People v. Mercado

45 P.R. 727

• Court: Supreme Court of Puerto Rico
• Decided: November 24, 1933
• Docket: No. 5147
• Status: Published

Opinion

Mr. Justice Wole

delivered the opinion of the Conrt.

A motion to dismiss has been presented by the Fiscal because of a lack of notice of the appeal. In a sworn opposition the appellant sets np that he mailed the notice of appeal to the district attorney; that he did not serve the notice personally because when he went to the office of the district attorney the latter was absent from the district; that in order to comply with the letter of the law the attorney for the appellant subsequently went to the office of the prosecuting attorney to find out whether he had received the notice by mail, and that, according to the affiant, the district attorney had actually received it; that this was a case where the parties had agreed that the case should be tried in the district court and appealed to the Supreme Court of Puerto Rico. The appellant cites the case of People v. Varela, 41 P.R.R. 879.

In People v. Rubio, 44 P.R.R. 866, we intimated that if the appellant could show that the notice by mail had reached the prosecuting attorney it might be maintained that the notice had been personally made. And in People v. Varela, supra, we held that the purpose of the statute was to give the People of Puerto Rico actual notice.

Furthermore, we think that on the facts of the case an estoppel arose. The appellant went to the office of the district attorney and there ascertained that the notice of appeal had actually been received. When the attorney for the appellant went to the office of the district attorney for the purpose of making a personal service, as seems a fair inference, it became the duty of the district attorney to insist upon a more formal service, if he so desired. The whole circumstances of the case tend to show that the district attorney had personal notice of the appeal.

The motion will be denied.