People v. Olivencia

93 P.R. 824

• Court: Supreme Court of Puerto Rico
• Decided: January 20, 1967
• Docket: No. CR-66-93
• Status: Published

Opinions

Mr. Justice DAvila

delivered the opinion of the Court.

It is a well-settled doctrine of this Court that “in prosecutions for carrying weapons where the weapon is not presented because it has not been seized, the evidence must be clear and convincing.” People v. Rosario, 80 P.R.R. 306 (1958), and see also, People v. Oquendo, 79 P.R.R. 511, 515 (1956); People v. Pacheco, 78 P.R.R. 23, 28 (1955); People v. Garcés, 78 P.R.R. 95, 100 (1955); People v. Rupizá, 72 P.R.R. 694, 696 (1951); People v. Guzmán, 52 P.R.R. 444, 455-56 (1938); People v. Cartagena, 37 P.R.R. 261, 264 (1927). The evidence in this case is not.

Appellant was charged with the violation of three provisions of the Weapons Law (25 L.P.R.A. § 411 et seq.). Sections 6, 8, and 32. Failure to have a license to possess a weapon; carrying a loaded weapon, and firing it. The jury which heard the case for carrying weapons acquitted him and the judge did likewise in the case for firing it. He was found guilty of violation of § 6.

The prosecuting attorney presented two witnesses. The first one, a customer of the bar where the incident supposedly occurred. The latter testified that on the night of July 4, 1963 he saw when appellant entered with a weapon like those used by policemen. He describes it as a black revolver, mahogany-colored grip, short barrel. He stated that appellant delivered it to the bartender of the business. On cross-examination he admits that he had been drinking since 4:00 p.m. The facts occurred at 10:00 p.m. That during that lapse of time he drank not less than fifteen beers.

The other witness for the prosecution was the bartender of the business where the facts occurred which gave rise to the informations filed against appellant. He testified that “that night while I was working in that business, about 11:15 or 11:30 there were two other men drinking beer. ... On hearing a shot, like a firecracker, the two persons went out, and a little later they returned and said: ‘it is el Cano who is drunk and playing.’ ” The prosecuting attorney then asks “Who said that?” and the witness answered: “Two men who entered the bar. They entered with a revolver, a ‘small revolver’ like a toy. It is el Cano playing with a toy revolver.”

He affirms that el Cano (appellant) remained outside and that the men told him to put away the revolver. He testifies that they took appellant and put him in the bus and took him away. He insists that el Cano “did not enter the bar; that whoever it was did not enter the bar, he remained outside in the sidewalk ... he stood at the door, but did not enter.” He affirms that the revolver “was small, of blank shells, I believe it was.” The prosecuting attorney insists “You cannot tell whether it is of blank shells?” and the witness answers “I have seen the blank shell revolvers and that one was like that.”¹

The prosecuting attorney decides to impeach his testimony and the sworn statement the witness offered five days after the facts occurred is read to him. After it is read, the prosecuting attorney asks him, “Tell me, is it true or not that you say therein in your sworn statement before the prosecuting attorney which has just been read to you, that the two persons you mentioned who were in your business entered with el Cano, that later you learned that he was Ángel A. Olivencia?”, (the appellant). Then he answers, “He came right to the door of the bar. This is the door, he stood here, but he did not go in.”

The prosecuting attorney only tried to establish that in the sworn statement the witness had affirmed that the defendant had entered the bar (the witness, however, reaffirmed what he had testified) but he did nothing to contradict his statement at the trial to the effect that the weapon was a blank shell revolver, a four-inch revolver, a toy, as was repeatedly affirmed by the witness.

In the present case the judge acquits the defendant of the charge for discharging the revolver, but nevertheless he finds him guilty of carrying it, where it was not seized, and evidently, the evidence for the prosecution is not clear and convincing. While a witness who has been drinking alcoholic beverages for four or five consecutive hours describes the weapon in such terms that it may be inferred that it is a prohibited weapon, the other witness describes it as a toy weapon, a blank shell revolver.'He affirms he has seen this kind of weapon before. The evidence for the prosecution does not establish clearly and convincingly that appellant was bearing a prohibited weapon. Where the weapon is not seized, possession thereof must be clearly and convincingly established. One cannot rely on a detailed description of the weapon. A witness can easily charge the possession of a weapon and if the only requirement is a more or less detailed description thereof, he could memorize it and recite it at the trial. Although exact details and a perfect consistency in the testimonies should not be required, at least, the evidence for the prosecution must be more convincing than that in this case. There is no other way to interpret our ruling in Cartagena, supra.

■ The judgment appealed from will be reversed and the defendant acquitted.

Mr. Justice Rigau and Mr. Justice Ramírez Bages dissented in separate opinions. The Chief Justice concurs in the dissenting opinion of Mr. Justice Rigau. Mr. Justice Blanco Lugo dissented.

—0—

1 It was not until Act No. 88 of June 25, 1965 was approved, 25 L.P.R.A. § 541 et seq. (Supp. 1965), that the carrying of blank shell weapons was prohibited.