Me. Justice FigueRas
delivered tbe following opinion of tbe court:
Tbe appellant in-this case was ordered to be prosecuted, [407]*407jointly with Jnan Arroyo Adorno, Prisco Padilla and Tomás. Colón 'Sánchez, for complicity in the violent death of Carlos Ma. Alvarez, which occurred in the barrio ‘Hato Viejo,’ municipal district of Ciales, on November 5, 1898.
The preliminary proceedings followed their natural course according to the practice which then prevailed. The penal action was declared extinguished with regard to Colón Sán-chez by reason of his death, Simeón Eeyes was declared a fugitive, and the proceedings against him were suspended until December 28, 1898, when judgment was pronounced qualifying the act as murder, declaring the defendants present, Padilla and Arroyo, to be the guilty parties, and sentencing them to the penalty of life imprisonment, the usual accessory penalties, indemnification of the family of the deceased, and to pay one-fourth of the costs. Said judgment was declared final for failure to take an appeal therefrom within ten days after notice thereof was given.
Simeón Eeyes, the appellant in this case, was captured on the morning of July 17,1903. The prisoner having been taken before the Arecibo court, the accusatory conclusions of the Fiscal were read and he was asked whether he confessed himself guilty of the crime, to which he answered in the negative, his counsel adding that he desired a jury trial, which request was granted.
On the 18th of January of the present year, a jury was duly impaneled, the evidence was taken, and Prisco Padilla, Eulogio Colón, Enrique Valdivieso, Juan G-alíndez and Os-baldo Freites testified as witnesses. The jury, after having deliberated, announced through their foreman that they could not agree upon a verdict, seven of their number having voted against and five in favor of conviction. The judge expressed a desire to know the names of the jurymen who maintained opposite views, to which the Fiscal excepted on the ground that the deliberations of the jury ought to be secret. Said exception was noted, and, the jury having again retired, re[409]*409turned into court with, a unanimous verdict finding the defendant guilty of the crime of voluntary manslaughter. At this stage of the proceedings the accused submitted a motion for a new trial, which was overruled, and by judgment rendered on the 20th of January last he was sentenced for the crime of voluntary manslaughter, perpetrated upon the person of Carlos Ma. Alvarez, to the penalty of ten years’ imprisonment at hard labor, to be served in the penitentiary of San Juan, and to the payment of costs.
Subsequently counsel for the accused presented a bill of exceptions to the court for settlement. The first part of the bill of exceptions contains an analysis of the testimony of the witnesses who testified on the trial, pleading the absence of evidence to sustain a judgment of conviction against his client; whereas the second part, and the one which is important, relates to the delivery to the jury, without the knowledge of the defense, of the depositions of witnesses who testified upon the preliminary proceedings, many of which were made by persons who did not appear before said jury. In a separate writing an appeal was taken from the order overruling the motion for a new trial and from the judgment of conviction.
As the testimony of the witnesses upon the trial was not made to appear in any way, the judge did not deem it proper to certify to the testimony of said witnesses in the bill of exceptions, and with respect to the second matter, the trial judge, having rcognized the truth as to the delivery to the jury of the record of preliminary proceedings through the bailiff of the court, without the intervention of the defense, gave as a reason in justification of such fact the following, to wit: “The impossibility of the jury’s informing itself from a proceeding instituted long before the jury law went into effect in Porto Pico, and the no less impossibility of separating the documents which could be taken out by the jury according to section 83 of the act of January 31, 1901, from those which should be [411]*411withheld by the court, because this selection is equivalent to the mutilation of a record of preliminary proceedings which, taken as a collection of public documents, cannot be taken apart by any judge voluntarily and at will. ’ ’
For these reasons the trial judge overruled the exceptions and, in conformity with section 145 of the jury law, ordered the decision to be filed with the hill of exceptions presented. Thereafter the appeal taken from the judgment was admitted, and the necessary copies, together with the old record of preliminary proceedings, were transmitted to this court. After the expiration of the period of citation, Attorney José C. Bamos appeared upon the appeal, and in the then condition of the record he was held to he a party, without the appellant having made the deposit required as security for costs or being required to make oath as to his insolvency, as was requested when the record was in the possession of the Fiscal. The appellant, through his counsel, presented a writing in this court alleging that two errors had been committed, one being the desire expressed by the trial judge to know the names of the jurors who voted in favor .of and against the accused on the first deliberation, and the other consisting in the delivery of the record of the preliminary proceedings in the manner previously set forth, and after the jury had again retired to deliberate. The errors, in the opinion of the defense, establish the necessity for a new trial; and the Fiscal concurs in this conclusion.
We have deemed it advisable to have before us all of this data in order properly to determine the questions submitted for our consideration. It is not now necessary to consider the first part of the bill of exceptions presented to the trial judge, because it relates to the question as to whether or not evidence exists to sustain the conviction of the accused, and we will therefore limit ourselves for the present to the defects in the proceedings. Upon a consideration of the first error assigned, we are at once constrained to recognize that [413]*413if the secrecy which should he maintained in the deliberations of the jury had been violated it would have involved serious consequences, inasmuch as the spirit pervading the law which gave life to the institution upon this point is that such process should be carried out in complete privacy, as secrecy in this case is a guarantee of the independence and liberty of the jury, which guarantee and independence likewise contribute to make the verdict a faithful reflection of honest, independent and free convictions. Fortunately, however, it does not appear from the record that the names of the jurors who cast favorable and adverse votes on the first deliberation were revealed, because after the question was propounded with that object in view the Fiscal interposed his objection, and this was a sufficient reason for suppressing a matter concerning which absolute silence should have been maintained.
But there comes before us for consideration the other error alleged in this court to have been committed, and assigned in the bill of exceptions to which we have referred, namely, the delivery to the jury of the record of preliminary proceedings without the knowledge of the parties, and, consequently, while the court was not in public session.
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Me. Justice FigueRas
delivered tbe following opinion of tbe court:
Tbe appellant in-this case was ordered to be prosecuted, [407]*407jointly with Jnan Arroyo Adorno, Prisco Padilla and Tomás. Colón 'Sánchez, for complicity in the violent death of Carlos Ma. Alvarez, which occurred in the barrio ‘Hato Viejo,’ municipal district of Ciales, on November 5, 1898.
The preliminary proceedings followed their natural course according to the practice which then prevailed. The penal action was declared extinguished with regard to Colón Sán-chez by reason of his death, Simeón Eeyes was declared a fugitive, and the proceedings against him were suspended until December 28, 1898, when judgment was pronounced qualifying the act as murder, declaring the defendants present, Padilla and Arroyo, to be the guilty parties, and sentencing them to the penalty of life imprisonment, the usual accessory penalties, indemnification of the family of the deceased, and to pay one-fourth of the costs. Said judgment was declared final for failure to take an appeal therefrom within ten days after notice thereof was given.
Simeón Eeyes, the appellant in this case, was captured on the morning of July 17,1903. The prisoner having been taken before the Arecibo court, the accusatory conclusions of the Fiscal were read and he was asked whether he confessed himself guilty of the crime, to which he answered in the negative, his counsel adding that he desired a jury trial, which request was granted.
On the 18th of January of the present year, a jury was duly impaneled, the evidence was taken, and Prisco Padilla, Eulogio Colón, Enrique Valdivieso, Juan G-alíndez and Os-baldo Freites testified as witnesses. The jury, after having deliberated, announced through their foreman that they could not agree upon a verdict, seven of their number having voted against and five in favor of conviction. The judge expressed a desire to know the names of the jurymen who maintained opposite views, to which the Fiscal excepted on the ground that the deliberations of the jury ought to be secret. Said exception was noted, and, the jury having again retired, re[409]*409turned into court with, a unanimous verdict finding the defendant guilty of the crime of voluntary manslaughter. At this stage of the proceedings the accused submitted a motion for a new trial, which was overruled, and by judgment rendered on the 20th of January last he was sentenced for the crime of voluntary manslaughter, perpetrated upon the person of Carlos Ma. Alvarez, to the penalty of ten years’ imprisonment at hard labor, to be served in the penitentiary of San Juan, and to the payment of costs.
Subsequently counsel for the accused presented a bill of exceptions to the court for settlement. The first part of the bill of exceptions contains an analysis of the testimony of the witnesses who testified on the trial, pleading the absence of evidence to sustain a judgment of conviction against his client; whereas the second part, and the one which is important, relates to the delivery to the jury, without the knowledge of the defense, of the depositions of witnesses who testified upon the preliminary proceedings, many of which were made by persons who did not appear before said jury. In a separate writing an appeal was taken from the order overruling the motion for a new trial and from the judgment of conviction.
As the testimony of the witnesses upon the trial was not made to appear in any way, the judge did not deem it proper to certify to the testimony of said witnesses in the bill of exceptions, and with respect to the second matter, the trial judge, having rcognized the truth as to the delivery to the jury of the record of preliminary proceedings through the bailiff of the court, without the intervention of the defense, gave as a reason in justification of such fact the following, to wit: “The impossibility of the jury’s informing itself from a proceeding instituted long before the jury law went into effect in Porto Pico, and the no less impossibility of separating the documents which could be taken out by the jury according to section 83 of the act of January 31, 1901, from those which should be [411]*411withheld by the court, because this selection is equivalent to the mutilation of a record of preliminary proceedings which, taken as a collection of public documents, cannot be taken apart by any judge voluntarily and at will. ’ ’
For these reasons the trial judge overruled the exceptions and, in conformity with section 145 of the jury law, ordered the decision to be filed with the hill of exceptions presented. Thereafter the appeal taken from the judgment was admitted, and the necessary copies, together with the old record of preliminary proceedings, were transmitted to this court. After the expiration of the period of citation, Attorney José C. Bamos appeared upon the appeal, and in the then condition of the record he was held to he a party, without the appellant having made the deposit required as security for costs or being required to make oath as to his insolvency, as was requested when the record was in the possession of the Fiscal. The appellant, through his counsel, presented a writing in this court alleging that two errors had been committed, one being the desire expressed by the trial judge to know the names of the jurors who voted in favor .of and against the accused on the first deliberation, and the other consisting in the delivery of the record of the preliminary proceedings in the manner previously set forth, and after the jury had again retired to deliberate. The errors, in the opinion of the defense, establish the necessity for a new trial; and the Fiscal concurs in this conclusion.
We have deemed it advisable to have before us all of this data in order properly to determine the questions submitted for our consideration. It is not now necessary to consider the first part of the bill of exceptions presented to the trial judge, because it relates to the question as to whether or not evidence exists to sustain the conviction of the accused, and we will therefore limit ourselves for the present to the defects in the proceedings. Upon a consideration of the first error assigned, we are at once constrained to recognize that [413]*413if the secrecy which should he maintained in the deliberations of the jury had been violated it would have involved serious consequences, inasmuch as the spirit pervading the law which gave life to the institution upon this point is that such process should be carried out in complete privacy, as secrecy in this case is a guarantee of the independence and liberty of the jury, which guarantee and independence likewise contribute to make the verdict a faithful reflection of honest, independent and free convictions. Fortunately, however, it does not appear from the record that the names of the jurors who cast favorable and adverse votes on the first deliberation were revealed, because after the question was propounded with that object in view the Fiscal interposed his objection, and this was a sufficient reason for suppressing a matter concerning which absolute silence should have been maintained.
But there comes before us for consideration the other error alleged in this court to have been committed, and assigned in the bill of exceptions to which we have referred, namely, the delivery to the jury of the record of preliminary proceedings without the knowledge of the parties, and, consequently, while the court was not in public session. In this record, which we have considered with all due attention, appear the written statements of witnesses who did not testify before the jury, and the judgment of December 28, 1908, also appears, condemnatory of the two accused, and which judgment, in the findings of fact, contains matter fixing the serious liability of the present appellant, Simeón Beyes, at that time a fugitive from justice. It must he presumed that the jury informed itself of all these matters in the record, and there then comes into the mind the doubt as to whether all these new and unexpected impressions, which inclined the consciences of the jurors against the accused, who had neither the time nor the opportunity for presenting matter of defense, did not exercise a powerful influence in determining the unanimous verdict of guilty. That verdict, in the circumstances [415]*415in which it was rendered, must necessarily be void, since it cannot be regarded as the reflective and dispassionate analysis of those elements of proof which had been settled in open conrt and submitted in snch form for the consideration of the jury.
Said verdict mnst also be held void for the reason that it mnst be presumed that it is impregnated, as an integral part of its genesis, with the objections to the former written procedure, which is so openly rejected by all modern laws of criminal procedure. In this state of the case there has been a violation of section 83 of the Jury Law of the Legislative Assembly, approved January 31, 1901, and section 274 of the Code of Criminal Procedure, which lay down the same doctrine, namely, that upon retiring for deliberation, the jury may take with them only documents and papers which have been received as evidence in the cause, or copies of the same when they ought not to be taken from the person having them in his possession, but in no ease should the testimony or depositions of witnesses, as they are so denominated in the jury laws previously cited, be delivered to them. The delivery of the record of preliminary proceedings cannot be justified by the fact that the same was very old, for whether it was or not, it should always be considered whether it contained matter prejudicial to the accused, which was not used as evidence at the jury trial, thus undergoing the criticism to which it might be subjected by the prosecution and defense. In such case, regardless of the time it was in existence, it could under no circumstances be submitted to the jury.
Neither could such action be excused upon the ground that it was impossible to mutilate said record.. Section 274, cited supra, permits the jury to take copies with them, but always upon the unavoidable condition that the originals have been produced and analyzed on the trial by the jury, and with the knowledge of the parties. The provisions of law which specifically prohibit the delivery of documents not [417]*417embraced in the cases authorized by law" have therefore been violated, and as the record of preliminary proceedings containing documents and the testimony of witnesses which were not introduced in evidence on the trial was sent to the jury, the unanimous verdict of guilty cannot prevail, because we are obliged to presume that it was engendered by an examination of other evidence received by the jury outside of the court room. Subdivision 2 of section 15'3 of the Jury Law of January 31, 1901, and subdivision 2 of section 303 of the Code of Criminal Procedure are agreed upon the remedy for such a grave wrong. We áre therefore of the opinion, after having given the matter our most careful consideration, and after weighing the consequences of a verdict which is so manifestly vicious as to involve the nullity of the same, that the judgment rendered by the trial judge should be reversed, and the case returned for a new trial.
So ordered.
Chief Justice Quiñones and Justices Hernández, Sulz-bacher and MacLeary concurred.