ON MOTION FOR RECONSIDERATION
per CURIAM:
Appellant was convicted of incest and sentenced to serve from one to three years in the penitentiary. He had sexual relations with his niece on his mother’s side. At the time of the events he was 24 years and four months old and she was 17 years and four months old.
According to the testimony of the young girl at the trial the facts occurred in the following manner: She went to appellant’s house to wash his clothes. When she finished washing them she went up to the house (evidently she washed them in the yard) and went to appellant’s room. The latter was sitting on his bed reading a magazine. The young girl sat beside him and he invited her to have sexual relations with him. She answered that she did not dare. Appellant started to caress her, thing which she did not object to, and finally agreed to have sexual relations with him.
[858]*858By'Judgment óf May 8, 1969, we affirmed the judgment appealed from. Appellant’s motion for reconsideration having been heard, we advised the Solicitor General to discuss the following two points: (1) whether § 275 of the Penal Code, S3 L.P.R.A. § 1115, is unconstitutionally indefinite or vague, and (2) whether in this jurisdiction the relationship between half-blood uncles and nieces or aunts and nephews creates the incestuous relations penalized by the aforementioned § 275. On that date, February 10, 1970, we placed appellant on bond pending appeal.
This case makes us examine the situation as to whether a relation between half-blood uncle and niece falls within the provisions of § 275 of the Penal Code, 33 L.P.R.A. § 1115. Said section, which is derived from the Penal Code of 1902, provides the following:
“Persons being within the degrees of consanguinity within .which marriages are declared by law to be void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the penitentiary not exceeding ten years.”
If the youths involved herein would have had their sexual relations in Puerto Rico some time before July 1, 1902, date when the Penal Code of that year became effective, said relationship would not have constituted a public offense. The Reformed Spanish Penal Code of 1870 extended to Cuba and Puerto Rico by Royal decree of May 23, 1879, by proposal of the Overseas Minister, Don Salvador de Abacete, in agreement with the Council of Ministers and by virtue of the power granted to the government by Art. 89 of the Spanish .Constitution of 1876 governed in Puerto Rico before the aforementioned date. Said Spanish Penal Code, then in force in this country, did not make sexual relations between uncles ,and nieces or aunts and nephews a public offense even though, ■then, as well as now, and there as well as here, the Civil Code prohibited and prohibits intermarriage between them. See [859]*859§ 459 of the Penal Code of 1879 for Cuba and Puerto Rico, § -84 of the Spanish Civil Code, § 71 of the Civil Code of Puerto Rico (31 L.P.R.A. § 2331.1
Furthermore, if the events had taken place at the present time in Spain, they would not have constituted a public offense either for although the Spanish Civil Code, like ours, as we said, prohibits intermarriage between uncle and niece, the sexual relations between them do not constitute an offense.2 In Spain only the sexual relation of the male with his sister or descendant constitutes incest. See § 435 of the Spanish Penal Code in force revised in 1963; 4 Puig Peña, Derecho Penal 78 (6th ed. 1969); Quintano Ripolles, Comen-tarios al Código Penal 799 (2d ed. 1966) .3
[860]*860As it is known, our Penal Code issues from California. Since in California the sexual relation with which we are dealing in the instant case does not constitute incest either, as we shall explain hereinafter. So that both in the light of our historical law — the Spanish Penal Code in force in Puerto Rico before the change of sovereignty — and in the light of the Californian origin of our present Penal Code, the facts of the instant case do not constitute incest. We state below why that is so and also why the judgment appealed from cannot be sustained.
Bear in mind the provisions of § 275 of our Penal Code in force, which we have copied verbatim previously in this opinion. It is true that the Civil Code in its § 71, 31 L.P.R.A. § 233(2), provides that “collaterals by consanguinity within the fourth degree” cannot contract marriage with each other. Without deciding it now, we may assume, as the Solicitor General suggests, that that prohibition to contract marriage contained in the Civil Code comprises both half-blood and full-blood uncles and nieces and aunts and nephews, but we must bear in mind that that extensive construction is permissible in civil law. However, we are dealing here with a case of criminal law and before transferring an extensive construction from the civil ambit to the criminal ambit it is necessary to examine again the aforecited § 275 of the Penal Code.
Said section, as we said before, issues from the Penal Code of 1902, and appears in said Code with a footnote No. 1, which literally says the following:
[861]*861“(1) Incestuous marriages. — -Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, or aunts and nephews, are incestuous and void from the beginning, whether the relationship is legitimate or illegitimate.”4
So that, as it can be seen, the lawmaker expressly defined the situations which he wished to declare incestuous for the purpose of the Penal Code. The text of that footnote which does not appear to be taken from our own Civil Code or from the Spanish Code, People v. González, 26 P.R.R. 379 (1918), most certainly proceeds from a note which appeared under § 285 of the California Penal Code, 1901 edition — section which is equivalent to § 275 of our Code — and which note in the aforecited edition of the California Code read as follows:
“ ‘Incestuous marriages. — Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, or aunts and nephews, are incestuous and void from the beginning, whether the relationship is legitimate or illegitimate’: Civil Code, § 59.”5
In adopting in our § 275, § 285 of California, our lawmaker could have omitted the aforecited footnote. In that case probably it would have been necessary to resort to the aforecited § 71 of our Civil Code in order to complete § 275 of the Penal Code. However, as we have set forth, our lawmaker chose to define the incestuous relations in our Penal Code, as it had been done by the California lawmaker upon approving in 1872, § 285 of the Penal Code of California.
The aforecited definition of what constitutes an incestuous relation taken by our lawmaker from the note with [862]*862which the lawmaker of California accompanied § 285 of that state and transferred to the footnote of our § 275, provides that the marriages between ancestors and descendants of every degree, between brothers and sisters of the whole as well as the
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ON MOTION FOR RECONSIDERATION
per CURIAM:
Appellant was convicted of incest and sentenced to serve from one to three years in the penitentiary. He had sexual relations with his niece on his mother’s side. At the time of the events he was 24 years and four months old and she was 17 years and four months old.
According to the testimony of the young girl at the trial the facts occurred in the following manner: She went to appellant’s house to wash his clothes. When she finished washing them she went up to the house (evidently she washed them in the yard) and went to appellant’s room. The latter was sitting on his bed reading a magazine. The young girl sat beside him and he invited her to have sexual relations with him. She answered that she did not dare. Appellant started to caress her, thing which she did not object to, and finally agreed to have sexual relations with him.
[858]*858By'Judgment óf May 8, 1969, we affirmed the judgment appealed from. Appellant’s motion for reconsideration having been heard, we advised the Solicitor General to discuss the following two points: (1) whether § 275 of the Penal Code, S3 L.P.R.A. § 1115, is unconstitutionally indefinite or vague, and (2) whether in this jurisdiction the relationship between half-blood uncles and nieces or aunts and nephews creates the incestuous relations penalized by the aforementioned § 275. On that date, February 10, 1970, we placed appellant on bond pending appeal.
This case makes us examine the situation as to whether a relation between half-blood uncle and niece falls within the provisions of § 275 of the Penal Code, 33 L.P.R.A. § 1115. Said section, which is derived from the Penal Code of 1902, provides the following:
“Persons being within the degrees of consanguinity within .which marriages are declared by law to be void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the penitentiary not exceeding ten years.”
If the youths involved herein would have had their sexual relations in Puerto Rico some time before July 1, 1902, date when the Penal Code of that year became effective, said relationship would not have constituted a public offense. The Reformed Spanish Penal Code of 1870 extended to Cuba and Puerto Rico by Royal decree of May 23, 1879, by proposal of the Overseas Minister, Don Salvador de Abacete, in agreement with the Council of Ministers and by virtue of the power granted to the government by Art. 89 of the Spanish .Constitution of 1876 governed in Puerto Rico before the aforementioned date. Said Spanish Penal Code, then in force in this country, did not make sexual relations between uncles ,and nieces or aunts and nephews a public offense even though, ■then, as well as now, and there as well as here, the Civil Code prohibited and prohibits intermarriage between them. See [859]*859§ 459 of the Penal Code of 1879 for Cuba and Puerto Rico, § -84 of the Spanish Civil Code, § 71 of the Civil Code of Puerto Rico (31 L.P.R.A. § 2331.1
Furthermore, if the events had taken place at the present time in Spain, they would not have constituted a public offense either for although the Spanish Civil Code, like ours, as we said, prohibits intermarriage between uncle and niece, the sexual relations between them do not constitute an offense.2 In Spain only the sexual relation of the male with his sister or descendant constitutes incest. See § 435 of the Spanish Penal Code in force revised in 1963; 4 Puig Peña, Derecho Penal 78 (6th ed. 1969); Quintano Ripolles, Comen-tarios al Código Penal 799 (2d ed. 1966) .3
[860]*860As it is known, our Penal Code issues from California. Since in California the sexual relation with which we are dealing in the instant case does not constitute incest either, as we shall explain hereinafter. So that both in the light of our historical law — the Spanish Penal Code in force in Puerto Rico before the change of sovereignty — and in the light of the Californian origin of our present Penal Code, the facts of the instant case do not constitute incest. We state below why that is so and also why the judgment appealed from cannot be sustained.
Bear in mind the provisions of § 275 of our Penal Code in force, which we have copied verbatim previously in this opinion. It is true that the Civil Code in its § 71, 31 L.P.R.A. § 233(2), provides that “collaterals by consanguinity within the fourth degree” cannot contract marriage with each other. Without deciding it now, we may assume, as the Solicitor General suggests, that that prohibition to contract marriage contained in the Civil Code comprises both half-blood and full-blood uncles and nieces and aunts and nephews, but we must bear in mind that that extensive construction is permissible in civil law. However, we are dealing here with a case of criminal law and before transferring an extensive construction from the civil ambit to the criminal ambit it is necessary to examine again the aforecited § 275 of the Penal Code.
Said section, as we said before, issues from the Penal Code of 1902, and appears in said Code with a footnote No. 1, which literally says the following:
[861]*861“(1) Incestuous marriages. — -Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, or aunts and nephews, are incestuous and void from the beginning, whether the relationship is legitimate or illegitimate.”4
So that, as it can be seen, the lawmaker expressly defined the situations which he wished to declare incestuous for the purpose of the Penal Code. The text of that footnote which does not appear to be taken from our own Civil Code or from the Spanish Code, People v. González, 26 P.R.R. 379 (1918), most certainly proceeds from a note which appeared under § 285 of the California Penal Code, 1901 edition — section which is equivalent to § 275 of our Code — and which note in the aforecited edition of the California Code read as follows:
“ ‘Incestuous marriages. — Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, or aunts and nephews, are incestuous and void from the beginning, whether the relationship is legitimate or illegitimate’: Civil Code, § 59.”5
In adopting in our § 275, § 285 of California, our lawmaker could have omitted the aforecited footnote. In that case probably it would have been necessary to resort to the aforecited § 71 of our Civil Code in order to complete § 275 of the Penal Code. However, as we have set forth, our lawmaker chose to define the incestuous relations in our Penal Code, as it had been done by the California lawmaker upon approving in 1872, § 285 of the Penal Code of California.
The aforecited definition of what constitutes an incestuous relation taken by our lawmaker from the note with [862]*862which the lawmaker of California accompanied § 285 of that state and transferred to the footnote of our § 275, provides that the marriages between ancestors and descendants of every degree, between brothers and sisters of the whole as well as the half blood, and between uncles and nieces or aunts and nephews are incestuous. This is, it expressly includes and declares as incestuous the relations between brothers and sisters of the whole as well as of brothers and sisters of the half blood but, however, it does not include the relations between uncles and nieces and aunts and nephews of the half blood. So that for criminal purposes it declared as incestuous the relations between brothers and sisters of the whole blood as well as of half blood but insofar as uncles and nieces were concerned it did not include them when it was a half-blood relationship.
The situation under our consideration was decided by the Supreme Court of California. People v. Baker, 442 P.2d 675 (1968), dealt with an individual who had sexual intercourse with the daughter of a sister of his of the half blood, this is, with a niece of the half blood, as in the case at bar. He was charged with rape and incest, for in that case, contrary to the instant case, there was some violence and coercion. It seems that in the opinion of the court the violence was not sufficient to find him guilty of rape, but he was found guilty of incest by the trial court. The Supreme Court of California, making an analysis of § 285 of the Penal Code of that state and of the footnote repeatedly mentioned herein, concluded that the court could not assume that that definition of the incestuous relation provided by the lawmaker himself in the Penal Code constituted a mere error but that it constituted his express will. Consequently it decided that by including in an express manner the relation between brothers and sisters of the half blood within the criminal sanction and in failing to include in the same manner the relation between [863]*863uncles and nieces of the half blood, this last situation was excluded from the definition of the incestuous relation. The court reversed the conviction appealed from. In so doing, the court of California, besides using his own reasoning, followed the case of State v. Bartley, 263 S.W. 95 .(1924), which construed in a similar manner equal provisions of Missouri, and reversed a previous case of California, People v. Womack, 334 P.2d 309 (1959), where the contrary had been decided.
The reasoning of the Supreme Court of California as well as ours are in agreement with what we stated in Rodríguez v. Díaz, 65 P.R.R. 266, 274 (1945), citing a case of Louisiana in the sense that “the mere prohibition of marriage does not create the offense of incest.” This must be clear. In Rodríguez v. Díaz, supra, we stated that we cannot by implication include within a criminal provision other cases which are not comprised therein. That is the very situation of the case at bar. There is no doubt that the state has — within the constitutional limits — the jus puniendi, but if it exercises it, it should be done in writing and in an express manner.
Our decision in the instant ease and that of the Supreme Court of California in People v. Baker, supra, are in accordance with the modern international currents. See Ploscowe, “Report to the Hague: Suggested Revisions of Penal Law Relating to Sex Crimes and Crimes Against the Family,” in 50 Cornell L. Q. 425, 431-432 (1965).
The young women are not left without protection since, as it is known, when the female is under the age of 14 years, even if she consents, the relation constitutes an aggravated offense of rape. And if she is 14 or more years old and force or violence is used it also constitutes rape. Sections 255 and 258 of the Penal Code, 33 L.P.R.A. §§ 961 and 964, respectively. The aforecited provisions cover both strangers as well as relatives of the whole or of the half blood for they do not make a distinction, except in the case of the husband.
[864]*864In view of the foregoing, our judgment of May 8, 1969, will be set aside, the judgment appealed from will be reversed, and defendant acquitted.
Mr. Justice Martin, with whom Mr. Justice Ramirez Bages and Mr. Justice Martínez Muñoz concur, dissented in a separate opinion. Mr. Justice Hernández Matos took no part in the decision of this case.
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