People v. Calderón

46 P.R. 857

• Court: Supreme Court of Puerto Rico
• Decided: June 5, 1934
• Docket: No. 5217
• Status: Published

Opinion

Mr. Justice Aldrey

delivered the opinion of the eonrt.

This appeal was taken by Pablo Calderón from a judgment of the District Court of Guayama convicting him of ■carrying a prohibited weapon. The case was begun in a municipal court.

The first ground for this appeal is that the district court failed to order the dismissal of the proceeding in accordance with subdivision 2, section 448 of the Code of Criminal Procedure according to which, unless there he just cause to the contrary, the court shall order the dismissal of a proceeding when a defendant, whose trial has not been continued upon tes own motion, is not tried within the term of 120 days, counted from the date of filing of the accusation.

The complaint in this case was filed on the 6th of Feb-xuary 1932, and the trial was set for May 27 following. 'Two days before the date set for trial, the defendant asked for a continuance thereof. It was then set for August 9, and the defendant again asked for a continuance. The trial was again set for November 16, and one day before that date the attorney for the defendant asked the court to continue ihe trial. On the following day, the 16th, the clerk of the court continued all trials ‘set for that clay, among them that of tire-defendant, for the reason that there was no'judge in court.. The trial was again set for December 13, and the attorney for the, defendant again asked for a continuance, hut the trial was held and the deféndant found guilty. He appealed from that judgment.' At the time the district court heard the-casé tóe novo-, a motion ivas presented to dismiss the same for the reason that from August 9 to December 13 more than 120 days had elapsed without a trial having'been held. This motion was denied, and, a trial was had in which the defendant was convicted. He then took this appeal.

The first ground of appeal is that the case was not dismissed.

It does not appear from the record .whether the petition-for continuance filed by the attorney for the defendant on the 15th of November was granted or not. If if was, there was no ground for moving for dismissal, because from that date to December .13, less than the 120 days to which the law refers elapsed.' If it was not granted, then the fact that no trial was had on November 16 was due'ho-'force majeure because there was no judge sitting, and consequently the term of 120 days began to be counted anew froih November 16,, and the term had not expired when the trial'"was had on December 13." ‘ -

The other ground of appeal is that the judgment is contrary to the law and the evidence. ' !

The witness Gabriel Torres Laborde testified that he saw the defendant with a revolver in his hand and that he saw him shoot four or five times with it in th^strel^. José Váz-quez, Francisco Hernández, Eamón Burgos, and Luis Anes-saw the defendant fire several times at Gabriel Torres La-borde. Tadeo Bios, Carlos Mercado, ahd Gabriel Samoa heard the shots. The defendant presented no evidence.

The evidence introduced in this case is Sufficient to justify the judgment appealed from both as to the facts and as to. the applicable law, and the judgment must be affirmed.