also true that this Court held that if the signature of one of the parties to a public instrument does not appear in the manner prescribed by the statute, it is equivalent to the non-existence of his signature, and therefore the document should be considered as null and void, pursuant to Subsection 3 of Section 20 of the Notarial Law. Banco Territorial y Agrícola v. Registrar of San Juan, 22 P.R.R. 545.

But that does not mean that the contract as such did not exist because the document wherein it is embodied was not executed in accordance with law. If there was the consent of the contracting parties, a definite object, and a cause, there was a contract. And to show those elements the deed could and should have been admitted as a piece of evidence to be completed by the evidence of the witnesses. That also applies to the certificate of the Registrar.

The criminal act charged to the defendants substantially consists in the reselling of a property previously sold to another person, wilfully and with the intent to defraud the previous purchaser. And the evidence sought to be introduced in this case by the prosecuting attorney was for the purpose of showing that the defendants, having already conveyed the properties in question to a person in payment of certain debts they had with said person, again sold them to their son who took the public document where in said contract appeared to the Registry and succeeded in having it recorded by the Registrar before the presentation for record of the title conveyed to the first purchaser, an act which according to the provisions of Section 1362 of the Civil Code (1930 ed.) decided the question of the double sale in Ms favor.

The intent to defraud would not disappear by the fact that the public document executed later on appeared to be void. The document was executed, and not only was executed but also recorded in the Registry. To obtain a record of Ms purchase the original purchaser would be forced to move the contracting parties of the second contract for the voluntary execution of another document setting aside the one already recorded or to bring judicial action for the annulment of the second contract and for the cancellation of its record in the Registry. The situation may be further deranged by the appearance on the stage of third persons acquiring from the record owner according to the Registry.

In view of the above conclusions it would seem that the order appealed from should be reversed, as should also be reversed the judgment of acquittal which was a consequence thereof.

But, however erroneous the order might be, the truth is that the jury complied therewith and rendered a verdict of acquittal, and that thereupon the court entered judgment discharging the defendants. And in a similar situation this Court held in People v. Noonan, 46 P.R.R. 700 that the cause was finally disposed of and that no further action lay.

It does not matter that the question is not raised in this case. It is a fundamental question and to prevent further and unnecessary proceedings, it must he settled now.

Consequently, notwithstanding our conclusion about the error of the court in giving said order, as its reversal would have no practical value, we will limit ourselves to dismiss the appeal taken by the Prosecuting Attorney as academic.