People v. Ortiz

22 P.R. 630

Opinions

Mr. Justice Hutchison

delivered the opinion .o f the court.

Defendant, appellant, is or was the owner of a' ihsmall cafe in Cataño and of an automobile. One day in the earlier part of November, 1913,- while sitting in the doorway of hi^s café he called a newsboy, took two papers and told an employee to pay the boy. The employee gave the boy a half-dollar from the cash-drawer and received the change. Ortiz remained seated reading the newspaper. Next day the boy’s father told him that the coin was badland the .boy finally,1, upon the advice of his father and after several futile efforts to find Ortiz during tfie absence of the latter from bis place of business, complained to a policeman. Ortiz, upon the matter being brought to his attention, at once expressed his willingness to restore matters to the original status quo, took the alleged spurious half-dollar and returned to the boy its equivalent in money.

Upon returning from Ciales on December 12, 1913, Ortiz, just before dawn and upon the outskirts of Catafio, overtook Juan Rodríguez and Juan Agosto on their way to market with chickens and eggs. He stopped his machine, bought two fowls valued at fifty cents each and handed Juan Rodriguez, two coins which the latter accepted in payment without question at the moment.

After the automobile had gone, Rodríguez and Agosto scrutinized the proceeds of the sale more closely with the aid of a lighted match and, finding both pieces to be false,, took them to the police station in Catafio. The police immediately, and it would seem without difficulty, found the automobile still in charge of the now slumbering chauffeur, who, upon being awakened, replied to such questions as were asked. Whereupon and without delay a search-warrant was procured and officers armed therewith hastened to the house of Ortiz, who related the facts as they had occurred, produced and returned the chickens, said that he did not know the two coins were bad, that they had been received by him in Ciales that night, and invited a thorough search of the premises. Nothing was found.

Defendant was thereafter convicted of counterfeiting under an' information charging the facts in the poultry transaction and the trial court denied a motion for a new trial, urged upon the ground that the verdict was contrary to the law and the evidence.

The record reveals a somewhat curious and anomalous situation as the result of conflicting theories of the case upon the part of the trial judge and the district fiscal. On object tion made to the first inquiry by the fiscal touching upon the newspaper transaction the question was withdrawn. On cross-examination, in reply to a question by the defense as to the industrious habits of the defendant, witness, the policeman who figured in the investigation of the newsboy’s complaint, stated that he knew defendant as. a peaceable man. Thereupon the fiscal insisted upon developing the newspaper incident in rebuttal of the alleged evidence of good character thus brought out by the defense. The evidence in this regard was then admitted by the court after argument, without suggestion of any other hypothesis upon the part of the judge or of anyone concerned. So far as the record shows, the first intimation given the defendant or the jury of any object or purpose other than that of mere rebuttal was contained in the judge’s charge, delivered, of course, after the argument, and in which, for the first time during the trial, attention is called to the circumstances of the newspaper transaction as proof of knowledge and criminal intent. And it is upon the ground of admissibility for the purpose so suggested that the ruling of the court below admitting the so-called evidence in rebuttal is sought to be sustained on appeal.

This court should never be confronted with questions arising from such haphazard trial methods and involving the well-known rule that parties cannot try eases upon one theory below and submit them upon another and wholly distinct hypothesis to the consideration of an appellate tribunal; and, fortunately, under the view we take of the main issue, we are relieved from any serious consideration of such minor matters.

"We think the evidence as a whole, including both transactions, is entirely insufficient to sustain the verdict. Defendant had nothing to do with the first transaction at the time. It simply shows that a counterfeit coin was once paid out of his cash-drawer by one of his employees, that the fact was brought to his attention and that the counterfeit half-dollar was promptly redeemed and thus returned into his possession. There was nothing surreptitious or suspicious about bis conduct on either occasion. He answered' at all times all questions put to Mm and there is nothing in the record to show that in any instance he failed to speak the truth. His presumably good character previous to the two transactions involved is unchallenged. To hold that the mere fact of a single counterfeit coin having been once paid out of any reputable business man’s cash-drawer by a clerk and afterwards returned and accepted by the proprietor is sufficient to show guilty knowledge and criminal intent upon the part of the latter in a prosecution for passing- counterfeit money in the course of a subsequent business transaction, would establish a very dangerous and pernicious precedent. And if we eliminate that feature of this case.there is no evidence of such knowledge and intent.

.The judgment must be reversed and the defendant discharged.

Reversed .and accused discharged.

Chief Justice Hernández and Justice Aldrey concurred. Justices Wolf and del Toro concurred in the reversal oí the judgment on other grounds, but were of the opinion that the accused should not be discharged and that there should be a new trial.