People v. Julián

23 P.R. 157

Opinions

Mr. Justice Wolf

delivered the opinion of the court.

Lucas Julián was charged with having carried a prohibited weapon. The complaint substantially set up that on October 29, 1914, at 9.45 p. m., in Baldorioty Street, Gua-yama, Porto Rico, the said defendant illegally, voluntarily and maliciously and for offensive and defensive purposes carried, and there was taken from his person, a club (garrote) 33% x 4 inches. We think it is evident that the four inches alluded to is the circumference and not the diameter of the club or garrote, as a club of four inches diameter' would have a circumference of nearly 13 inches and be unwieldable.

During the progress of this appeal the secretary of the district court sent to this court a knotted and somewhat thick stick which answers to the description in the complaint and has every indicia of having been used as an exhibit at the-trial in- the court below, and there is a mighty probability that it was the self-same stick used by the defendant for purposes of offense and defense as described in the- complaint. Indeed, the fiscal of this court conceded or admitted at the hearing that the stick was the same as the one offered as an exhibit in the court below. Nevertheless this stick or cane was never made a part of the record or certified to us in any of the ways known to the law, and we have no right or authority to consider it in our disposition of the case. An appellate court has only authority to consider the record. Orama v. Oyanguren, 19 P. R. R. 294, citing on page 296 England v. Gebhardt, 112 U. S. 502, and other cases of the United States Supreme Court; Bassing v. Cady, 208 U. S. 388, 389; 2 R. C. L. 106; 2 Cyc. 1074, 1075. The fiscal cannot add to nor subtract from the record. The secretary of the court below has no power of his own initiative to add to a statement of the case. It is the judge of the court below who must' certify to the facts of the trial and such certificate takes the form of a statement of the case or bill of exceptions. Calaf v. Calaf, 16 P. R. R. 795; Orama v. Oyanguren, supra, and cases therein cited. If the appellant, instead of describing an object in tbe bill of exceptions or statement of tbe case, desires to send tbe original object, tbe way of doing so is set forth in tbe rnles of tbis court. No. 40b. Hence', taking tbe record as we find it, there is sufficient evidence to show that tbe weapon described in tbe complaint was taken from tbe defendant.

We regret when an appeal is not properly prosecuted. It lias been suggested in tbis court that we send tbe case back to permit the court below to make a new statement. Such a practice would encourage rather than discourage careless or reckless appeals to this court.- Tbe defendant has taken no step in bis own interest beyond tbe preparation of tbe alleged defective statement of tbe case. He filed no brief. He did not appear.

Perhaps tbe defendant preferred to pay tbe fine of five dollars rather than trouble himself any further about tbe matter, but in any event an appellate court would have as much right to listen to alleged omitted testimony as to consider an alleged omitted object. Tbe fiscal cannot suggest omitted testimony to tbe court.

Tbe judgment must be

Affirmed.

Chief Justice Hernández and Justice Aldrey concurred. Justices del Toro and Hutchison dissented.