Mr. Justice Blanco Lugo
delivered the opinion of the Court.
In the prosecution for murder in the first degree brought in the Ponce Part of the Superior Court against Alberto Cádiz Colón,1 the district attorney offered the testimony of witnesses Maria Mercedes Pietri, José García Medina, Be-nigno Coti Torres, and José Ramírez García. In January 1953, he was convicted of murder in the second degree and sentenced to serve from 10 to 15 years in the penitentiary. For the purposes of passing upon the only question raised in this appeal, it is necessary to sum up the testimony given by those witnesses.
Maria Mercedes Pietri, alias “La Colorá,” testified that she knew the defendant and Petra Ramírez, the latter’s, “wife,” who lived in the ward of Chichamba of Ponce; that on July 30, 1950 she went to the house of Ramirez in the company of José Ramírez García, known as Pepe Coca-Cola, to buy rum; that after the liquor was sold to them they remained in the yard of the house; that she saw when Cá-diz beat Petra Ramírez and then “he sprinkled her with kerosene and set her afire”; that lie took a “gallon” from a stove, which she identified at the district attorney’s request, [799]*799which the witness had taken to police headquarters. On cross-examination she testified that before the occurrence of the assault the defendant and the victim had engaged in an argument over “jealousy”; that after the brawl the house was closed and “smoke came out” which smelled of burnt meat; that the defendant stated that he would take vengeance upon anyone who denounced him; that the door was forced open and they entered the house to aid the victim, whom they wrapped in a bedspread, which was also identified; that she gave testimony before the district attorney the same day of the occurrence and her account was identical with that given at the trial. José García Medina testified that he witnessed a row between the defendant and the deceased, who had been drinking; that he did not hear the defendant threaten his wife; and that he was not present when “she was burned.” Benigno Coti Torres, state policeman, reproduced certain statements which the victim made to him when she was confined in Tricoche Hospital; “that these two men had set her on fire; that the husband had landed her a blow and she fell to the floor, and that he picked up a gallon of kerosene from the stove, sprinkled her with it, and set a match to her”; that she made these statements to him without the presence of the defendants at her first opportunity to talk with the witness in the course of the investigation; that the only persons who had talked with the victim were the defendants; that when he apprehended the defendants and informed them of the transcribed statements, they remained silent. The last witness, José Ramírez Gar-da, asserted that Cádiz and the Ramirez woman had a “row which came to blows”; that the defendant beat the victim and knocked her down; “then he picked up the gallon from the stove and sprinkled 'ser and set a match to her”; that he also stated that he would kill anyone who “goes against me”; that he testified befom, the district attorney in terms similar to those of his testimony in court.
[800]*800In April 1954, Cádiz filed in the trial court a petition which he labelled coram nobis challenging the judgment rendered. He adduced as grounds lack of due and adequate assistance of counsel and that the conviction was obtained by the testimony of “witnesses who were not at the scene of the occurrence.” The petition was denied and the court stated, among other things, that the petitioner had failed to establish that the evidence of The People was fraudulent.
Again, in October 1955, the defendant moved to set aside the judgment on the ground that the testimony of witnesses Maria Mercedes Pietri and José Ramírez García was false. To that end he enclosed a sworn statement by the said witness 2 and a copy of the sworn statement given by Ra-[801]*801mírez on August 1, 1950, in the course of the preliminary investigation.3 There was also offered a copy of the transcript of the testimonies given at the trial.
The trial court, without holding a pretrial conference,, set aside the judgment rendered and ordered a new trial. It fixed bail to the defendant at $5,000, which was furnished, and the defendant has since then been out on bail. From the order issued we quote the pertinent part which we must consider in order to pass upon the attack made by The People against said order within the present petition for appeal.4 It said that “it does not appear from the record that witness José Ramírez García gave another statement in addition to that given on August 1, 1950,” 5 and that evidently that witness did not tell the truth in the course of the trial of the case when he testified that the account which he was giving of the occurrence “was the same which he had given [802]*802to the district attorney.” It added that “in this case witness José Ramírez García has not confessed that he committed perjury. Witness Maria Mercedes Pietri confessed in her testimony that she had committed perjury. That statement, standing alone, is insufficient by itself to enable the court to set aside a judgment on the ground that it was obtained by fraud. The alleged perjury committed by José Ramírez García, standing alone, would also be insufficient to set aside the judgment. However, the fact that this witness admitted that he committed perjury when testifying in this case, coupled with the fact of apparent perjury which exists by reason of the clear contradiction between the account which he gave at the trial and the sworn statement given before the district attorney, points to the possibility that if the jury had known these facts it would have reached a different verdict as to the innocence or guilt of the defendant.” Finally, it based the annulment of the judgment on the ground of fraud committed by witness Ramirez which, if it had been known at the time of the trial, would have necessarily influenced the verdict of the jury. In other words, the order discarded completely the retraction of witness Pietri and was based exclusively on that of witness José Ramírez García.
In People v. Gerena, 72 P.R.R. 211 (1951), we admitted the power of the courts, subject to certain recognized limitations, to set aside their judgments whenever they have been obtained by fraud. However, we expressly stated that the perjured testimony of a witness, standing alone, is no basis on which to set aside a judgment. Román v. Warden, 78 P.R.R. 730, 732 (1955). A further showing is necessary, i.e., a deliberately planned and carefully executed scheme to defraud the court. To hold otherwise would be tantamount to admitting the sufficiency of another statement of the witness retracting the testimony given at the trial, seeking a new opportunity for the purpose of elucidating the defendant’s criminal responsibility. It is also necessary to plead [803]*803and prove that the evidence of fraud could not have been discovered by reasonable diligence prior to the entry of the judgment, People v. Soto, 73 P.R.R. 52 (1952); cf. People v. Cruzado, 74 P.R.R. 872 (1953).
The facts of this case do not warrant the setting aside of the judgment, since it was not established that there was a deliberately planned and carefully executed scheme to defraud the court.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Blanco Lugo
delivered the opinion of the Court.
In the prosecution for murder in the first degree brought in the Ponce Part of the Superior Court against Alberto Cádiz Colón,1 the district attorney offered the testimony of witnesses Maria Mercedes Pietri, José García Medina, Be-nigno Coti Torres, and José Ramírez García. In January 1953, he was convicted of murder in the second degree and sentenced to serve from 10 to 15 years in the penitentiary. For the purposes of passing upon the only question raised in this appeal, it is necessary to sum up the testimony given by those witnesses.
Maria Mercedes Pietri, alias “La Colorá,” testified that she knew the defendant and Petra Ramírez, the latter’s, “wife,” who lived in the ward of Chichamba of Ponce; that on July 30, 1950 she went to the house of Ramirez in the company of José Ramírez García, known as Pepe Coca-Cola, to buy rum; that after the liquor was sold to them they remained in the yard of the house; that she saw when Cá-diz beat Petra Ramírez and then “he sprinkled her with kerosene and set her afire”; that lie took a “gallon” from a stove, which she identified at the district attorney’s request, [799]*799which the witness had taken to police headquarters. On cross-examination she testified that before the occurrence of the assault the defendant and the victim had engaged in an argument over “jealousy”; that after the brawl the house was closed and “smoke came out” which smelled of burnt meat; that the defendant stated that he would take vengeance upon anyone who denounced him; that the door was forced open and they entered the house to aid the victim, whom they wrapped in a bedspread, which was also identified; that she gave testimony before the district attorney the same day of the occurrence and her account was identical with that given at the trial. José García Medina testified that he witnessed a row between the defendant and the deceased, who had been drinking; that he did not hear the defendant threaten his wife; and that he was not present when “she was burned.” Benigno Coti Torres, state policeman, reproduced certain statements which the victim made to him when she was confined in Tricoche Hospital; “that these two men had set her on fire; that the husband had landed her a blow and she fell to the floor, and that he picked up a gallon of kerosene from the stove, sprinkled her with it, and set a match to her”; that she made these statements to him without the presence of the defendants at her first opportunity to talk with the witness in the course of the investigation; that the only persons who had talked with the victim were the defendants; that when he apprehended the defendants and informed them of the transcribed statements, they remained silent. The last witness, José Ramírez Gar-da, asserted that Cádiz and the Ramirez woman had a “row which came to blows”; that the defendant beat the victim and knocked her down; “then he picked up the gallon from the stove and sprinkled 'ser and set a match to her”; that he also stated that he would kill anyone who “goes against me”; that he testified befom, the district attorney in terms similar to those of his testimony in court.
[800]*800In April 1954, Cádiz filed in the trial court a petition which he labelled coram nobis challenging the judgment rendered. He adduced as grounds lack of due and adequate assistance of counsel and that the conviction was obtained by the testimony of “witnesses who were not at the scene of the occurrence.” The petition was denied and the court stated, among other things, that the petitioner had failed to establish that the evidence of The People was fraudulent.
Again, in October 1955, the defendant moved to set aside the judgment on the ground that the testimony of witnesses Maria Mercedes Pietri and José Ramírez García was false. To that end he enclosed a sworn statement by the said witness 2 and a copy of the sworn statement given by Ra-[801]*801mírez on August 1, 1950, in the course of the preliminary investigation.3 There was also offered a copy of the transcript of the testimonies given at the trial.
The trial court, without holding a pretrial conference,, set aside the judgment rendered and ordered a new trial. It fixed bail to the defendant at $5,000, which was furnished, and the defendant has since then been out on bail. From the order issued we quote the pertinent part which we must consider in order to pass upon the attack made by The People against said order within the present petition for appeal.4 It said that “it does not appear from the record that witness José Ramírez García gave another statement in addition to that given on August 1, 1950,” 5 and that evidently that witness did not tell the truth in the course of the trial of the case when he testified that the account which he was giving of the occurrence “was the same which he had given [802]*802to the district attorney.” It added that “in this case witness José Ramírez García has not confessed that he committed perjury. Witness Maria Mercedes Pietri confessed in her testimony that she had committed perjury. That statement, standing alone, is insufficient by itself to enable the court to set aside a judgment on the ground that it was obtained by fraud. The alleged perjury committed by José Ramírez García, standing alone, would also be insufficient to set aside the judgment. However, the fact that this witness admitted that he committed perjury when testifying in this case, coupled with the fact of apparent perjury which exists by reason of the clear contradiction between the account which he gave at the trial and the sworn statement given before the district attorney, points to the possibility that if the jury had known these facts it would have reached a different verdict as to the innocence or guilt of the defendant.” Finally, it based the annulment of the judgment on the ground of fraud committed by witness Ramirez which, if it had been known at the time of the trial, would have necessarily influenced the verdict of the jury. In other words, the order discarded completely the retraction of witness Pietri and was based exclusively on that of witness José Ramírez García.
In People v. Gerena, 72 P.R.R. 211 (1951), we admitted the power of the courts, subject to certain recognized limitations, to set aside their judgments whenever they have been obtained by fraud. However, we expressly stated that the perjured testimony of a witness, standing alone, is no basis on which to set aside a judgment. Román v. Warden, 78 P.R.R. 730, 732 (1955). A further showing is necessary, i.e., a deliberately planned and carefully executed scheme to defraud the court. To hold otherwise would be tantamount to admitting the sufficiency of another statement of the witness retracting the testimony given at the trial, seeking a new opportunity for the purpose of elucidating the defendant’s criminal responsibility. It is also necessary to plead [803]*803and prove that the evidence of fraud could not have been discovered by reasonable diligence prior to the entry of the judgment, People v. Soto, 73 P.R.R. 52 (1952); cf. People v. Cruzado, 74 P.R.R. 872 (1953).
The facts of this case do not warrant the setting aside of the judgment, since it was not established that there was a deliberately planned and carefully executed scheme to defraud the court. The record reveals only a probable inconsistency between the testimony of witness Ramírez and that given on August, 1, 1950, in the course of the preliminary investigation conducted by the district attorney. This, fact was not sufficient by itself to set aside the judgment. Furthermore, it clearly appears that the basic fact on which the order challenged is founded — “it does not appear that the witness . . . gave another statement in addition to that given on August 1, 1950” — is not correct, since the prosecution attached to its motion for reconsideration of the order setting aside the judgment copy of another statement given by that witness during the reinvestigation of the case in October 1950, when the victim died, which is substantially the same as that given in the course of the prosecution.6 [804]*804For some unexplained reason the trial court disposed of the motion for reconsideration by merely saying “Motion Denied.” Under these circumstances, witness Ramirez did not lie when he said that the testimony which he gave at the trial was in the same terms as another statement which he gave before [805]*805the district attorney. In the field of conjecture we may say that the statement given on August 1, shortly after the occurrence, in which Ramirez states that “I did not see who set fire to her, nor did I see around the man who is supposedly her husband,” was probably due to the threats proffered by the defendant against any person who accused him.
[806]*806In fact, the effect as to the judgment of the defendant’s motion is to obtain a new trial. Considering the motion made as a motion for a new trial, the same should be denied on the ground that it is not based on any of the causes prescribed by § 303 of the Code of Criminal Procedure (34 L.P.R.A. § 883).7 People v. Serbiá, 78 P.R.R. 730 (1955); People v. Reyes, 76 P.R.R. 277 (1954); People v. [807]*807Vega, 69 P.R.R. 376 (1948); cf. People v. Ruiz, 79 P.R.R. 902 (1957); State v. Kicak, 168 N.E.2d 768 (Ohio 1959). See, also, annotations in 158 A.L.R. 1062 (1945); 74 A.L.R. 757 (1931) ; and 33 A.L.R. 550 (1924).8
The order issued by the Superior Court, Ponce Part, on June 27, 1957, will be reversed and the case remanded for further proceedings.