Mr. Justice Snyder
delivered the opinion of the Court.
José Soto Zaragoza and Harry Lake Penn were convicted in the district court, San Juan Section, on a charge of possession of bolita materials in violation of § 4 of Act No. 220, Laws of Puerto Rico, 1948. They appealed to this Court from a judgment sentencing them to jail terms of two years and one year, respectively. Thereafter we granted their motion for permission to desist from the appeal. The defendants thereupon filed a motion in the lower court praying that the judgment be set aside on the ground that it was obtained by fraud. After hearing testimony by both sides on this issue, the lower court granted the motion. The case is here on appeal by the People from the order of the lower court setting aside the judgment. (1)
I
One of the errors assigned by the People is in effect that the lower court committed manifest error in weighing the evidence on the motion to set aside the judgment. This assignment makes it necessary to summarize the pertinent evidence presented both at the trial and at the hearing on the motion.
Testimony at the Trial
Modesto Castro, a detective, testified that on May 27, 1950 at 11 p. m. he was in the detective headquarters at stop 6% on Fernández Juncos Avenue in San Juan with three men who had been arrested on a bolita charge. A young man arrived and inquired why the three men were under [55]*55arrest. He asked the young man if he was “travelling” with them. The latter replied in the negative, stating that he was “travelling” with Soto. Sergeant Costas, who heard this conversation, told the witness and detective Quiñones to take a walk around the block.
Quiñones and the witness went down Fernández Juncos Avenue toward San Juan. When they got about 70 feet from the police station, they saw Soto and Lake Penn in the front seat of a Cadillac automobile with the light on inside the car. When they were 8 feet from the automobile, he saw that Soto had in his hands yellow papers with lists of numbers consisting of 3 digits “with units to the right”. In order to be certain, he used a flashlight to see the materials Soto and Lake Penn had in their hands. When they approached the car, Lake Penn gave Soto other lists, and Soto put them together and threw them on the rear floor of the car. He told Quiñones to get these lists. Quiñones got into the rear of the car and picked up the lists. Lake Penn tried to start the car, but the witness turned off the switch, got into the car and drove it to the police station.
He searched Soto at the station and found certain documents in the right pocket of his jacket, which were thereafter introduced in evidence. He also found on Soto a considerable sum of money, which was thereafter stipulated as $1,937, which he returned to Soto. He identified 36 lists of numbers of 3 digits followed by a dash and other numbers as those he had seen in the hands of Soto and Lake Penn and which Soto had thrown on the rear floor of the car. These lists were thereafter admitted in evidence.
After the defendants were taken to the station, he and Quiñones searched the car but did not find any other bolita materials. They found some bottles of whiskey in the trunk of the car and some lottery tickets and inscriptions of horses in the glove compartment. The witness explained in detail how the game of bolita is played.
[56]*56Federico Quinones, a detective, corroborated the testimony of Castro up to the time they reached the Cadillac automobile. However, he testified that the defendants only had lottery lists and tickets in their hands when he and Castro accosted them. The witness then testified that Lake Penn drove the car to the police station, with Castro in the rear and the witness in the front. When they arrived at the station, the witness went upstairs to check the lottery lists to see if they contained bolita numbers. While he was doing this, detective Rivera Rosa called him to help search the car. When the witness got to the car, he opened the rear door and found bolita lists on the floor. He said, “Don’t search any more, here is the evidence”.
A sworn statement by Quiñones, which was in substance the same as Castro’s testimony, was offered by the People to impeach Quiñones’ testimony and was admitted in evidence without objection by the defendants. Quiñones explained that he had decided to correct the “errors” in his sworn statement because shortly after he made the statement his father and brother died and his sister became a patient in the insular insane asylum. At the request of the district attorney, Quiñones was placed in custody with a view to prosecution for perjury.
Ramón Pérez Méndez, the first witness for the defendants, testified that on the night in question he accompanied Soto and Lake Penn, Soto’s chauffeur, when they went to the police station in Soto’s car after they had heard of the arrest of Santos Lake, the half brother of Lake Penn. They parked 5 or 10 feet from the station. He asked Castro what the charge was against Santos. Castro did not answer but said “you are travelling with Chichi”. Quiñones and Castro went toward the car with a flashlight and he went with them. Neither Soto nor Lake Penn had anything in his hands when Quiñones and Castro approached the car. The detectives .opened the rear door and searched the car but they found nothing. Quiñones got in the rear and Castro in the front. [57]*57The witness tried to get in the car, but Castro told him not to do so and to go to the station. They drove the 10 feet to the station. Quiñones got out of the car and went up to an office where Sergeant Costas was.
Castro stayed in the car. Quiñones and two more detectives came down to the car. They began to search the car and Quiñones appeared with bolita pages which he had found in the rear of the car. Soto said, “They are going to put me in prison, the devils”. Quiñones replied, “It is impossible for me to plant bolita numbers in your car as I do not know you.” Soto then stated that they would pay dearly for this, that “you could not put me in jail in this manner.” Neither Soto nor Lake Penn was searched before he went into the station.
Harry Lake Penn corroborated in substance the testimony of Pérez Méndez. He added that at the request of Castro he opened the trunk of the car after it was parked at the station. While Soto and he were taking cases of whiskey out of the trunk, detectives Quiñones, Luis Parrilla and Rivera Rosa came down from the station to search the car. Quiñones opened the back door of the car and said, “it is here, do not look anymore”.
The police made an inventory of the cases of liquor in the trunk and the lottery tickets and horse inscriptions they found in the glove compartment and delivered them to him after he signed the inventory. A detective called a taxi for him in which he departed, carrying the whiskey, lottery tickets and horse inscriptions. Several hours later, at 3 a. m., Sergeant Costas accompanied by other detectives arrested him at Stop 15 in Santurce.
On cross-examination the witness testified that he had been Soto’s chauffeur for 10 or 15 years, that Soto has many houses, that he does not know if Soto is engaged in any other business. The testimony of Lake Penn that he was permitted to depart from the station in a taxicab after Soto’s arrest [58]*58was corroborated by the taxicab driver and by the records of the taxicab company.
In finding the defendants guilty and sentencing them to jail terms, the lower court said: “The Court believes the proof of the People, the testimony of Modesto Castro and of Federico Quiñones Padró, even though there are certain inconsistencies between the testimony given today before this Court and that given before the district attorney. However, these contradictions are not substantial. Substantially the witness corroborates the testimony of Modesto Castro. But even thus, the testimony of Modesto Castro is worthy of belief by this Court.”
We turn now to the evidence adduced before the district court on the motion which was thereafter filed to set aside the judgment rendered at the trial on the ground that it was obtained by fraud. The theory of Soto and Lake Penn in filing the motion was that a number of bolita lists had been seized in the possession of Luis Santos Lake on May 27, 1950 and that some of them were planted that same night in Soto’s automobile while it was parked near police headquarters.
Testimony at Hearing on Motion to Set Aside Judgment
Luis Santos Lake testified that he, Francisco Vázquez and one Muskus were arrested on May 27, 1950 at 9 p. m. on a bolita charge. The detectives found 3 packages of bolita collections in his possession. He then testified as to how he had obtained possession of the three packages. He worked for a bolita banker. His job was to collect lists of numbers from the banker’s agents at regular intervals. In order to identify the agent from whom he obtained each list, a different code number or word was used for each agent. The number or word corresponding to each agent was written on each list collected from the agent. The lists collected from each agent were kept in a separate package.
The three packages found in his possession when he was [59]*59arrested were marked in the aforesaid manner. One was from Barrio Obrero and had the word “rio” on the back of each of its lists. The other two were from Loiza Street, and each list in these packages was marked “6” and “14”, respectively. The “14” collection was peculiar in that the “14” looked like a “17” in each instance. The witness, Váz-quez, and Muskus were taken to the police station at stop 6% in San Juan and locked up in the bull pen. The 3 packages were put on a desk in the detective headquarters and he did not see them any more.
He was present at “some parts” of the trial of Soto and Lake Penn, which took place on June 30, 1950. He pleaded guilty on July 6, 1950. He was present at the trial of Váz-quez and Muskus, which was held on July 13, 1950. When the “14” collection was presented in evidence at the latter trial, he noticed that the number of lists was considerably smaller than when it was seized in his possession. Originally, all three collections consisted of more or less the same number of lists.
He was shown the lists introduced in evidence by the People at the trial of Vázquez and Muskus. They consisted of 62 pages of the “6” collection, 57 pages of the “río” collection, and only 11 pages of the “14” collection. He identified them as being the “6” and “río” collections and pari of the “14” collection seized in his possession on May 27. He was then shown 36 lists introduced in evidence by the People at the trial of Soto and Lake Penn. He stated that these 36 lists were part of the “14” collection seized in his possession when he was arrested. He was sure of this for two reasons. First, each of these 36 lists had on the back the same peculiarly written “14” — a “14” which looks like a “17” — which was always written on the back of every list in the “14” collection. Secondly, he remembered having himself played 15‡ on the number 101-CB with a bolUero named Pedrin Santiago, whose lists were a part of the “14” collection. And now, examining on the witness stand the two packages of [60]*60lists with “14” on the hack of each list — the 11 lists used at the Vázquez trial and the 36 lists used at the trial of Soto —he finds a wager of 150 on 101-CB at the top of one of the 36 lists and no such wager in any of the 11 lists. (2)
On cross-examination he testified that on May 27, 1950 he was collecting bolita lists for Roberto Andújar. He does not know any other bolitero. He does not know what business Soto is engaged in, although his half brother is Soto’s chauffeur. He has never heard Soto-mentioned as a boli-tero and has never collected bolita numbers for him. He went to see Lie. Jiménez Sicardó after the Vázquez trial and told him to find out if the lists in the case against the defendant had a “14” on the back thereof. He did this because his brother was involved in the matter. He knew that his brother and Soto had been arrested on a bolita charge on the same night he was arrested but he did not come to their trial to testify. He does not know the name of the agent for the “14” collection. The latter used to leave the collection for him under a garbage can near a green bar on Loiza Street. Although he did not count the number of lists in each, collection, he could tell more or less how many there were in each list when he collected them.
On redirect examination he stated that Soto was arrested and put in the bull pen with him at midnight on May 27, 1950. He did not go to see Lie. Jiménez Sicardó until after the trial of Soto because he did not know what collections the government was going to present in evidence against Soto. Thereafter he went to see Lie. Jiménez Sicardó to tell him to see if the lists used against Soto were those seized on the witness.
On further cross-examination he stated that he did not believe that two boliteros could have the same identifying number on the back of their lists. On redirect examination [61]*61he stated that he was the only person in charge of collecting the “14” collection for Andújar and that he collected all the “14” lists on May 27, 1950. The “14” agent did not write numbers for any banker other than Andújar.
Lie. Gustavo Jiménez Sicardó testified that after the trial of Soto and Lake Penn on June 30, 1950, Santos came to his office and told him that “To me the evidence introduced against Soto are the papers they seized on me.” He went to court and saw the number which looked like a “17” on the back of each of the lists introduced in evidence against Soto. He told this to Santos, and the latter replied that they were his. He could not see the lists in the case against Santos as the latter had not yet been tried and the district attorney would not let him see them. Santos pleaded guilty on July 6. On July 13 Vázquez and Muskus were tried. Santos testified at their trial. Vázquez was convicted and Muskus was acquitted. At this trial the district attorney conceded that the samé person had written the “14” which looked like a “17” on the lists introduced in evidence in both the Vázquez and the Soto cases. (This same concession had already been made at this hearing.)
He also became aware of an additional piece of evidence at the Vázquez trial. He explained that “limited numbers” are those which have a limit as to the amount which can be wagered thereon because they are “dream numbers”, or for some other reason. Vázquez told- him that a list of dream numbers which had been introduced in evidence against Soto was his and had been seized in his possession on the night of May 27. In addition, he heard Vázquez testify at the latter’s trial that Sergeant Costas went into the office, took some of the papers which had been seized from Santos, and went towards Soto’s car. .
A few days later, after the trial of Soto and Lake Penn, the witness asked Santos if there were any other ways besides the peculiarly written “14” by which he could identify the lists of the “14” collection. After thinking a while, Santos [62]*62told him that he used to play 101-CB for 15‡ in the “14” collection and that such a wager must be on the “14” lists seized in his possession. The witness came to court and looked at the lists introduced at the trial of Vázquez. No such number appeared in these lists. He came to the Supreme Court where the Soto appeal was pending to look at the lists which had been introduced in the case against Soto and Lake Penn but was not permitted to see them as the exhibits were in sealed envelopes.
Francisco Vázquez Ortiz testified in the same manner as Santos as to their arrest, together with Muskus, on May 27, 1950 at 9 p. m. In addition, he stated that when he was searched the detectives found in his possession and took from him a yellow paper with printed numbers which came from a dream book. He was shown various papers which were presented in evidence against Soto at the trial of the latter. He selected from them a yellow paper and said it was the paper which had been seized in his possession. It was a series of numbers consisting of three digits but without units to the right. He used the paper “to look for dreams to play”. It had no relation to bolita as such.
He, Muskus and Santos were put in the bull pen at police headquarters after they were arrested. About 11:45 p. m. Castro took the materials seized on Santos into the office of Costas and put them on a desk. Costas and Castro began to open them. They consisted of three packages of lists in a paper bag. They took the lists out of the packages and scattered them on the desk. From the bull pen he could see the entrance and he could also see outside. About midnight he saw a young man appear and ask for Santos. Castro .asked the young man if he travelled with them. The latter replied that he was with Soto. Costas told Castro and Qui-ñones to take a walk. About 15 minutes later a large car arrived and parked in front of the station and directly in front of the bull pen, about 25 feet from the bull pen. Two persons dismounted. One of them, Quiñones, was carrying [63]*63a package of lottery tickets. He entered Costas’ office and Parrilla and Rivera Rosa left the office.
While Quiñones was checking the lottery tickets, Costas took a handful of the lists which had been seized from Santos and which were scattered on the desk. He went outside with the lists in his closed fist, leaned on the right rear part of the car, and put the lists in the car. He then walked away from the car. He no longer had the lists in his hand. He called Quiñones to search the car. Quiñones descended and searched the rear of the car. Costas came back into the station.
A violent discussion then began between Soto, Lake Penn and the detectives. Before Costas went down the steps with the lists in his hand, the trunk of the car had been searched by detectives Castro, Rivera Rosa and Parrilla while Qui-ñones was examining the lottery tickets. About 15 minutes later Castro and Costas put Soto in the bull pen with them. Costas told Lake Penn to take away the cases of whiskey they found in the car. Costas told Lake Penn he could leave and he left in a taxi, taking the cases and the lottery tickets, which were returned to Lake Penn. Soto was not searched personally. He saw Lake Penn later in the morning in jail.
On cross-examination he stated that he did not know in what business Soto and Lake Penn were engaged. He told the story about Costas taking the lists and putting them in the car for the first time on October 11, 1950 to Lie. Jiménez Sicardó. He has served two sentences on bolita charges and is now a público chauffeur.
Ramón Rivera Vizcarrondo testified that two or three days before May 27, 1950 he was in the district court waiting to serve as a juror. Costas arrived with some boliteros he had arrested. He heard Costas say, “I caught this small fry and I am going to catch Chichi with or without a collection”. (3) He went to see his friend Soto and told him what [64]*64Costas had said. At that point the district attorney stated, “At this time I request that Sergeant Costas be summoned. A charge has been made against this officer and it is logical that he defend himself.” The court thereupon directed that Costas be summoned to appear the next morning.
José Soto Zaragoza testified that on the night in question his car was searched in front of the station by Quiñones and Castro. The inside light was on and the detectives searched the rear of the car with a flashlight but found nothing. Quiñones went up into the station with some lottery tickets which had been seized from the witness while the latter had them in his hands.
Castro took the key away from Lake Penn and he and Parrilla went to search the trunk. They could not open the trunk and called Lake Penn to open it. The latter did and some cases of whiskey were found in the trunk. Castro ordered Lake Penn to take them out. “While this was being done, Sergeant Costas passed and leaned on the rear door of the car with his right arm inside the car and looking back toward us. As the car had been searched twice by Parrilla, Rivera and Castro, I gave this no importance. He went upstairs and as he went up detective Quiñones came and directing himself toward us with some papers in his hands, he said: ‘Don’t look any more, here it is’. I said, ‘Look you bandit, how can you say that is here? You put that here yourself’ ”.
Quiñones and Parrilla then went up into the station and they went to the rear with Costas. They left him and Lake Penn in front of the station. About 20 minutes later Cos-tas and Castro came out and put him in the bull pen with Santos, Vázquez and Muskus. Lake Penn was not arrested and he left in a taxi with the cases of whiskey and the lottery tickets. Three or four hours later they arrested Lake Penh. The witness was not searched at the station, but was searched at the jail, where nothing was found in his possession except $1,937 in cash. He had never before seen the bolita lists [65]*65which were presented in evidence at the trial against him. He explained the nature of several other documents presented in evidence at the trial by the People, which we find-it unnecessary to summarize.
On cross-examination he explained how bolita is played. He was in the bolita business until May 3, 1949, when detective Virella “framed him.” On that occasion he was searched in the street and nothing was found on him. He was searched later at the station and a paper was found in his pocket. He explained again the nature of the documents which we have not described in detail. He knew what Rivera Vizcarrondo had told him before he was tried on June 30, 1950, but he learned about the coincidence as to the two groups of lists for the first time after his trial.
On redirect examination he testified that he went to the station to obtain a bond for a brother of Lake Penn. When asked if he had bolita lists with him at that time, he replied, “How could I go in front of the station with bolita lists!” From his previous experiences with bolita, he knows that two collectors could not use the same number “14”. He explained how he was robbed on one occasion and this caused him to require thereafter that each collector be identified by a number. - “It is the same with 14”. A collector works only with one banker and 14 could therefore be the number of only one collector. If there were another collector using “14”, he would be a collector for another banker; otherwise, mistakes would be made in paying the prizes.
Sergeant Luis V. Costas was the only witness for the People. He testified that he had never spoken to Rivera Viz-carrondo, whom he knew by sight, on May 27, 1950 or on any previous occasion in connection with bolita or anything else. The record of the evidence taken at the trial of Soto and Lake Penn was also introduced in evidence.
Thereafter the district court entered an order setting aside the judgment sentencing the defendants to jail on the ground that it was obtained by fraud. The lower court [66]*66based this, order on its findings of fact that the lists of bolita numbers allegedly found in Soto’s automobile on the night of May 27, 1950 had in fact been seized in the possession of other persons who were arrested on the same night for the same crime; that these lists were thereafter “fragmented or separated”; and that part of them were then “introduced” into Soto’s automobile in order to make it seem that they had been seized in the automobile.
In arguing that the lower court committed manifest error in weighing the evidence on which it based its findings of fact, the Fiscal of this Court emphasizes two points: (1) certain discrepancies in the testimony at the two hearings; (2) the witnesses who testified that they saw Costas deliberately plant bolita lists .which had been seized in the possession of Santos in Soto’s automobile were confessed bolite-ros and were undoubtedly lying as to certain matters; for example, that they had never known Soto by reputation as a bolitero.
Both, of these points might in the ordinary case be quite persuasive to the trier of the facts. As the Fiscal points out, there was a conflict in the testimony of various witnesses on several matters: (1) whether the automobile was parked in front of the station or 70 feet away when the detectives first approached it; (2) whether the defendants had bolita materials, lottery tickets, or nothing in their hands at that time; (3) who drove the car to the station from the place where it was originally parked. In the ordinary case these discrepancies, which are apparent from our summary of the evidence, might have considerable bearing on the general credibility of the witnesses in question. In the same way, the criminal records of the principal witnesses for the defendants, the blood relationship of one of them to Lake Penn, and the fact that they were obviously lying in parts of their testimony would ordinarily cast doubt on their credibility. But here the overriding consideration, which undoubtedly persuaded the lower court that the boliteros and not the [67]*67detectives had told the truth as to the principal facts in controversy, was the documentary evidence.
It cannot be reasonably disputed that the lists introduced in evidence against Soto and Lake Penn were a part of the “14” collection which was picked up by Santos on the night of May 27 from the agent for the “14” collection. Once that is conceded, it is difficult to see how the “14” collection could have been seized on the same night in two separate parts in the hands of Santos and in Soto’s car, respectively. On the contrary, in the absence of a plausible explanation to the contrary, it is logical to assume that once Santos received the “14” collection from the agent, when arrested he would either still have it intact or would have turned the entire collection over to the banker. But both parties agree that Santos was in possession of at least a part of the “14” collection when he was arrested. The conclusion is therefore almost irresistible that he had. the entire collection with him at that time. And the fact that some of the lists thereafter somehow disappeared from the custody of the detectives and found their way into Soto’s car parked near the station is highly corroborative of the oral testimony that these lists were planted in Soto’s car.
Although not as convincing as the foregoing, three pieces of evidence lend some support to the appellees’ theory. The first is that a list of “dream numbers” was admittedly among the documents introduced in evidence against Soto. Yet Vázquez testified that the list belonged to him and had been in his possession when he was arrested with Santos. The second is that a wager of “CB 101 for 15(5” is contained in one of the lists introduced in evidence against Soto. But Santos testified that he had made precisely this wager and that it was included in the “14” collection. The third is that Santos testified that the three collections contained more or less the same number of lists. And, as we have seen, the 36 lists from the “14” collection introduced at Soto’s trial plus the 11 lists from the same collection introduced at Váz-[68]*68quez’ trial approximate the number of lists in the “rio” and the “6” collections, respectively.
While not too significant in themselves, two other episodes of a negative character also tend to confirm the theory that a scheme to frame Soto was perpetrated. The detectives failed to seize the $1,937 in his possession; they also failed to arrest Lake Penn at the scene of the alleged crime. If they had actually apprehended Soto and Lake Penn handling bolita materials in the former’s automobile near police headquarters, they would havé probably impounded the money for possible confiscation in connection with the bolita charge. And they would also have probably arrested Lake Penn' immediately instead of arresting Soto and releasing Lake Penn and then arresting the latter several hours later when it belatedly occurred to them that his release was inconsistent with their trumped-up story that Soto and Lake Penn had been handling bolita materials together. These two omissions by the detectives, when considered in the light of all the other evidence in the case, seem to indicate that the^ mind of the ring-leader was focused so intensely on the scheme to frame Soto that he overlooked two obvious steps he should have taken to avoid the charge that the evidence against Soto had been contrived.
It should be added that Soto testified'that he had been a bolita banker. The police were aware of this and were attempting to apprehend him. Cf. People v. Soto, 71 P.R.R. 776. It therefore seems hardly likely that he would park near police headquarters — whether 10 or 70 feet away — and proceed to handle bolita lists with this chauffeur.
At first blush it seems dubious that a police officer would engage in such a crude and flagrant frame-up in full view of the occupants of the bull pen. But it may be that Costas was not aware that they could see him or were watching him. In addition, he obviously did not know that the lists he was planting in Soto’s car could be unmistakably traced to the “14” collection originally obtained by Santos from the [69]*69agent. He might therefore have thought that it would he only a question of his word against the word of boliteros. Under those circumstances, he was perhaps confident that the district court would not believe the oral testimony of boliteros that the lists had been planted in Soto’s car, especially as this is a favorite, although usually false, defense presented by defendants charged with possession of such things as bolita materials and narcotic drugs. In any event, whatever Costas’ reasoning might have been, we cannot ignore the highly significant documentary evidence merely because the conduct attributed to Costas was not only corrupt but also foolhardy. In this connection, we think it is significant that Costas never denied the story that he planted bolita lists in Soto’s car, in spite of the fact that he took the stand to deny the comparatively trivial' charge that he once threatened to arrest Soto “with'or without a collection”.
The Fiscal of this Court argues that when Soto in his testimony explained why the number “14” was placed on the back of the lists for a particular collection and why “14” would not be used by any other agent of the same banker, he in effect admitted that this collection was made for him as a banker. We do not so interpret his testimony. As we read it, he was indicating in a general way why he and other bankers decided to avoid problems as to payment of prizes by identifying each collection with a code number. But even if we assume that Soto practically admitted that the collection was for him and that Santos was lying when he testified it was for Andújar, we fail to see how that helps the government’s case.
Soto was not tried on the charge of operating a bolita bank. He was accused of possession of certain bolita lists. In its conclusions of fact the district court found that Santos, and not Soto, had been in possession of these lists and that they were thereafter planted in Soto’s car. If we accept those findings, it is immaterial, for purposes of this [70]*70case, whether Santos collected these lists for banker Andújar or banker Soto. If Soto is a banker, he should be charged, tried, convicted and punished for that offense. But if we accept the findings of fact that the lists in question were seized in Santos’ possession and planted in Soto’s car, we cannot permit a judgment of conviction on a charge of possession to stand, merely because an inference might conceivably be drawn from the record that Santos was in possession as an employee of Soto. Under those circumstances, the fraud vitiated the judgment rendered on a charge of possession irrespective of Soto’s guilt or innocence of the different charge — operation of a bolita bank — which has not been brought against him.
As noted in our summary of the evidence, certain documents other than the lists from the “14” collection were introduced in evidence at the trial of the appellees. However, unlike the bolita lists allegedly found in Soto’s car, these other documents are,not typical bolita materials such as those found in People v. Mantilla, 71 P.R.R. 35, 49, and in People v. Acevedo, 70 P.R.R. 534. Since they are not prima facie incriminatory, we find it unnecessary to examine in detail the testimony of Soto on cross-examination that they concerned his racing and night club businesses. It is enough to say that there is nothing in the record to show affirmatively, either on the face of the documents or any evidence explaining them, that these other documents were bolita materials. We reach the same conclusion with reference to the only remaining document introduced in evidence at the trial of Soto and Lake Penn; namely, the printed list of “dream numbers” which consisted of three numbers without digits to the right. Apart from the fact that Vázquez testified — and the lower court apparently believed — that this list was his and was seized from him, it consists merely of several rows of three digit numbers with a heading which was partly torn away, with the remaining portion reading “. . . ed to $4.00”.
[71]*71We think the foregoing analysis makes it clear why we are unable to say, particularly in the face of the objective, physical facts disclosed by the documentary evidence, that the lower court committed manifest error in its findings of fact that the bolita lists allegedly found in Soto’s automobile were actually planted there after they were seized in the possession of Santos.
The evidence adduced in support of a motion in a criminal case to set aside a judgment on the ground that it was obtained by fraud must establish facts which if known at the time of the trial would probably have prevented a conviction. People v. Gerena, 72 P.R.R. 211, 223; People v. Adamson, 210 P. 2d 13, 15 (Cal., 1949); People v. Shorts, 197 P. 2d 330, 333 (Cal., 1948); Brown v. State, 35 S. 2d 518, 519 (Ala., 1948); Anderson v. Buchanan, 168 S.W.2d 48, 53 (Ky., 1943); State v. Gentry, 62 N.E.2d 860, 862 (Ind., 1945); 59 Yale L.J. 786, 788. There can be no question that the testimony here meets this requirement. In fact, the-Fiscal conceded this point at the oral argument. His only argument, which we have rejected, was that the lower court committed manifest error in giving credence to this testimony.
Finally, we have held that á defendant has a heavy burden where as here he attacks a judgment on the ground that it was fraudulently obtained. People v. Méndez, 67 P.R.R. 777, 781-82; People v. Gerena, supra, p. 216. But, accepting as we have the findings of fact in this case, it is obvious that these facts meet the test laid down in the cases; i.e., that this was not simply a case of government witnesses who might have perjured themselves, but a deliberately planned and carefully executed scheme to defraud the district court.
II
A judgment may not be set aside on the ground that it was obtained by fraud unless the moving party satisfied the trial court that he could not have discovered the evi[72]*72dence of fraud by reasonable diligence prior to entry of the judgment. People v. Méndez, supra, p. 781; People v. Gerena, supra, p. 216. The People argue that the appellees did not comply with this requirement and that Soto knew or could have discovered without difficulty the evidence in question prior to the judgment.
We agree with the Fiscal of this Court that Soto knew he had been framed prior to his trial. Indeed, the moment the detectives asserted they had found bolita lists in his car he undoubtedly realized what had occurred. But to know you are innocent and have been framed is a far cry from being able to prove it. In a somewhat similar situation we have held that such subjective knowledge, without proof thereof, does not bar. a motion to set aside a judgment when the testimony in support of the motion was obtained after the judgment was entered. People v. Gerena, supra, p. 222.
The lists allegedly found in Soto’s car were not produced until he was tried on June 30, 1950. Even at that time, although he knew they did not belong to him, he had no way of knowing, according to his testimony, that they belonged to Santos. It was only after he had been convicted and sentenced that Santos, who had been present at part of his trial, went to Lie. Jiménez Sicardó with his suspicion that the lists were part of those seized on Santos. And Vázquez did not reveal his knowledge of the frame-up until his case was tried. Presumably he preferred in his own interest to wait until his own trial to tell such an incriminatory story against the detectives.
Soto could have testified at his trial that he had seen Costas leaning on his car. And he could have summoned Rivera Vizcarrondo at the trial, instead of waiting to produce him at the hearing on the motion, to testify as to the threat Costas allegedly made to arrest Soto “with or without a collection”. But we could scarcely say that these two episodes would be sufficient to support a frame-up charge. The important and decisive proof, particularly the docu[73]*73mentary evidence, was not discovered until after the trial and judgment. Indeed, if it had not been for the peculiarly written “14”, Santos and. Vázquez might never have talked and the frame-up might never have been exposed.
Even the Fiscal of this Court does not contend that after Santos came to Lie. Jiménez Sicardó with his suspicions, Soto was not diligent. He made several unsuccessful efforts to obtain relief in the lower court. Thereafter, as the case by that time was pending on appeal in this Court, Soto and Lake Penn voluntarily desisted from their appeal, stating that they were doing so in order to file the motion herein in the district court to set aside the judgment on the ground that it had been obtained by fraud. See People v. Méndez, supra, p. 781, n. 1.
Whether the evidence of fraud was discovered subsequent to judgment is a question of fact. The lower court apparently believed the testimony of the witnesses of the appellees as to when the evidence of fraud was discovered. Here again we cannot say that this was manifest error. And once we accept this testimony, it is apparent that the appellees complied with the requirement that they must show they could not have discovered the evidence of fraud by reasonable diligence prior to entry of the judgment. People v. Méndez, supra; People v. Gerena, supra; People v. Adamson, supra, p. 16; People v. Shorts, supra, p. 336.
III
The third assignment is that Judge Ramirez Pabon erred in conducting the hearing on the motion in view of the fact that Judge Torres Aguiar, who presided at the trial, was available for the hearing on the motion.
We agree that as a general rule the judge who tried a case originally, if available, should hear a motion to set aside the judgment rendered therein, as he is in a better position than any other judge to determine the truth.. But there was no showing that Judge Torres Aguiar was available. On [74]*74the contrary, we take judicial notice that he sits regularly in the Humacao Section of the District Court and that he sat at the trial of Soto and Lake Penn in the San Juan Section by assignment. When the motion to set aside the judgment was filed, it came up in due course for hearing before Judge Ramírez Pabón, a regular judge of the San Juan Section. At that time the government was entitled to take whatever steps were necessary to have Judge Torres Aguiar assigned to hear the motion. It took no such action. Instead it now asserts for the first time on appeal that Judge Torres Aguiar rather than Judge Ramírez Pabón should have heard the motion. This contention comes too late. The People waived whatever rights it had to a hearing by Judge Torres Aguiar by failing to take appropriate action for his assignment. Cf. State v. Gentry, supra; Bolton v. State, 60 N.E.2d 742 (Ind., 1945).
IV
The fourth assignment is that the appellees were not entitled to file their motion to set aside the judgment without prior permission by this Court. The government argues that .the judgment has been affirmed; that the motion is designed to set aside our mandate directing execution of the judgment; and therefore that such action cannot be taken without our permission.
Aside from the fact that we did not affirm the judgment as Soto and Lake Penn voluntarily desisted from their appeal, the People’s contention misconceives the purpose of this motion. It is not directly concerned with our mandate. Rather it alleges that fraud was practiced on the district court. And we have held that under such allegations the lower court should pass on the issue in the first instance. People v. Méndez, supra, p. 781. In entertaining the motion the district court therefore did not flout our authority. On the contrary, it properly exercised authority necessarily vested in it to set aside as void a judgment obtained by fraud [75]*75which was practised on the lower court itself. Some cases do hold that under these circumstances permission of the appellate court is required. But the weight of authority, with which we agree, is that no such permission is necessary. Annotations, 146 A.L.R. 1230, 146 A.L.R. 818; Note, 59 Yale L.J. 786, 788. The cases relied on by the government — Taylor v. Alabama, 335 U. S. 252, and Hysler v. Florida, 315 U. S. 411 — have no bearing here. They merely reject the contention of a defendant that a statute or case requiring such permission violates due process of law.
The Fiscal of this Court also argues under this assignment that the only remedy of the appellees was to file a petition for habeas corpus and to show that the district attorney knoioingly made use of the perjured testimony of a material witness. The cases hold that such unscrupulous conduct by the district attorney is a denial of due process of law and warrants release by habeas corpus. Mooney v. Holohan, 294 U. S. 103; Hysler v. Florida, supra, p. 413; Pyle v. Kansas, 317 U. S. 213, 216; White v. Ragen, 324 U. S. 760, 764. But those cases have nothing to do with our problem. Here the district attorney did not deliberately produce perjured testimony. So far as the latter knew, the facts were as the lower-court found them at the original trial. No constitutional issue involving lack of due process could therefore be raised in this case. Rather the appellees contend that there was a scheme by others who did not simply perjure themselves but engaged in a deliberately planned and. carefully executed scheme to defraud the district court. Under those circumstances they were entitled to file a motion within the original case alleging these facts. People v. Gerena, supra; People v. Adamson, supra, p. 16.
We add a final word with reference to the implications of this case. Bolita is a serious evil in Puerto Rico, and the authorities deserve commendation for their vigorous efforts to stamp it out. See People v. Mantilla, supra, p. 46. Moreover, in his own testimony Soto demonstrated that he is a [76]*76highly unsavory character and that he has played a leading role in the harm inflicted upon this community from the operation of bolita games. We have no doubt that if he continues his nefarious practices, he will in time be apprehended and punished.
However, there is much more at stake here than the guilt or innocence of a particular individual. This was a scheme in which only one police officer and a subordinate or two participated. But in doing so they attempted to strike a vital blow at the heart of our democratic institutions. Today such a plot may involve a guilty man. The next step would be to frame the innocent. We are confident that appropriate steps will be taken to prevent the repetition of such pernicious practices. See Hazel-Atlas Co. v. Hartford Co., 322 U. S. 238, 246.
The order of the district court setting aside the judgment sentencing Soto and Lake Penn to jail terms on the ground that it was obtained by fraud will be affirmed.