People v. Marchand Paz

53 P.R. 842

Opinions

ON MOTION FOR RECONSIDERATION

Mr. Justice Wolf

delivered the opinion of the court.

On the 26th of July, 1938, the parties to this case agreed to submit it on its merits and upon the arguments and the evidence brought up to this court in case No. 6639, People of Puerto Rico v. Carlos Marchand Paz, for murder in the second degree. The judgment in this latter case was reversed and sent back for further proceedings not inconsistent with the opinion of this court. In the present appeal, No. 7211, the judgment of the lower court was affirmed more or less on the authority of People v. Peña, 50 P.R.R. 822, 824, to effect that the offense of carrying a prohibited weapon was distinct from murder in the second degree.

In the murder case the judgment was reversed because of improper manifestations made by the prosecuting attorney to the jury.

It transpired that Judge De Jesús, who tried the ease, was preparing his instructions when the improper remarks were made and did not hear the comments of the district attorney. Therefore, what the district judge did was to consider the evidence developed before him without any reference to the remarks of the district attorney.

The argument of the appellant is that if this court allows the judgment of affirmance to stand, when the ease goes hack to the district court the jury will have the knowledge or the inkling that Carlos Marchand Paz was convicted of carrying a prohibited weapon and that this knowledge would affect the verdict of the jury. The defense of Carlos Marchand Paz was in effect that he was not present in the murder that was committed and the real offender was another person. The appellant concedes that in the ordinary case where a plea of self-defense is entered there genrally can be no question of carrying a prohibited weapon, if one was actually used, but the facts of the present case, as we have indicated, differ widely.

1 The appellant in this ease has filed no brief and no assignment of errors, but submitted on the evidence and arguments in the murder case. The murder case was reversed in effect on affidavits which were not before the district court when it rendered its judgment. No special arguments were presented to us at the hearing on the lines that are now suggested. The failure to put this court in a position to judge the merits of the present application would be sufficient to overrule the motion for reconsideration.

It frequently happens that one judge or jury trying the case will convict on certain evidence and another will not. Judge De Jesús, who heard the evidence, definitely found that Carlos Marchand Paz was carrying a prohibited weapon. The question of guilt in the murder case was left to the jury which convicted Carlos Marchand Paz. Another jury might decide to the contrary on the same evidence that convinced Judge De Jesús that the defendant was guilty of carrying a prohibited weapon.

"We can not assume with appellant that on a second trial for murder, the jury will be informed as to the result of the appeal in the instant case. Much less can we assume that the jury will be improperly influenced by any rumors or other information foreign to the evidence which may be adduced at the trial and as a result of such improper influence will violate their solemn duty and the assurance usually given by them to the effect that they will try the case according to the evidence submitted to them and to the law as explained to them in the instructions given them by the trial judge. In any event, the fear of counsel for appellant that something of this sort may happen on a second trial for murder, furnishes no satisfactory reason for setting aside the judgment of this court in the instant case. ■

The motion for reconsideration will be overruled.

Mr. Chief Justice' Del Toro and Mr. Justice De Jesús took no part in the decision of this case.