People v. Sutton
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Opinions
Mr. Justice Wolf
delivered the opinion of the court.
The appeal in this case was taken from a sentence of the Second Section of the District Court of San Juan. The appellant was there charged with voluntary manslaughter, and elected to be tried by the court without a jury. The court found him guilty of the crime charged and sentenced him to five years in the penitentiary at hard labor. The •appellant asks the reversal of the judgment substantially on two grounds. An error of law is alleged to have been committed in excluding from the evidence a certificate from the superintendent of prisons ostensibly to prove the character of the dead man, José Eosa, and his penal antecedents. The objection was made that the evidence was immaterial and the court excluded it on the ground that on the defendant’s own testimony the latter was not acquainted with José Eosa before the altercation, and that although the deceased.might have been a bad man, the defendant could not have known it, and also by reason of the cases of People v. Murray, 10 Cal., 310, and People v. Edwards, 41 Cal., 640.
The bill of exceptions, besides omitting a copy of the offered certificate, fails to show that any foundation was laid [330]*330for the question. The character of the dead man was not in issue. The evidence was offered, as the record shows,, after all the other testimony in the case was given. It was incumbent upon the defendant, in order to introduce evidence-of this nature, to show, or offer to show, that he knew of the bad character of the deceased. No such proof or offer was made, and the action of the court in rejecting the evidence was not error. (Henderson v. State, 12 Tex., 525; Com. v. Straesser, 153 Pa., 452; 26 Atl., 17; Derkes v. State, 11 Ind., 557; 71 Am. Dec., 370; see note to State v. Feeley, 3 L. R. A. [N. S.], 359.)
Much stress is laid on the alleged faulty reasoning of the court in excluding the testimony, inasmuch as although the defendant did not know Rosa, yet he might have known of' the dead man’s turbulent or dangerous character. The words of the court, in Spanish, are as follows: “Niego la admisión de la, prueba que se propone por la defensa, fundándome en-que, según la propia declaración del acusado, no conocía a José‘Rosa antes de ese momento y el que f%iera un hombre:'; malo, no podía saberlo\ para actuar bajo aquella influencia, y en esos casos no es admisible la evidencia,>r etc. We think it is a fair inference, from the use of the words, possibly a little inverted in the record, “el que fuera un hombre malo’f and the state of the testimony, that the court had also in mind the question of Sutton’s knowledge of Rosa’s dangerous character. The nature of the grounds of a ruling may be gathered from all the-circumstances. Be that as it may, the giving of false grounds for rulings of this character is no reason for reversal when it is clear that the evidence was-properly rejected.
The other ground of error alleged is that the court did not give proper consideration to the defendant’s plea of self-defense according to its legal effect. This objection must mean that the conclusion of the court in finding defendant, guilty of voluntary homicide was not warranted by the evi-[331]*331deuce. The material testimony given in this case is as follows:
Flora Bosa, the sister of José Bosa, testified that her brother sent her to gather some beans while he went off to get some yucas, which is a kind of root, and as he was pulling them up the American came up and accosted him and immediately the witness heard a shot and ran toward her brother, who was already dead, and the American went off with the revolver in his hand; that the eldest child of the dead man was there and the witness saw the old man, Bar-tolo, and there was no one else; that her brother fell on his face, said no word, and died on the spot.
On cross-examination the witness said that her brother was pulling yucas with his hands because the soil was sandy and he did not have a knife; that she did not see the American come up, not until he was speaking to her brother, and that they were speaking neither low nor loud; that the witness was half a cuerda (about 100 feet) away; heard the sound of the voices, but not the words; when the witness heard the shot she looked over to where her brother was and saw him.fall, and the American run; that the witness, the daughter of the dead man, and no one else were present.
On being examined by the judge, she said that the plants from which the beans were being taken were very large and did not allow her to see her,brother very well, these plants being between her and the place where her brother was; he was alone in pulling up the yucas; that she . did not take notice of the approach of the American until he was speaking .to her brother, and she continued picking the gandules, and it did not take long before the shot was heard; and right away her brother fell to the ground with his face looking downwards; and the witness came up, and he (meaning the dead man) did not have in his hands or about him anything-but the yucas; that the American referred to is the defendant.
Juana Bivera testified that she is the mother of the wife of José Bosa, in whose house she was aiding her daughter,, [332]*332about to give birth to a child; José Rosa lived on the estate of Mr. Sutton, on a piece of land rented by him and in a house on the. place where all of them lived. On the day of the happening José Rosa was planting some yautias (a kind of root) and afterwards went to pull up some yucas to give breakfast to the family, and defendant came up and stepped forward and slapped José Rosa, who put his arms around his (Sutton’s) waist, and then the American fired a shot and killed him, the death being immediate, and the American went off with the revolver in his hand; José Rosa went forward to the American, making a demonstration against him (amagándole) and putting his hands on him, and when he did put his hands on, the American shot him.
Cross-examined, she says that she was in the kitchen of José Rosa’s house and through a hole in the kitchen, (which is made of yaguas) saw the American speaking to José and the witness went out and saw her son-in-law falling and the American running away, and the witness screamed and the people came running up; the sister of José Rosa and one little girl were further away from the house, and there was another little girl, both children being with their aunt, Plora Rosa, all of whom ran when they heard the shot; José Rosa and the defendant had only a few words and they did not have' a fight (y no hubo lucha entre ellos). José Rosa was pulling up the yucas with his hands, and to work used a hoe which he left near the yautias.
On being questioned by the judge, she said that the kitchen is built up, “or fenced,” with old yaguas, with nothing but a door without shutters, and the witness was there when the defendant spoke to José Rosa, and on hearing the voice of the American went out in the yard; they spoke a few words (dos palabras) which witness did not hear, and when the American spoke José Rosa straightened himself up and the American gave him a slap; then José Rosa put his hands on the American’s waist and the latter shot, José Rosa running off and falling; from the place where Flora and the [333]
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Mr. Justice Wolf
delivered the opinion of the court.
The appeal in this case was taken from a sentence of the Second Section of the District Court of San Juan. The appellant was there charged with voluntary manslaughter, and elected to be tried by the court without a jury. The court found him guilty of the crime charged and sentenced him to five years in the penitentiary at hard labor. The •appellant asks the reversal of the judgment substantially on two grounds. An error of law is alleged to have been committed in excluding from the evidence a certificate from the superintendent of prisons ostensibly to prove the character of the dead man, José Eosa, and his penal antecedents. The objection was made that the evidence was immaterial and the court excluded it on the ground that on the defendant’s own testimony the latter was not acquainted with José Eosa before the altercation, and that although the deceased.might have been a bad man, the defendant could not have known it, and also by reason of the cases of People v. Murray, 10 Cal., 310, and People v. Edwards, 41 Cal., 640.
The bill of exceptions, besides omitting a copy of the offered certificate, fails to show that any foundation was laid [330]*330for the question. The character of the dead man was not in issue. The evidence was offered, as the record shows,, after all the other testimony in the case was given. It was incumbent upon the defendant, in order to introduce evidence-of this nature, to show, or offer to show, that he knew of the bad character of the deceased. No such proof or offer was made, and the action of the court in rejecting the evidence was not error. (Henderson v. State, 12 Tex., 525; Com. v. Straesser, 153 Pa., 452; 26 Atl., 17; Derkes v. State, 11 Ind., 557; 71 Am. Dec., 370; see note to State v. Feeley, 3 L. R. A. [N. S.], 359.)
Much stress is laid on the alleged faulty reasoning of the court in excluding the testimony, inasmuch as although the defendant did not know Rosa, yet he might have known of' the dead man’s turbulent or dangerous character. The words of the court, in Spanish, are as follows: “Niego la admisión de la, prueba que se propone por la defensa, fundándome en-que, según la propia declaración del acusado, no conocía a José‘Rosa antes de ese momento y el que f%iera un hombre:'; malo, no podía saberlo\ para actuar bajo aquella influencia, y en esos casos no es admisible la evidencia,>r etc. We think it is a fair inference, from the use of the words, possibly a little inverted in the record, “el que fuera un hombre malo’f and the state of the testimony, that the court had also in mind the question of Sutton’s knowledge of Rosa’s dangerous character. The nature of the grounds of a ruling may be gathered from all the-circumstances. Be that as it may, the giving of false grounds for rulings of this character is no reason for reversal when it is clear that the evidence was-properly rejected.
The other ground of error alleged is that the court did not give proper consideration to the defendant’s plea of self-defense according to its legal effect. This objection must mean that the conclusion of the court in finding defendant, guilty of voluntary homicide was not warranted by the evi-[331]*331deuce. The material testimony given in this case is as follows:
Flora Bosa, the sister of José Bosa, testified that her brother sent her to gather some beans while he went off to get some yucas, which is a kind of root, and as he was pulling them up the American came up and accosted him and immediately the witness heard a shot and ran toward her brother, who was already dead, and the American went off with the revolver in his hand; that the eldest child of the dead man was there and the witness saw the old man, Bar-tolo, and there was no one else; that her brother fell on his face, said no word, and died on the spot.
On cross-examination the witness said that her brother was pulling yucas with his hands because the soil was sandy and he did not have a knife; that she did not see the American come up, not until he was speaking to her brother, and that they were speaking neither low nor loud; that the witness was half a cuerda (about 100 feet) away; heard the sound of the voices, but not the words; when the witness heard the shot she looked over to where her brother was and saw him.fall, and the American run; that the witness, the daughter of the dead man, and no one else were present.
On being examined by the judge, she said that the plants from which the beans were being taken were very large and did not allow her to see her,brother very well, these plants being between her and the place where her brother was; he was alone in pulling up the yucas; that she . did not take notice of the approach of the American until he was speaking .to her brother, and she continued picking the gandules, and it did not take long before the shot was heard; and right away her brother fell to the ground with his face looking downwards; and the witness came up, and he (meaning the dead man) did not have in his hands or about him anything-but the yucas; that the American referred to is the defendant.
Juana Bivera testified that she is the mother of the wife of José Bosa, in whose house she was aiding her daughter,, [332]*332about to give birth to a child; José Rosa lived on the estate of Mr. Sutton, on a piece of land rented by him and in a house on the. place where all of them lived. On the day of the happening José Rosa was planting some yautias (a kind of root) and afterwards went to pull up some yucas to give breakfast to the family, and defendant came up and stepped forward and slapped José Rosa, who put his arms around his (Sutton’s) waist, and then the American fired a shot and killed him, the death being immediate, and the American went off with the revolver in his hand; José Rosa went forward to the American, making a demonstration against him (amagándole) and putting his hands on him, and when he did put his hands on, the American shot him.
Cross-examined, she says that she was in the kitchen of José Rosa’s house and through a hole in the kitchen, (which is made of yaguas) saw the American speaking to José and the witness went out and saw her son-in-law falling and the American running away, and the witness screamed and the people came running up; the sister of José Rosa and one little girl were further away from the house, and there was another little girl, both children being with their aunt, Plora Rosa, all of whom ran when they heard the shot; José Rosa and the defendant had only a few words and they did not have' a fight (y no hubo lucha entre ellos). José Rosa was pulling up the yucas with his hands, and to work used a hoe which he left near the yautias.
On being questioned by the judge, she said that the kitchen is built up, “or fenced,” with old yaguas, with nothing but a door without shutters, and the witness was there when the defendant spoke to José Rosa, and on hearing the voice of the American went out in the yard; they spoke a few words (dos palabras) which witness did not hear, and when the American spoke José Rosa straightened himself up and the American gave him a slap; then José Rosa put his hands on the American’s waist and the latter shot, José Rosa running off and falling; from the place where Flora and the [333]*333children were picking beans they could not see José Eosa because they were in back (of the bnshes).
Bartolo Arroyo testified that he lives on the same estate, and on March 11, 1908, arrived about 3 o’clock in the afternoon, and that his house is 20 yards away from the house of José Eosa, and when the witness went by, Eosa, with one of his little girls, was pulling up yucas, and the witness after arriving at his house heard José Eosa speaking and put his head out of the window and saw Mr. Sutton arriving and saying something in a low voice to José Eosa, and when the latter met him the American struck José Eosa a blow; the latter stepped back, and the American put his hand in his breast; José sprang forward to catch him and the witness ran over, and on coming up to them the shot was fired and Eosa fell down between two stakes; José was the one who sprang to seize the American; the American went away with the revolver in his hand after the shot.
Examining the revolver showed by the fiscal, says the one the defendant had was like it.
On cross-examination he said that José Eosa was on all-fours grabbing the defendant to prevent him from pulling out the revolver. The American had one hand outside and the other inside his breast, where he had the revolver; the two were on all-fours, and José Eosa with his two hands had the American caught by the arm. José Eosa was pulling up yucas with his hands, but had no weapon, and about bim were no knives nor anything else. Flora Eosa and a little girl were there, and Juana Eivera at the kitchen stove making a broth; this the witness knows, because she screamed.
The witness reproduced Ms statements graphically before the jury, explaining the way in which the. events occurred, taking the accused and grappling with bim in the same manner in which he saw him with José Eosa.
José González testified that he lived, on March 11, 1908, on the same place as José Eosa, which is an estate managed by Mr. Sutton. He was just going around it and saw when [334]*334the American met José Rosa, grabbing each other, José Rosa going toward his home and the other in the opposite direction. While in the struggle the American pulled out his revolver and shot José, who fell dead, the American running away toward his home. The estate is divided by a street, and at the month of same there is a wire, and on the other side there is another. He did not notice whether José had any knife or not.
(Being asked by the attorney, he says that the accused had the revolver inside of the waistband of his pants, and took it out and shot.)
Dr. Manuel Fosas practices his profession at Bayamón, and on the 11th of last March made the autopsy of . José Rosa, who died from the hemorrhage of a bullet wound which passed through his breast and his lungs, whose death must have occurred instantly.
This was all the testimony of the prosecution.
Dr. Manuel Fosas continued, testifying as a witness of the defense, and said that on the day referred to by the fiscal he saw the defendant about 5 o’clock in the afternoon, observing several wounds that he had which were superficial, like scratches, made by an instrument somewhat blunt. Some of the wounds were filled with dirt, and the witness believes that this dirt was caused by falling on the ground after the defendant was wounded or because the weapon with which he' was wounded was full of dirt. In two or three of the wounds the witness observed that there was dirt inside them. They could have been made with a blunt instrument like a dull knife; that the clothes of the defendant were slashed in the same way as the wounds.
At this point the attorney of the defendant offered the clothes as evidence without opposition on the part of the fiscal, and the court admits the evidence.
The witness said that these clothes were the same which the defendant had on on the day of the event, and in the shirt there is a hole as if made by a bullet, and a burn which [335]*335corresponds to the hole. The defendant had five wounds, some on the side and on the thighs and others on the back corresponding to the cuts on the clothes. Being asked by the fiscal he said that such wounds as were on the hack could have been made by barbed-wire fence, but not the wounds on the thighs; that the cuts on the shirt could have been made by the wire fence, and also could have been made in a fight with another person.
On being again asked by the defendant’s attorney, witness said that the wounds in back could have been made by a wire fence or by a blunt knife.
Being asked by the judge, he said that he examined the defendant in town about 5 o ’clock in the afternoon; the finca being about 10 minutes’ walk from there; the wounds were superficial and irregular, were jagged and could have been made with a knife or a weapon not very sharp, which also could cut the clothes, by using force; such wounds could have been made with a knife that was not very sharp, but to cut the cloth of which the clothes were made would need a strong man; that the cut on the right leg of the trousers could be made either by a sharp knife like a machete, espadín (curved form of machete), hoja de sahle (practically the same as espadín), or a table knife, and force would have to be applied from different directions.
D. A. Skinner testifies that he is Assistant Secretary of Porto Rico; that he knew the defendant and had known him since 1901 as a man of good conduct, not having taken part in any fights or quarrels; considers the defendant as a man of good behavior, who devotes himself to his work.
On being asked by the fiscal, he says he met the defendant first in Ponce, and he is'-his friend and considers him a gentleman.
Ezequiel Mongil testified that he is chief' of police at Bayamón; in March last, on the day of the event, the witness was in his office and a negro came in saying that José, the godfather of his son, had been killed; in company with [336]*336the judge he went to the place and found José Rosa on the ground and Mr. Sutton away from him; the latter had already been arrested by the police, who took his revolver. There was quite a big crowd commenting on the event; the witness ordered that the defendant be brought to town and the dead man sent to the cemetery, and when they arrived at the town Dr. Fosas went by the police headquarters; the witness called him and he came in and examined the defendant, for which purpose he made him take off his clothes; the witness saw that the defendant had several scratches.
On being asked by the fiscal, he does not remember how the defendant was dressed, but he was in his working clothes, full of dirt, and his hands dirty.
Oésaro Fernández testified that he knows the defendant and that he knows José Rosa, and saw them on the day of the controversy. The witness was cleaning up his farm, and the defendant passed in back of him and saluted him while he was busy in cleaning up sugar-cane. He heard a disturbance and saw some colored people who were three struggling with the defendant; at first the witness did not know who it was because he was hidden in the middle, and in that moment they pushed him and one of his legs was shown and by the trousers the witness realized that it was the defendant, and he heard a shot and the one who ’had hold of the defendant let him go and took a long stride and fell to the ground and the others ran away; then the defendant also ran, with his shirt torn and hanging down in shreds.
On being asked by the fiscal, he says he was quite distant from the place of the event, and between the witness and that place there were several stocks of sugar-cane ready to be cut for grinding, and over the top of the sugar-canes the witness could observe. The sugar-canes and those who were struggling were on level ground, and there was quite a large number of sugar-canes and they belonged to the witness; he had bought them of -a lady. There were some houses there, and one belonged to José Rosa and another to Bartolo [337]*337Arroyo, the first being a little distance from the group here concerned in the struggle, and the second nearer; José Rosa ivas the one who had the accused grabbed and the rest were grouped together, Bartolo being one. The witness did not know the rest of them, becanse he had only been living There a very short time.
On being asked by the'fiscal, he said that Arroyo was not in the straggle with the defendant, bat they were' together;; that he cat the sngar-canes a month afterwards, and that he-recognized the defendant by his yellow troasers, because a. little while before he had passed beside the witness.
Jesús Pérez Martínez testified that he know$ José Rosa and knows the defendant; that the first had a piece of land and a little hoase on the farm “Quinto,” managed by the defendant. There were crops planted by José Rosa, bat oat-side of the land which he had rented, and that they did not belong to him, which fact the witness knows because he was the collector of the estate. He knew about the event about, half an hour after it occurred; saw the spot where Rosa fell, which was outside of the land which belonged to him; he knows the spot where Rosa was taking oat yucas before the event, which was also outside the place he had rented.
Being asked by the fiscal, he said that Rosa paid his rents punctually, bat does not know to whom, the yucas belonged;: that there were some large bashes of gandules at that place.
José Eraso testified that he was cutting canes on the estate when the event took place, which he did not see, and that Mr. Sutton, under whom the witness worked, sent him for the police at 3- o’clock in the afternoon, saying that he was wounded.
On being asked by the fiscal, he says that the defendant was near his house and he did not notice how he was dressed, because the defendant ordered him to go for the police because he was wounded, and he went and got them.
Being asked by the judge, he said that the police came with the lieutenant.
[338]*338George Sutton testified tliat gjí the day of the event he was going’ around his farm, and on passing near where José Rosa lived saw him working on the ground and saw two more persons talking, of whom he asked “Who is planting?” and one of them answered, “I,” and on being asked his name said, “José Rosa.” He asked him where he lived, and he answered, “I live here,” pointing out a little house which was a few yards away. The witness asked him when he was going to pay the rent of the land he occupied,, and he answered that he did not owe anything; the witness replied that he owed for a cuerda- since August, and he answered that he would not pay a cent. The witness said to him that he Would have to give up planting, and that it was, the first time that he met him, and that he had left various messages at his house; José Rosa said it was a lie, because no messages had been left at the house; the witness then insisted that he left such messages, and that he (Rosa) knew that every-' body who planted would have to, pay for each cuerda; Rosa replied, “Carajo, it is a lie,” and at the same time took a step forward, striking the witness with his hands. The witness defended himself and felt a stroke from a pointed instrument (puntoso) and saw some blood. He continued struggling with Rosa in order to catch his hand, and when he got hold of it someone else caught him from behind and he felt a punch on. the head; the witness put his hand inside of his shirt in order to get his revolver, and the third person caught him around the waist, holding his right arm, whereby he could not pull out his revolver. He continued to hold on to José Rosa, who was giving him knocks, and in this way the four of them continued clinching; the witness felt a cut in his foot, and raising the barrel of his revolver shot it off underneath his shirt, because, as he had already said, his .arm was held by the other man, who is called José Gonzalez, and he fired a shot and immediately all of them let go. José Rosa walked about 15 or 20 feet towards his house and fell on his face. Then the witness ran over to his house, called [339]*339the servant, José Eraso, to go for the police, because he was wounded. When he fired off the revolver he had it on the left side and fired if off in that way, and two people had hold of him, without being able to say if José Rosa had hold of him, too, because the witness was holding on to Rosa; saw in José Rosa’s hands a piece of machete. José Rosa was taller and stronger than the witness; he delivered the revolver to the police; the wounds and scratches which the witness had on his body were caused by José Rosa in the struggle. After the event the witness did not go under any wire fence, and on that account he can assure anyone that the scratches were not made by the wire fence or by any other foreign body, but were caused by Rosa.
Being asked by the fiscal, he said that he came to the road by the place called “Cachete,” which has one side fenced; the witness was inside of the estate and through it came out by a lane to the main road. He did not go under any wire fence; he knows Maria Rodriguez, who lives in Comerio Street near to the place, and at that time she lived inside the “Cachete”.
In response to the questions of the judge, he said that .the fence is of barbed wire and of malla (a plant like pineapple).
This concluded the proof of the defense, and then the fiscal offered evidence in rebuttal, which was admitted.
María Rodriguez testified that on the 11th day of March last she lived at “Cachete,” and that there were several neighbors, among them José Rosa, who lived further out, and on that day she saw the defendant pass by the yard of her house with a revolver in his hands, through the wires, bending down his head; that there are three wires with barbs, and two of them were on the ground and another was up in place; that when the defendant went through a part of his clothes was torn in back, she not noticing whether it was from his back, the piece being left on the fence.
[340]*340On questions propounded by the attorney she said tbat this information was brought to the ears of the fiscal because the detectives asked her if she had seen anything, and she answered that she had seen Mr. Sutton go under the wire fence with a revolver in his hands; that when she was asked b.y the detectives about it Mr. Sutton was not there and she could, not tell the date in which this statement was obtained from her; but the date on which witness saw the defendant pass they say was the 11th of May, and she maintains that on that day, the 11th of May, she saw Mr. Sutton passing through the yard of her house.
In reply to questions from the judge she said that they told her that Mr. Sutton had killed Eosa on the day on which she saw him pass through the wire fence.
As we have seen, this case was tried by the' court without a jury. When the court sits with a jury a review of questions arising during the trial is obtained by means of the preservation of exceptions, either to the admission or exclusion of evidence, or again, to the granting or refusal of instructions. In Suydam v. Williamson, 20 Howard, 433, the Supreme Court says:
‘''When a party is dissatisfied with the decision of his cause in an. inferior court, and intends to seek a revision of the law applied to the case in a superior jurisdiction, he must take care to raise the questions of,law to be revised and put the facts on the record for the information of the appellate tribunal; and if he omits to do so in any of the methods known to the practice of such courts, he must be content to abide-the consequences of his own neglect. Evidence, whether written or oral, and whether given to the court or to the jury, does not become a part of the record unless made so by some regular proceeding at- the time of the trial and before the rendition of the judgment. Whatever the error may be, and in whatever stage of the cause it may have occurred, it must appear in the record, else it cannot be revised in a court of error exercising jurisdiction according to the course of the common law.”
In the course of English law from the clays of Magna. Charta the trier of facts in law, cases, including criminal jmose-[341]*341cutions for felonies, was the jury. In civil cases at law parties had' and have a right to waive a jury trial. In such cases the court is substituted for the jury, and where the finding of the court is general it is invariably held that such finding must be given the same effect as the verdict of a jury. (City of Richmond v. Smith, 15 Wallace, 437; Basset v. United States, 9 Wall., 40; Bond v. Brown, 12 How., 255; Miller v. Life Insurance Co., 12 Wall., 301; Norris v. Jackson, 9 Wall., 127; Simmons v. Saul, 138 U .S., 438; Henderson’s Distilled Spirits, 14 Wall., 53; Appel et al. v. Childress, 116 S. W. [Tex.], 129; Griffle v. McCoy, 8 W. Va., 201, 19 Dec. Dig. Trial, 1334; Century Digest, Appeal and Error, sec. 3351, et seq., and sec. 3987; Dec. Dig., sec. 846, et seq.) In Basset v. United States, supra, the court says:
“When a court sits in place of a jury and finds the facts, this court cannot review that finding. If there is any error in such case, shown by the record, in admitting or rejecting testimony, it can be reviewed here. ‘But when the court, by permission of the parties, takes the place of the jury, its finding of facts is conclusive, precisely as if a jury 'had found them by verdict. ’ ’
and in Griffe v. McCoy, supra, it is laid down (in the syllabus) :
“Where a trial is held to the court, the court occupies the same relation to the facts in the case that a jury would have had if the case had been tried by a jury.”
In felony cases within the United States, by reason of the Constitution of the United States and of the various Statfe constitutions, a defendant may not waive his right of jury trial, but he may in minor offenses. (Schick v. U. S., 195 U. S., 65.) The mode of review, in case of such a submission to a court following the course of the common law as shown in the Schick case, is necessarily the same as it would be in a civil case where a party had the right of a jury trial. In Porto Eico a defendant, by section 178 of the Code of Criminal Procedure, may elect in a noncapital case to be tried by [342]*342a jury, and if lie doesn’t so elect the right of jury trial is deemed to have been waived. That such waiver is no violation of the Constitution of the United States is a matter not open to question in this court. (Ex parte Acevedo, decision of June 2, 1902, 1 Castro, 275; Trono v. U. S., 199 U. S., 533; Dorr v. U. S., 195 U. S., 148.) It is evident from an examintion of the authorities that when a case triable by a jury is submitted to a judge he is always substituted for such jury, and a review of a general finding made by him is governed by the same principles as in cases where there is a verdict. This becomes more evident by reason and authority in the consideration of the particular question sought to be reviewed here.
Numerous authorities cán be found to the effect that the supreme court of a State will not review the facts to resolve a conflict in the evidence in the absence of partiality, passion, or prejudice or some like element. This rule has been followed by the Supreme Court of the United States.
In People v. Vance, 21 Cal., 404, the court, through Mr. Justice Field, says:
“The last objection of the appellant, that the verdict is against the weight of the evidence, is without force. There was evidence both for and against the defendant, and in such cases we do not interfere with the province of the jury. There must be such overwhelming evidence against the verdict as to justify the inference that it was rendered under the influence of passion, or prejudice, or bias of some bind, to justify any interference on our part with the action of the jury.”
In People v. Durrant, 116 Cal., 200, the court cites a multitude of cases to the same effect, and says :
“If a witness should absolutely discredit his own testimony by swearing to opposite statements so that one or the other must be false, under our laws his testimony is not of necessity to be rejected. It is .still evidence in the case. Under such circumstances the jury must receive and weigh it. They are bound to look upon it with suspicion and distrust, and may reject it. But, upon the other hand, they may as they determine accept as true one or the other of the contradictory [343]*343asseverations. Thus, upon a review of tbe evidence by this'tribunal, we may not examine with minuteness claims that witnesses are discredited, or that their testimony is unworthy of belief, or look to see whether some other' conclusion might not have been warranted by the evidence. (Blyth v. Ayers, 102 Cal., 254.) Ad questionem juris respondeant juclioes, ad questionem facii respondeant juratores; and than this no maxim of the old law has been more carefully preserved in its integrity under our system. "Where it is not clear that the verdict must have been rendered under the influence of passion or' prejudice, our examination of the record is only to determine whether legal evidence has been offered sufficient to warrant a conviction, for the verdict of the jury is their declaration that it is this evidence which has been by them accepted.”
In People v. Brittan, 118 Cal., 411, we find this statement:
“Nor was there, as claimed, any such disparity in the statements of the witnesses of the prosecution as to render their evidence inherently improbable or necessarily unworthy of belief. It Avas no greater, ■in fact, than is usually to be found in the statements of different eyeAvitnesses to an affair of the kind.”
In Johnson v. United States, 157 U. S., 326, the court says:
“The impression has been made upon us, by our examination of the evidence, that there Avas room for a reasonable doubt of the defendant’s guilt: But the jury that found him guilty saw and heard the AAÜtnesses, and Ave must infer from the conduct of the court in overruling the motion for a new trial that it was satisfied Avith the verdict,- and as we have found no error in the rulings of the court, the judgment in the case is affirmed.”
The Supreme Court of the United States consistently adheres to the principle. (Crumpton v. U. S., 138 U. S., 361; Moore v. U. S., 150 U. S., 61.) From a mass of jurisprudence on the subject we have selected the foregoing cases from California and the United Statés Supreme Court because they were all murder or homicide cases. The reports abound in other cases to the same effect.
The Supreme Court of New York in capital cases appar-[344]*344entiy has wider powers than our own court. In People v. Kerrigan, 147 N. Y., at page 214, the court says:
“While this c.ourt has the power in a capital case to review the facts and to grant a new trial when satisfied that the accused has not had a fair trial, or when injustice has been done, it must observe the rules and principles which apply to all tribunals exercising appellate jurisdiction. It is the province of the jury to determine questions of .fact, depending upon evidence in any degree conflicting, and to declare by their verdict what the truth is, and when once determined, upon evidence which is sufficient, even though capable of diverse or ■opposing inferences, this court has no more fight than the trial court ■to substitute its own judgment in the place of that of the jury, or to usurp its legitimate functions.”
Our own powers are governed by the laws of 1903 and 1904:
“Section 1. — That the Supreme Court of Porto Rico shall hereafter be a court of appeals and not a court of cassation. In its deliberations and decisions, in all cases, civil or criminal, said court shall not be confined to the errors in proceeding (procedure) or of law only, .as they are pointed out, alleged or saved by the respective parties to the suit, or as set forth in their briefs and exceptions, but in furtherance of justice the court may also take cognizance of all the facts .and proceedings in the case as they appear in the record, and likewise ■consider the merits thereof, so as to promote justice and right and to prevent injustice and delay.” (Laws of 1903, page 59.)
‘1 Section 1. — Whenever it appears from the record in any criminal •case upon appeal in the Supreme Court that any requirement of the law has been disregarded by the trial court, the judgment shall not be reversed unless the error appearing from the record was calculated "to injure the rights of either of the parties, and was 'duly excepted "to in the trial court: Provided, however, That the appellate court may take cognizance of fundamental errors appearing in the record, •although not excepted to, and render such judgment thereon as the facts and the law may require.” (Laws of 1905, special session 1904, page 10.)
In a long line of decisions this court lias uniformly followed tile rule laid down by the Supreme -Court of the United States and the Supreme Court of California. The question [345]*345■was fairly presented to ns in tlie case of Leña Verde v. People of Porto Rico, decision of March 6, 1907, where the conrt said as follows:
“It is a question which has been the subject of considerable discussion as to how far an appellate court will go in reversing a judgment on the ground that the verdict of the jury is not supported by the evidence. A great majority of the cases to be found in the books hold that the decision of a jury on the facts should not be disturbed on appeal. A minority of the cases have held, quite as consistently, that if the evidence is insufficient to sustain a verdict that it should be set aside on' appeal. But the opinions in the cases very often fail to state how far an appellate court can proceed in considering the weight of the evidence in criminal cases on which the verdict of the jury is based. It would perhaps be very difficult, if not impossible, to deduce from the reported 'cases a rule on this subject which, can be considered as having been adopted by all the courts. In Florida, Texas, and Illinois the courts have held that a reasonable doubt as to the guilt of the accused in the minds of the appellate court is a sufficient reason for the reversal of a judgment of conviction. In many other States, among them Idaho, Indiana, Iowa, Kentucky, Louisiana, Missouri, New York, and Virginia, it may be said to be the rule established by the decisions that a judgment in a criminal case will not be disturbed on the ground that the verdict is not supported by the evidence, except in cases where there is a total failure of evidence, or it is so weak and unsatisfactory that the necessary inference to be drawn therefrom is -that the verdict is the result of partiality, passion, or prejudice. The latter rule has been upheld by the Supreme Court of the United States in the case of Crumpton v. United States, 138 U. S., 36. And in California it is announced as the decision of its court of last resort that only questions of law - can be considered on appeal, and if there is 'any evidence to justify the verdict of the .jury.it cannot be disturbed. . (People v. Williams, 59 Cal., 674; People v. Smallman, 55 Cal., 185.)
“This matter is discussed, though briefly, in a note to the case of Armstrong v. The State of Florida, to be found reported in 17 Lawyers’ Reports Annotated, on page. 484. We concur in the rule laid down by the Supreme Court of the United States in the case referred to above, that the weight of the evidence introduced by the State, to the extent to which it was contradicted or explained away by the witnesses on behalf of the defendant, are questions exclusively for the jury and [346]*346not reviewable upon error in the appellate court. If the verdict was manifestly against the weight of evidence, defendant should have-moved for a new trial on that ground in the court below, but the granting or refusing of such a motion is a matter of discretion in the trial court. It may be said generally that this court will not review the decision of the jury upon a question of fact, unless it is- clearly erroneous or the result of partiality, passion, or prejudice. ’ ’
We have decided, the same in many other cases,, of which the following may be cited: People v. Otero, 4 P. R., 107; People v. Villegas et al., 6 P. R., 460; People v. Goitia, 5 P. R., 252; People v. Sinigaglia, opinion of June 27, 1907; People v. Díaz, opinion of February 1, 1910.
People v. Sinigaglia was a case tried by the judge below and, quoting California decisions, is also authority to the effect that it makes no difference whether a review of the evidence is sought by appeal from the judgment or from the order denying a new trial.
In the Durrant case, supra, and Moore v. U. S., supra, the-court supports its application of the principles by citations alike from civil and criminal cases, and in Shorter v. People, 51 Am. Dec., 293, the court says:
“As this is a criminal and a capital case, I cannot but feel a strong-disposition to give the prisoner a new trial. But the law concerning-bills of exceptions is the same in criminal as it is in civil cases (The People v. Wiley, 3 Hill [N. Y.], 194, 214,), and we must not allow our feelings to draw us into the making of a bad precedent.”
This court in a .recent case again reviewed the authorities and citing civil and criminal cases said:
“It is .claimed by the appellant that the verdict of the jury is-contrary to the evidence, and a great effort has been made to show this by comparing the testimony of the several different witnesses, one with another, and pointing out alleged contradictions in the various-parts of the testimony of particular witnesses, and especially in that of the prosecutrix and her brother. There is, no doubt, considerable conflict in the testimony of the different witnesses as compared with each other, and some inconsistencies in the several statements made by some of the witnesses for the prosecution. This occurs in nearly all [347]*347closely contested criminal trials. But it is tbe province and tbe duty of tbe jury, under proper instructions from tbe court, to weigh tbe evidence and reconcile, so far as possible, tbe inconsistencies or tbe contradictions in tbe testimony, and to sift the grain of truth from the mass of chaff which may be found therein, and thus arrive at a just verdict founded on the facts proven. So far as we can see from a careful perusal of the record and the briefs, this duty has been fairly performed by the jury; and we do not feel justified in saying that any error' has been committed in this particular. Another jury on tbe same facts, under proper instructions, might arrive at an entirety different verdict, which we might feel the same hesitation to disturb.” (People v. Español, March 30, 1910.).
The same test is generally applied where the court below had the witnesses before it. The rule is not based on arbitrary tradition, but on principles of common sense and common justice. In Quevedo v. Succession of Pino, opinion of November 16, 1909, this court said:
“We have often held that the trial court possesses facilities for weighing the evidence and determining the credibility of witnesses which neither this nor any other appellate court, in the nature of judicial proceedings, can command; and that in cases of conflicting testimony we will be very reluctant to disregard the findings of the trial court on such questions.”
This court in that case had previously made an extensive citation from the Supreme Court of Mississippi wherein the latter court set out all the human manifestations that the court below might see or hear and which necessarily could not be reproduced in a dry record, any one of which might determine the weight of a bit of testimony or the credibility of a witness.
Before examining the facts in the case it will be well to. set forth the law with respect to the right of self-defense in homicide cases. Our own laws provide:
“Sec. 209. — Homicide is also justifiable when committed by any person in any of the following cases:
“1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or,
[348]*348“2; When committed in defense of habitation, property, or person against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or,
“3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony, or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mortal combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or,
“4. When necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.
“Sec. 210. — A bare fear of the .commission of any of the offenses mentioned in subdivisions 2 and 3 of the preeeeding section, to prevent which homicide may be lawfully committed, is not sufficient to-justify it. But the circumstances must be sufficient to excite the fears of a' reasonable person, and the party killing must have acted under the influence of such fears alone.
“Sec. 211 — The homicide appearing to be justifiable or excusable, the person charged must, upon his trial, be fully acquitted and discharged.” (Penal Code of P. R., pp. 521-522.)
Operating under- substantially the same provisions the Supreme Court of California has sustained the foil owing instructions:
“A person may repel force by force in the defense of person, property, or life, against one who manifestly intends or endeavors, by violence or surprise to commit a known, misdemeanor or felony, or either, or to do great bodily injury to his person, and the danger which would .justify the defendant in the act charged against him may be either real or apparent, and the jury are not to consider whether the defendant was in actual peril of his life or property, but only whether the indications were such as to induce a reasonable man to believe that he was in such peril of person or property. And if he so believed reason[349]*349ably, and had sufficient cause so to believe, and committed the' act complained of under such belief, even though it should appear that the deceased was not armed, you should acquit the defendant.” (People v. Glover, 141 Cal., 233.)
Other judicial pronouncements under similar provisions of law are as follows:
“It was correctly said by Ruffin, C. J., in State v. Scott, 4 Ired. L., 409 (42 Am Dec. 148), that 'the belief that a person designs to kill me will not prevent my killing him from being murder, unless he is making some attempt to execute his design, or at least is in an apparent situation to do so, and thereby induces me reasonably to think that he intends to do it immediately. ’ The ‘situation’ spoken of is not that he has the means at hand for effecting a deadly purpose, but that, by some act or demonstration, he indicates at the time of the killing a present intention to carry out such purpose, thereby inducing a reasonable belief, on the part of the slayer, that it is necessary to deprive him of life to save his own. Pritchett v. State, 22 Ala., 39 [58 Am. Dec., 250]; Whart. Crim. L., 260.” (Harrison v. State, 60 Am. Dec., 452.)
“It is clear that to establish a case of justifiable homicide it must appear that something more than an ordinary assault was made upon the prisoner; it must also appear that the assault was such as would lead a reasonable person to believe that his life was in peril. Wallace v. U. S., 162 U. S., 466.” (Allen v. U. S., 164 U. S., 498.)
“Neither, fourthly, do we find anything to condemn in the instructions in reference to self-defense based on an apparent danger. Several approved authorities are quoted from in which it is not sufficient that the defendant claims that he believed he was in danger, but that it is essential that,there were reasonable grounds for such belief, and then the rule was summed up in this way:
“ ‘Now, these eases are along the same line, and they are without limit, going to show that, as far as this proposition of apparent danger is concerned, to rest upon a foundation upon which a conclusion that is reasonable can be erected there must be some overt act being done by the party which, from its character, from its nature, -would give a reasonable man, situated as was the defendant, the ground to believe — that there was danger to his life or of deadly violence to his person, and unless that condition existed then there is no ground upon which this proposition can stand; there is nothing' to which [350]*350the doctrine of apparent danger could apply.’ ” (Acers v. U. S., 164 U. S., 392.)
“One may defend himself and his family with deadly weapons from a felonious assault, if necessary to protect the same therewith from such assault, and may also defend his habitation from such character of assault by the use of like weapons if necessary to preserve the same from destruction or serious injury; but a nonfelonious assault upon one’s person, family,, or habitation — that is, an assault not made under such circumstances, and with such means, and under such appearances, as to justify a belief in imminent danger of great bodily harm to person, or destruction or serious injury to habitation — may not be resisted with deadly weapons.” (State v. Countryman, 48 Pac., 138.)
“When a man is struck with the naked hand, and has no reason to apprehend a design to do him any great bodily harm, he must not return the blow with a dangerous weapon.” (Shorter v. People, 51 Am. Dec., 292.)
“If deceased intended to take the life of defendant, or to do him some enormous bodily harm, it would be lawful for him to kill his assailant if he could by no other means prevent the assault. But if the deceased intended only a simple nonfelonious assault, such as chastising or whipping the defendant, and defendant killed him to prevent such assault, it would be at least manslaughter.” (State v. Benham, 92 Am. Dec., 417.)
“The court further charged the jury that ‘disparity of physical power and strength between men will not justify the weaker party in suddenly, and without any warning, resorting to a deadly weapon and using it in a deadly manner when menaced and threatened with an assault by or with fists alone; and unless the situation and condition of the parties, and the circumstances under which they are placed, are sufficient to induce a man of reasonable and ordinary prudence and judgment to believe great bodily harm or injury might reasonably be expected to follow if the menaces and threats be carried out, in which case the prisoner had a right'to use such deadly weapon.’ ” (State v. Thompson, 74 Am. Dec., 344.)
From the evidence transmitted to us in the record tiie trial court had a right to believe that Sutton began the conflict by slapping Rosa; that the dead man, Rosa, had no weapon; that Rosa was merely trying to prevent Sutton from using his revolver. The court had a right to believe from the evidence [351]*351that the cuts on Sutton’s body were produced by the barbed-wire fence; that the same cuts were produced in some other way than in the conflict, as, beyond the statement of Sutton (which is negatived by the government’s witnesses) there was no evidence that Rosa had the means in his hands or in his possession of inflicting the wounds which the defendant and Dr. Fosas, described; indeed, a judge or a jury, where no antecedent event is described to cause a particular injury; would have a right, where the injured person is not examined immediately after the affray, to believe that the result described, like the cuts, in this case, was produced in a number of ways, and might even be self-inflicted. Even if the cuts were caused by Rosa in the conflict, the court had a right to infer that Rosa used his weapon, if any he had, to prevent Sutton from using his pistol. The court had the right to believe, even if Rosa was the aggressor, as Sutton maintains, that the latter unduly resented the blow and took advantage of his assailant. These are some of the many theories suggested by the evidence, and the court, following the authorities, had ample justification for its finding if it believed that Sutton had no reasonable ground to fear for his life or great bodily harm. This it might readily do, if it believed the witnesses of the Government, and especially the witness Bartolo. If this court, were in any doubt as to the sufficiency of the evidence it still could not reverse this case because means of proof which were submitted to the court below have not been brought before us, namely, the clothes which Sutton wore and which the doctor described as having cuts which followed the same general lines as the scratches themselves. The clothes were not brought up as an exhibit, nor was there any attempt made to give a sketch of them other than in the testimony of Dr. Fosas.
The court also had a right to discredit the testimony of any witness from his manner of testifying, and the judge had the right to use liis eyes and observe the character of the cuts [352]*352on the clothes submitted to it. The court was not bound to follow some of the indications of the expert that the wounds were produced in some other way than by the barbed-wire fence. A barbed-wire fence is quite capable of producing severe wounds if one goes under it hastily and forcibly, a fact well known to people who have to handle cattle.
It is suggested by counsel that the statements of some of the witnesses for the government are contradictory and at variance with some of the admitted facts, but it is a familiar experience in homicide and accident cases that the most honest. witnesses will be mistaken about a part, or even a great part, of their testimony. It is the province of the trier to sift the truth. The testimony, for example, of the mother-in-law of Rosa is vague in parts and in contradiction to that of some of the other witnesses. This state of her testimony might be due to her age or excitement, but the court had a right to give credence to that part of her testimony tending to show that Rosa was unarmed. The testimony of Bartolo Arroyo, on the other hand, has no apparent inconsistency, and is only attacked in the brief of the appellant to state something that does not appear -anywhere in the record. It is suggested, moreover, that Sutton was attacked by three men, but even if the court believed that there was a struggle of three against one there was nevertheless evidence tending to show that 'the struggle of the four people arose after an act of aggression on Sutton’s part. The court would also have had a right to believe that the struggle arose after Sutton attempted to draw his pistol.
We have examined the evidence with great care, and not only do we not find such a preponderance of the evidence in favor of the appellant as would justify us in holding that the court was actuated by passion, prejudice, partiality, or even by an erroneous conception of the significance of the evidence, but we do not see, from the record, how the court could have arrived at any other conclusion.
The real reason for this decision is that this court has no [353]*353right to reverse in cases of conflict in the testimony where there is evidence tending to prove the information and no prejudice or similar element is shown. Bnt it is suggested that, in the opinion of the court, it is shown that the judge did not give due consideration to the defendant’s plea of self-defense. No such conclusion can properly be drawn from the opinion, but in any event the opinion forms no proper part of the record. (Saltonstall v. Birtwell, 150 U. S., 419; Insurance Co. v. Tweed, 7 Wall, 51; Rector v. Ashley, 6 Wall, 148; Gibson v. Chouteau, 8 Wall, 317; Medberry et al. v. State of Ohio, 24 How., 414; Dickinson v. Planters’ Bank, 16 Wall., 250; Insurance v. Boon, 95 U. S., 140, citing other cases: British Queen Mining Co. v. Baker Silver Mining Co., 139 U. S., 222; Lehnen v. Dickson, 148 U. S., 74; Phenix Ins. Co. v. Fuller, 40 L. R. A., 409; Pennsylvania Co. v. Veisten, 15 L. R. A., 798; Hernández v. García, 3 Castro, 181.)
In Rector v. Ashley, supra, the court said:
“We lxave of late been frequently urged, in this class of cases, to look into the opinions delivered in the State courts to ascertain on wliat grounds their judgments were based, and the point has been one of some controversy. It is not, however, an open question. More than 40 years ago the same question arose in the case of Williams v. Norris, reported in 12 Wheaton. The proposition was pressed upon the court for the same reason that it is in this ease, namely, that by the statute of the State the opinions of the court are required to be filed in writing among the papers of the case. Marshall, C. J., speaking for the court, held that, notwithstanding this act, the opinion of the State court constituted no part of the record, and could not be looked to as the foundation on which this court would take or refuse jurisdiction. ’ ’
In Dickinson v. The Planters’ Bank, supra, the court said:
“Some facts, indeed, are stated in the opinion of the court that seem to have accompanied the judgment, but they are not stated as a special finding. They are rather advanced as reasons why the judge came to the conclusion that the alleged promise of the defendants had not been proved. It is impossible to regard anything that appears in this ease as equivalent to a special verdict.”
[354]*354In Insurance Co. v. Boon, supra, the court said:
' ‘ Nor will the fact that the court below stated some of the facts is) an opinion accompanying -the judgment alter things in the least, it-appearing that the facts exhibited in the opinion were stated, not as a special finding, but rather as a ground to show why the judge came to the conclusion set forth in the record.”
In a note in 15 L. R. A., 798, the reporter points' out that .the Supreme Court of the United States has not always been (consistent. That court liassometimes, it is true, looked at the 'opinion of the court below to see whether a federal question was raised, but not to decide the merits of an issue raised by '.the pleadings and on which the judgment was founded. In the very recent case of The City of Memphis et al. v. The Cumberland Telephone and Telegraph Co., opinion of December 12, 1910, the court was divided as to whether the opinion of the court could be looked at to determine whether a federal question was involved, the- majority holding in the negative. The case of Loeb v. Columbia Township Trustees, 179 U. S., 472, was relied upon by all the justices. In that case the court makes it clear that the opinion of the court below will not be referred to for the purpose “of ascertaining the evidence or the facts found below upon which the judgment was based. ’ ’ The same result flows from a consideration of our own statute. Section 356, Code Criminal Procedure, as, amended, Session Laws 1908, page 90, reads as follows:
“Upon the appeal being taken, the secretary of the court with whom the notice of appeal is filed must, within 20 days thereafter, in case the bill of exceptions has been signed, by the judge before the .giving of such notice, but if not, within 20 days from the signing of the bill of exceptions, transmit to the secretary of the Supreme Court six typewritten copies (one of which shall be certified to as the original) of the notice of appeal and of the record of the case which ■shall consist of: First, the information; second, defendant's pleading; third, the court’s instructions to the jury, should trial be a jury trial; fourth, instructions refused, if any; fifth, the verdict; sixth, motion for a new trial, if'any, and the court’s decision; seventh, judgment and sentence; eighth, bill of exceptions, if any; ninth, state[355]*355ment of facts, if any; tenth, notice of appeal; eleventh, clerk’s certificate stating that the copy is a true one of the originals existing in the archives of the court. Upon receipt of such record it shall be the duty of the secretary of the Supreme Court to enter the case upon the docket of his court.”
There is no requirement for an opinion or findings of faet, because, of course, a verdict or a general finding is presupposed. Here there was a general finding by the judge, and his opinion was filed to support his conclusion. It does not purport to be a finding of facts; there ,is a duly certified statement of the case, and, under the authorities heretofore cited, the proper way to review the facts is the one authorized by law, namely, a bill of exceptions or statement of the. case. We are limited by the law of our jurisdiction to the “record.” (Laws of 1903 and 1904, supra.) In this regard the Supreme Court of the United States held;
“’While it is not necessary, we deem it well to say that in reviewing the action of the court below we are, of course, confined to the record and the case therein made, and may not, as the result of mistaken suggestions as to the issues and proof disregard our duty by deciding, not the case as made, but an imaginary one, wherein issues not made and not presented below would have to be supplied, and whereby conjecture and surmise must be indulged to replace the total absence of all proof on a particular subject.” (Roura v. Government of Philippine Islands, 218 U. S., 400.)
Examining the opinion, nevertheless, we see that the' court was directly considering the question of self-defense. The opinion is as follows:
‘ ‘ Before rendering my verdict in this case’ I want to state several facts, and especially one among them, to whose statement I am led not only by the oral testimony but also and chiefly, by ocular inspection.
“Prom all the evidence introduced in this case I arrive at the firm conclusion, and without any reasonable doubt whatever, that on the 11th of March of this year and in the neighborhood of the town of Bayamón, of this judicial district, George Sutton, who was in charge of a farm, a portion of which was leased to José Rosa, met the latter at a moment when he was digging out some yuca roots, in [356]*356which task he was using no sharp tool, had not it on him, nor had he any near him. That in such circumstances and on account of the rental a quarrel arose between George Sutton and José Rosa, in which the former attacked the latter and a hand-to-hand fight ensued. And during said fight the accused, George Sutton, using a revolver which he had under his shirt, and without taking it out, but raising the barrel a little, fired a shot which, wounding José Rosa.through the heart, caused his death almost instantaneously; after which the accused fled, having to cross, as he did cross, on his way, through a barbed-wire fence, the barbs of which caused some scratches on his body and tore his garments accordingly.
“And on this point what we wish to state emphatically is that the impression left on us by the examination of the tearing of those garments, which have been introduced as evidence by the accused, is that said tearing was caused by the barbs of the wire and by nothing else.
“The doctor who examined Sutton a few hours after the event which took place between Sutton and Rosa admits that the scratches or wounds with dirty edges made on the back, shoulders, and legs of the accused, could have been caused by barbs of barbed wire or by an instrument with a blunt edge.
“Between such conjectures the court decidedly is of the opinion that the tearing of the garments, corresponding to the wounds or scratches found on the accused, were not caused by a knife or similar weapon, blunt or not very sharp, but by barbs of barbed wire.
“We have very carefully examined the tearing of these garments, and by the shape of the several pieces torn off. we are of the opinion, and firmly believe, that they were not produced in any other way than that already stated, 'because otherwise those cuts would not have had the irregularities shown, but would have presented a line more or less regular in its edges, according to the weapon with which they were inflicted.
“And besides, the accused, who is the'only one to make mention of a weapon in the hands of the deceased, does neither state positively that fact, nor has he been able to give an idea of the kind of weapon that the latter had.
“And this conviction existed in my mind previous to the testimony of the witness, María Rodriguez, corroborating said interpretation, when she asserts that she saw the accused while he was passing through the barbed-wire fence and had his garments torn to such an extent that some pieces torn off from his shirt remained on the barbs of the wire.
[357]*357“From the foregoing we are of the opinion that the accused is guilty of the crime of voluntary manslaughter with which he has been charged, and that when he committed the deed imputed to him he did not do it in self-defense.”
It becomes evident that the court did not believe tbe evidence of tbe defense, but examined tbe clothes and became convinced that tbe scratches were produced by tbe barbed-wire fence and in no other way, and that Eosa bad no weapon. The judge considered that Sutton did not fire in self-defense.
There is nothing in the record or the opinion which indicates that the court did not give due consideration to every legal question involved, and nothing before us to suggest passion, partiality, prejudice, or other error. The judgment must be affirmed.
A motion for a new trial was made in the court below and overruled, and an appeal also taken from this order. As the sole ground of the motion was that the decision (declara-toria) was contrary to the evidence, the order must be affirmed on the same grounds as the judgment.
Affirmed.
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