Pérez Nieves v. Superior Court of Puerto Rico

81 P.R. 805

• Court: Supreme Court of Puerto Rico
• Decided: June 8, 1960
• Docket: No. 2253
• Status: Published

Opinions

Mr. Justice Santana Becerra

delivered the opinion of the Court.

Petitioner Prudencio Pérez Nieves was convicted in the District Court, Caguas Part, of a violation of § 263 of the Penal Code (1937 ed.) for failure to provide support without just cause to a child four months old named Rosario Diaz. Under the provisions of Act No. 108 of April 30, 1940, Hipó-lita Díaz went to said court and stated under oath that she had had marital relations with Pérez Nieves, from which a girl was born and that Pérez Nieves had failed to furnish support. Pursuant to Act No. 108 petitioner was summoned to appear before the district judge, where he denied being the father of the child. The judge then ordered that the ordinary proceedings for abandonment and neglect of minors be followed. The complaint was filed on June 14, 1955.

The statement of the case submitted by the district judge contains the following summary of the evidence: The complainant testified that she has had relations since 1954 with the defendant Prudencio Pérez Nieves, and in the month of May of that year she became pregnant and was delivered of child on January 26, 1955; that the defendant sent her five dollars for the midwife and gave her two dollars weekly for fko milk nf the child and at other times sent it from his gr^ eery; that the child became ill and the defendant gave her three dollars to take her to the doctor and also bought some medicines for her. He had helped her until August

* 11, 1955, but thereafter did not provide any more support. She testified that she had married Miguel Angel Rivera on November 9, 1953, but had not lived with her husband and that she had lived with the defendant since January 1954. María .Luisa Dones testified that she was the foster mother of the complainant; that the child was born at her house and the defendant gave her five dollars for the midwife. Later he sent milk weekly. That she had asked him to register the child but he had refused, and that her daughter had told her that the child was his. The midwife testified that she attended Hipólita Díaz at childbirth, receiving five dollars for her services and that she was not interested in learning who the father was. A witness for the defense stated that the complainant was married to Miguel Angel Rivera and that he saw her with her husband at a bar, and that the witness believed, without being sure, that she was pregnant. Another witness who knew Hipólita Díaz at defendant’s bar, saw her there with her husband Miguel Angel Rivera and saw them together again at Puerto Nuevo in July and August 1954. A third witness testified in like terms. The defendant stated that he had met the complainant five years ago, that he knew she was married to Miguel Angel Rivera and saw her with her husband at his business place; that he had had intimate relations with her once or twice and that she informed him that she was pregnant. He did not learn until three months later that she had given birth to a child. The marriage certificate of the complainant and Miguel Angel Rivera was introduced in evidence showing that they contracted marriage on November 7, 1953.

The defense raised the question of law that since the complainant was married the presumption of law was that her child was reputed to be from her marriage, and that the district court had no jurisdiction because the question involved in this case was the challenge of paternity. The district court rendered judgment of conviction and based its reasonings on Act No. 229 of 1942 and on the ruling laid down by this Court in Agosto v. Javierre, 77 P.R.R. 444. Feeling aggrieved by this judgment of conviction the petitioner appealed to the Caguas Superior Court and assigned as error lack of jurisdiction as well as that the judgment was contrary to the evidence and did not conform to the applicable law. He based the second error on the fact that nonaccess of the husband during the first 120 days of the 300 days that preceded the birth of the child had not been established as required by § 113 of the Civil Code. The Superior Court affirmed the judgment on the ground that the appeal was entirely frivolous.

We issued the certiorari to review this judgment. Because of the peculiar circumstances under which the decision in Agosto v. Javierre ¹ was rendered, and considering also that the birth in this case took place subsequent to the constitutional declaration prohibiting discrimination by'reason of birth — for the juridical effect, if any, of said prohibition on §113 of the Civil Code (1930 ed.) — it is of strict necessity, to a certain extent, to review the jurisprudential antecedents of the question now before us in order to clearly establish the applicable doctrine in situations such as the present case.

In People v. Ferrán, 26 P.R.R. 230 (1918), we were confronted for the first time with the question of children begotten out of wedlock, for the purposes of § 263 of the Penal Code. This section provided at that time that every father or mother of a child who voluntarily and without legal excuse Jailed to comply with any of the obligations imposed upon them by law, of furnishing the indispensable food, clothing, •or medical assistance, would be guilty of a misdemeanor. Construing this section in the sense that it only embraced the parents of legitimate children, and in that case they were •extramarital children, we reversed the judgment that convicted the father for abandonment. That was the situation until 1931, when § 263 was amended by Act No. 35 of April .24 of that year, as it stands today, making the father or mother of a legitimate, legitimized, acknowledged natural or illegitimate and adopted child criminally responsible for .abandonment.²

The first case that was decided after the amendment and which involved an illegitimate child was People v. Rohena, 52 P.R.R. 301 (1957). The defendant denied at the trial that he was the minor’s father and, upon being convicted, .alleged as error that the court had declared him the natural iather without it having been established by judgment of filiation prior to the prosecution under § 263 that there existed the parent-child relationship and without the filiation having been acknowledged by indubitable document. Rejecting this argument we said that the fact of paternity, that is, the parent-child relationship between the defendant and the minor, could be properly established within that criminal prosecution.

In People v. López, 54 P.R.R. 279 (1939), we treated the .1931 amendment to § 263 with a more cautious step in the light of the problem of illegitimate filiation, which case involved adulterine children in the concept that said children Rad in the legislation prior to Act No. 229 of May 12, 1942. 31 L.P.R.A. § 501. We did not accept defendant’s contention to the effect that he could not be convicted of abandonment, in the case of adulterine children, in the absence of a final judgment rendered in a civil or criminal action, from which his paternity could be inferred, or in the absence of an indubitable document where filiation was expressly acknowledged, as' provided by §⅞ 128 and 129 of the Civil Code ;³ nor did we accept the contention that the proof of paternity should be a fact prior and pre-existing to the claim for support. Construing this amendment, Mr. Chief Justice Del Toro said:

“Illegitimate children are divided into two classes, to wit: children born out of wedlock, from parents who, at the moment, when such children were conceived, could have intermarried, and. children born out of wedlock, from parents who, at the time they were conceived, could not have intermarried. The former are-called natural children and it is in their behalf that the law created an action for their acknowledgment. Sections 125, 126- and 127 of the Civil Code, 1930 ed. In behalf of the latter no such action exists. The civil law only acknowledges them the' right — section 128 of the Code — to such support from the parents as is prescribed in section 143.

“There is no doubt that the word acknowledged as used by the legislator in regard to illegitimate children in criminal law— section 263 of the Penal Code, 1937 ed. — did so unwittingly. But starting from the basis that they do exist, we believe that it means that the crime is only committed where a father, who is in a position to do so, fails to support his illegitimate issue whom he has held as such children publicly or privately, or because' being his issue, he would have been bound to acknowledge them should they have been natural children. Thus, reasonably construing the provisions of the Civil Code — section 129 — in harmony with the amendment introduced by the Legislative Assembly to the penal law in 1931 (Act No. 35* of 1931, page 352), we are of the opinion that the criminal proceeding therein referred to can be the one rendered within the criminal action prosecuted for abandonment of minors as in the instant case.

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“Within our present state of the law, the judgment rendered in a criminal prosecution of which said section speaks, can be no other than the one rendered in the criminal action for abandonment of minors where all the essential facts can be duly-established. The duty of the father arises from the material Tact that he is the father. Once it has been duly proved that he is the father, and that so being he failed to discharge his duties in the manner established by the criminal law, the crime .should be understood to have been committed.”

The legal responsibility of the father under § 263 to support the illegitimate child, whether or not the latter could demand his acknowledgment under the existing law at that time, was based only on the natural filiation, on the fact of being his •child, the relation itself between generator and generated, without taking into account those other rules of family law which led to the juridical filiation based on acts of acknowledgment or on the conduct and behavior of the parents. As a logic sequel it was firmly established that that natural relation between procreators and procreated — the paternity — was ■open to judicial investigation, and that it could be determined in the same proceeding under ⅞ 26B.⁴

The López case had a more ample significance since its doctrine was enhanced in Rivera v. Cardona, 56 P.R.R. 786 (1940), to embrace a civil action for support filed for the first time — it could be logically assumed that it was inspired in that decision and in the Rohena case — by an illegitimate child: who at that time did not have the status of natural child, and who had been unable to file an action of filiation. The problem that now arose, which was novel in our jurisdiction, was whether an illegitimate child could file a civil action for support against his presumptive father without the paternity having been previously established by final judgment in a civil or criminal suit or by indubitable documents where filiation was expressly acknowledged, as required by §⅞ 128 and 129' of the Civil Code. Following the reasoning of the López case,, this Court, speaking through Mr. Justice De Jesús, said that the right to support is so intimately related with the determination of the paternity that we saw no reason why the whole controversy could not be decided in a single proceeding-whether it be directed to the declaration of the paternity and. as an incident thereto the claim for support, or whether it dealt, as in that case, with a claim for support where the paternity was incidentally established. Similarly to the prosecutions under § 263 of the Penal Code, the right of illegitimate children to receive support under the civil law rested, on the sole fact of the procreation to be proved in the same proceeding, without taking into account, for granting the support, other considerations with respect to filiation, nor the right to be acknowledged, and even if the latter failed or was improper.⁵

Up to the Cardona case and in practically all the other cases that followed, our civil and criminal decisions with respect to the support of the unacknowledged illegitimate offspring all had to deal either with natural children of unmarried father and mother at the time of their conception or with adulterine children begotten by a married man with an unmarried zooman. In People v. Santiago, 70 P.R.R. 798, decided in 1950, we were confronted for the first time, as we are here again, with a case of support for an alleged adul-terine child had by a married woman, born in 1941 following 180 days after the marriage of the mother and before the 300 days following its dissolution by divorce. The presumptive natural father was convicted of abandonment of said minor and irrespective of the evidence adduced which tended to establish that the defendant was the father, we relieved him from criminal responsibility pursuant to the provisions of §•§ 113 and 116 of the Civil Code.⁶ This time, speaking again through Mr. Justice De Jesús, we said:

. . But apart from this, since we are dealing with a criminal case, the presumption of legitimacy can not be challenged within this proceeding. In this respect § 116 of the Civil Code provides that the legitimacy can only be challenged by the husband or his legitimate heirs. In enumerating those who may challenge the legitimacy, the Code, naturally, excluded those that it did not mention in said Section. If it would have been the intention of the Legislature to vest the State with power to challenge the legitimacy, it could have easily done so. Ex parte Madalina, 164 Pac. 348 (Cal. 1917).

“It may be argued that the limitation as to who may challenge the legitimacy is within the purview of the Civil Code, and since no similar provision is contained in the Penal Code, § 116 is not applicable to criminal actions. This argument is untenable because § 116 establishes the public policy of the State in relation to contesting the legitimacy and, naturally, this policy should not vary with the nature of the proceeding brought.”

The same ruling of law was later applied in Pérez v. Rosario, 72 P.R.R. 480 (1951), in a similar situation involving a civil suit for support. Distinguishing the former decisions we affirmed the judgment which dismissed the complaint saying: “. . . Here the paternity of the child is established by law —§ 113 of the Civil Code, supra — as a legitimate daughter of appellant’s husband . . . .”

Such was the state of our case law which would permit us to dispose of this case without further consideration of the problem. But in 1954 we decided the case of Agosto v. Javierre, in which in an opinion of 3 of the 7 judges then present the Santiago case was overruled together with Pérez v. Rosario. This makes it imperative, before continuing the discussion of the matter before us, to enter into certain considerations as to which was actually the effect of the Javierre case, in the light of its own pronouncements, as to the manner in which we disposed of the Santiago case. Agosto v. Javierre originated as a civil claim for support only, under circumstances similar to those of the Pérez v. Rosario case. Since the minor involved in the Rosario case was born in 1950, and it being likewise a civil action, it is apparent that this decision was in conflict with the treatment thereafter given by the majority of the Court to the same situation in the Javierre case. That was not exactly the situation in the Santiago case where, it being a criminal prosecution, the action for support would have never become by itself a filiatory action and where there was no problem of “judicial acknowledgment.” (See footnote l.)⁷ Taking the overruling of the Santiago case as a pronouncement of the majority, the disposal of the problem now before us which we made in that case was not disregarded or in any other way altered by our ruling in the Javierre case, as is shown by the very statements of Mr. Justice Ortiz in his opinion. In order that the action of filiation recognized by Act No. 229 of 1942 to all illegitimate children could obtain significance and efficacy, the majority of this Court reached the conclusion that said Act had impliedly amended •§ 116 of the Civil Code so as to allow also the child to attack the legitimate paternity in search of the acknowledgment by his true father. In that opinion (77 P.R.R. at 468), it is said that in this type of cases [of an adulterine child formerly and at that time natural, but born of a married mother] the dominant action must be filiation and the claim for support must be considered as incidental to the action of filiation because, in order that a claim for support against the putative true father, other than the husband’s mother, may be successful it would be necessary to establish the paternity, that is, the parent-child relationship, which necessarily entailed an attack on the paternity of the husband, the destruction of the existing status of legitimacy being a necessary effect of the success attained in the claim for support. It was further stated that it would be unreasonable to uphold the right of support against defendant therein on the ground that the latter was plaintiff’s father, and at the same time maintain plaintiff’s status as legitimate son of the mother’s husband. And that if the controversy were consigned to the right to support, the plaintiff would be losing his status of legitimacy without establishing a new filiation. The basic proposition involved should be, it is added in the Javierre case, that of the minor’s filiatory relation and the identification of his true father, and the right to support would then flow from the filiation, which should be previously established. In the light of the foregoing considerations it was the opinion of this Court that the matter should be remanded to the lower court so that the case which had originated as an action for support be transacted as an action of filiation, for the purpose of preventing that the minor’s legal status remain in a vacuum. It will be noted that nothing previously said is in conflict with the disposal itself of the problem before us as made by this Court in the Santiago case. But there is still more. More relevant to the present case the opinion in the Javierre case reads: “. . . As a sequel to the foregoing norms, it is well to indicate, collaterally, that in cases such as this one, a criminal action of abandonment or for support should not be prosecuted, unless claimant’s true filiation is established in a proper civil proceeding.”

The decision of the Javierre case does not project juridically beyond its own context with respect to Act No. 229 of 1942. In deciding that this statute must have impliedly modified ⅝ 116 of the Civil Code so as to meet the purposes of that legislation, the standards of our law which historically and by reason of its superior social interest have safeguarded the integrity of the family in our culture, were not destroyed. Considering ⅞ 116 in the light of Act No. 229 of 1942, the power to attack the legitimate paternity was extended only to the child itself, where the latter would seek to establish his true filiation, as a means necessarily incidental to an acknowledgment which, under Act No. 229, he was already entitled to establish judicially. The power to attack was not extended to the mother even when she acted in representation and on behalf of the son, nor was it recognized to any other person or entity. On the other hand, we followed the rule laid down in Chabrán v. Méndez, 74 P.R.R. 719, in the expectation of a possible conflict of interest between the mother and the child. It flows from the foregoing that the legal ground on which the decision in People v. Santiago was based still survives, not only because the legislation has not been altered, but also by virtue of the very pronouncements of the Javierre case, and because of the fact that that criminal proceeding instituted by the state did not involve any problem as to the right of the very minor to attack his paternity pursuant to law as a means to obtain an acknowledgment permitted by the Act of 1942 and which was what this Court held to be fundamentally controlling in the Javierre case, relegating to a secondary plane the question of support as incidental to the filiation action. Agosto v. Javierre does not have the juridical effect ascribed to it by the judges of the lower court who entertained this case, nor does it project, as we previously said, beyond its own ambit, and, notwithstanding the overruling pronouncement contained therein, it did not divest of its reason of law the doctrine laid down in People v. Santiago. Finally, any doubt on this particular should have been dispelled in Pérez v. Torres, 79 P.R.R. 575, decided shortly thereafter in 1956, where the limited scope of the amendment made to ⅞ 116 clearly stands out. Even under the extreme circumstances that arise from the facts of this latter case, we did not allow a natural father to challenge the legitimate paternity in his endeavor to establish his status as the true father of the child had by him with a married woman.⁸ Having made plain the situation in the Javierre case, it is convenient to note that the doctrine of People v. Santiago has been applied and followed by American courts in analogous situations. In In re Mada lina, 174 Cal. 693, 164 Pac. 348 (1917), cited by Mr. Justice De Jesús, the Supreme Court of California (in bank), considering §§ 193, 195 and 196 (a) of the Civil Code of said state,⁹ discharged the prisoner on habeas corpus and released him from criminal prosecution for the abandonment of an illegitimate child had with a married woman, who was accused of violation of ⅞ 270 of the Penal Code, equivalent to our § 263, as amended shortly before in 1915, so as to include in its provisions illegitimate offspring. It was stipulated that in the preliminary examination the mother had testified to the non-access of her husband or of any other person other than the defendant for a period of 2 years next prior to the birth of the child. Notwithstanding the fact that the California court recognized to the mother the right to attack the legitimacy of the child, and also to the child itself as her descendant, its Supreme Court stated the following:

“We are satisfied that the position of counsel for petitioner is correct, and that any claim to the contrary is answered by a consideration simply of section 195 of the Civil Code, which declares that the presumption of the legitimacy of a child born in wedlock can only be raised by the husband or wife or the descendants of one of them. This is the declared policy of this state, and is simply the adoption of a rule prevailing generally in all civilized communities. . . . Counsel for respondent strenuously contends that section 195 of the Civil Code is inapplicable, because the criminal proceeding under section 270 is found in the Penal Code which as to all criminal procedure governs. But this contention is not sound. A mere place in the codes is not decisive of the effect or the application of code provisions. The Civil Code by section 195 was laying down a ride of public policy in a matter which the state deemed vital to society; it toas follotoing the civilized rule and made it applicable under all circumstances where the question of legitimacy of children born in wedlock was sought to be raised, prescribing a limitation as to the persons who might raise the question by expressly enumerating those who might do so ... . (Italics supplied.) When it came to providing for proceedings under section 270 the legislature did not in any language found therein, or anywhere else, abrogate what it had laid down in section 195 as to questioning the legitimacy of a child born in wedlock. This section 195 is to be considered with section 270 as in pari materia with the latter and must be construed as a part of it ... .

“But it is said by counsel for respondent that authority to raise the question of legitimacy where the child is born in wedlock must be implied from the enactment of section 270 authorizing the criminal proceeding; that such a proceeding can only be brought in the name of the state. True, the criminal proceeding must be in the name of the state — -the people — and is authorized to punish the parent of an illegitimate or legitimate child for an omission without excuse to support it. ... But when it is attempted to bring within its terms in a criminal prosecution a question of the legitimacy of children born in wedlock there is nothing directly or inferentially in the language of section 270 which authorizes the state to raise that question. To the contrary, the expressly declared policy of the state as found in section 195 precludes it from doing so, and in the interests of public policy, decency, morality, and the protection of innocent children this commends itself . . . .”

In our search of American decisions we have found that the preceding pronouncements have been frequently adopted as their own and followed by other state courts of appellate jurisdiction as the generally accepted rule.¹⁰

In reaffirming once more those principles we must point out that our ruling in People v. Santiago has, besides, another reason of being at law. Historically considered, it is somewhat uncertain and dubious whether, absent a legislative pronouncement which would tend to show otherwise, the amendment made to § 263 of the Penal Code in 1931 and the subsequent enactment of Act No. 108 of 1940 may be viewed as considering within the concept of “illegitimate” and as including a child which, according to the existing legislation which it can not be presumed the legislator ignored, did not fall under said classification because it enjoyed a legitimate paternity acknowledged by law from its birth and by reason thereof. Particularly, if one bears in mind that differently from other states where legislation has been enacted to authorize in specific cases the recovery of support under penal sanction, in situations similar to the present one, our Legislature has not permitted such thing against a presumptive father who is not and was not the husband, not even when it adopted a special statute for illegitimate children such as Act No. 108. But apart from any doubt as to whether said children were included or not in the criminal statute while they asserted a legitimate paternity, the criminal responsibility imposed by law under § 263 depends also, as does the legitimate paternity, on the fact that the child was begotten by the one who is deemed to be the father.¹¹

It is evident, as revealed by several of the cases cited, that as a question of law no criminal responsibility may be cast on a person other than the father recognized by law and who has the duty to give support, while this paternity subsists and has not disappeared, unless it is legally challenged or destroyed by the judgment rendered in the proper criminal proceeding, which is impossible herein under our state of legislation.¹²

The preceding conclusion is not at variance with our earlier cases which involved children of unmarried mothers lacking in law a father who could be made criminally responsible under § 263. We permitted proof of who the father was. It is in the light of that situation of fact and of law that the pronouncement of those cases should be construed.

This decision does not prejudge in one sense or another the question of the paternity of the minor. Unquestionably, the child is entitled to bring a civil action for the declaration of paternity and support against petitioner herein and to establish that he is her father, even if it entails the challenge of the paternity by law. (Agosto v. Javierre, except that in view of the fact that the birth took place after the effectiveness of the Constitution, the child is not bound to bring an action of filiation under § 125). Not until the existing legislation is amended, the action to be followed should permit the child pursuant to law to change from a filiatory status to another with the proper adjudication of the rights of all the parties affected, including any conflict of interest between the minor and its own mother since, as a consequence of the child’s claim he shall cease to belong to a family with all the rights inherent to him therein in order to become a member of another family with other rights or none of them.

As we have seen, this child was born after the effectiveness of the constitutional provision which prohibits discrimination by reason of birth. We must point out that §113 of the Civil Code was not rendered void, ipso jure, by said constitutional provision. If such were the case the judgment on review should be affirmed without more as a question of law, provided the facts are supported by the evidence. Section 113 does not establish by itself any discrimination and its reference to “legitimate children” does not create for those born after July 25, 1952, any difference amid the children of the same father, in view of the provisions of Act No. 17 of August 20, 1952, which provides that all children shall have with respect to their parents and to the property left by them, the same rights that correspond to “legitimate” children. This section has no other effect in this case than the purpose for which it was designed: to declare as children of the mother's husband those born from her within the period fixed therein. As an assertion of a public policy which is based on the old maxim “pater est is . . .” and which with differing modalities we have sanctioned in the family law in all the codes, § 113 offers no conflict with the constitutional trend to dignify the human being in the equality of the children.

Where the support of a child is concerned, we are not now unaware of the urgent and essentially practical aspect of the problem. Our decisions show that we have always been very conscious of this interest of the minor. However, in cases such as the present one, where a minor is born of a married woman and given paternity by law — and what is decided here only covers this situation — another social interest evidenced by a clear and well-defined legislative policy precludes in law the use of the proceedings under § 263 of the Penal Code and Act No. 108 of 1940. It is rather incumbent on the Legislature to offer the desirable solution in this type of cases in the light of the different social interests involved, as has been done by the legislature of many other states where an analogous situation has arisen.

For the foregoing reasons the judgment on review shall be set aside and the record remanded to the trial court with instructions to dismiss definitively this criminal action.

It so appears in the original. It is probably an error of transcription since the complaint was filed June 14, and the hearing was held on August 4, 1955.

1 The Court was divided 4 to 3. The present Chief Justice, Mr. Negron Fernández, concurring in a separate opinion in this case, constituting the majority vote which reversed the judgment and remanded the case, stated as follows: ' “That is why, in concurring in the reversal of the judgment appealed from and signifying my conformity with the doctrine laid down in Mr. Justice Ortiz’s opinion and which recognizes the minor’s right to bring an action of filiation seeking his true father, notwithstanding his status of legitimate child under the Civil Code — by virtue and operation of Act No. 229 — I do so with reservation as to some particulars which in my judgment were unnecessarily discussed in that opinion and I signify my disagreement as to others, particularly the need for amending the complaint, since in my opinion and according to my views in Figueroa v. Díaz, supra, the said complaint sets forth a cause of action of filiation which.requires no amendment.”

2 Section 283 of the Penal Code (1937 ed.) 33 L.P.R.A. § 991.

3 Section 128 of the Civil Code (1930 ed.), 31 L.P.R.A. $ 507.

“The illegitimate children lacking the lawful qualification of natural children are only entitled to such support from their parents, as is prescribed in section 143.”

Section 129 of the Civil Code (1930 ed.), 31 L.P.R.A. $ 508.

“The right to the support mentioned in the preceding section can only be exercised:

“1. Where the paternity or maternity is inferred from a final judgment rendered in a criminal or civil action.

“2. Where the paternity or maternity is shown by an indubitable document from the father or mother wherein the filiation is expressly recognized.”

Original text incorrectly reads “36”.

4 See: People v. Rotger, 55 P.R.R. 133 (1939); People v. Pérez, 55 P.R.R. 655 (1939) ; People v. Saldaña, 55 P.R.R. 885 (1940) ; People v. De Jesús, 57 P.R.R. 694 (1940) ; People v. Calzada, 58 P.R.R. 512 (1941) ; People v. Emanuelli, 61 P.R.R. 202 (1942) ; People v. Bernabe, 63 P.R.R. 385 (1944) ; People v. Cáceres, 65 P.R.R. 344 (1945) ; People v. Avilés, 66 P.R.R. 278 (1946); People v. Santiago, 67 P.R.R. 80 (1947) ; People v. Rodríguez, 67 P.R.R. 688 (1947) ; People v. Méndez, 67 P.R.R. 772 (1947) ; People v. Ortiz, 67 P.R.R. 848 (1947) ; People v. Mercado, 69 P.R.R. 310 (1948); People v. Suárez, 70 P.R.R. 435 (1949) ; García v. Acevedo, 78 P.R.R. 580 (1955).

5 Falcón v. Cruz, 67 P.R.R. 496 (1947) ; Rosario v. Suárez, 67 P.R.R. 552 (1947) ; People v. Rodriguez, 67 P.R.R. 688 (1947) ; People v. López, 67 P.R.R. 732 (1947); Cerra v. District Court, 67 P.R.R. 872 (1947) ; Rodríguez v. Cruz, 68 P.R.R. 696 (1948) ; Vargas v. Jusino, 71 P.R.R. 362 (1950); Molini v. District Court, 72 P.R.R. 884 (1951) ; cf. Armáiz v. Santamaria, 75 P.R.R. 544 (1953). See Act No. 108 of 1940 and the following’ cases construing it: People v. Lamboy, 59 P.R.R. 173 (1941) ; People v. Emanuelli, 61 P.R.R. 202 (1942) ; People v. Ramos, 61 P.R.R. 372 (1943) ; Rosario v. Suárez, 67 P.R.R. 552 (1947) ; People v. Méndez, 67 P.R.R. 772 (on reconsideration) (1947); Maldonado v. Warden, 73 P.R.R. 199 (1952).

6 Section IIS of the Civil Code (1930 ed.) 31 L.P.R.A. $461.

“Legitimate children are those born 180 days after the marriage has been celebrated and before 300 days have passed after the marriage has been dissolved.

“Against legitimacy no other proof shall be admitted than the physical impossibility of the husband to use his wife within the first one hundred and twenty days of the three hundred days that have preceded the birth of the child.”

Section 116 of the Civil Code (1930 ed.) 31 L.P.R.A. $ 464.

“Legitimacy can only be disputed by the husband or his legitimate heirs. The latter can only contest the legitimacy of a child in the following cases: . . . .”

7 Mr. Justice Negrón Fernández, then Associate Justice, expressed his agreement with the doctrine of the aforesaid opinion which recognized the right of the minor to file an action of filiation to seek his true father [for which purpose the right of the minor to attack his legitimate paternity was being recognized] but with reservation as to some of the other particulars of said opinion.

8 In this case the child was registered as the legitimate daughter oí the mother and her husband. The natural father requested the annulment of the birth certificate and that she be recorded as his own natural child. He sued the daughter, the mother, and the husband, alleging that the child had been begotten while he lived in public concubinage with the married mother of the child, that he had held the child as having continuous possession of the status of natural daughter, and that he had attended her and supported her the same as his own legitimate children. The husband defendant appeared by counterclaim reproducing the same averments as well as the prayer to which the plaintiff acquiesced. Notwithstanding these circumstances we denied the cause of action of the natural father applying §§ 113 and 116.

9 Section 193 provides that all children born in wedlock shall be presumed legitimate. Section 195, prior to its amendment in 1955, provided that said presumption of legitimacy could only be challenged by the husband or wife or descendants of one or both of them. Section 196 (a) imposes on the parents of an illegitimate child the duty to support him and permits the mother to file a civil action against the father on behalf of said child to enforce said obligation.

10 See: Annotation in 1 A.L.R. 1632 (1917) and the Supp. Annotation in 53 A.L.R.2d 572 (1955). See also: State v. Coliton, 17 N.W.2d 546 (1945); State v. Reed, 149 S.E. 669 (1929); State v. Fury, 205 N.W. 877 (1925); Commissioner of Public Welfare v. Koehler, 30 N.E.2d 587 (1940); State v. Randall, 53 So.2d 689 (1951); State v. Lemoine, 69 So.2d 15 (1953); State v. Jones, 56 So.2d 724 (1951); Jenkins v. Aetna Casualty & Surety Co., 158 So. 217 (1935); In re Findlay, 170 N.E. 471 (1930); González v. Pacific Greyhound Lines, 209 P.2d 598 (1949) ; Serway v. Galentine, 170 P.2d 32 (1946) ; In re Tinkers Estate, 215 Pac. 779 (1923) ; Miller v. Tyndall, 212 Pac. 989 (1923); Graham v. Lee, 37 So.2d 735 (1948); County of Santa Clara v. Doll, 337 P.2d 582 (1959); Kowalski v. Wojtkowski, 116 (1955). These cases, among others, offer an elaborate discussion on the rules that govern Anglo-American jurisdictions concerning the challenge of the legitimate paternity of the children, as the same have developed from the historical point of view of the common law (Lord Mansfield Rule) through the positive legislation adopted on this point by the different states. As particularly illustrating these rules we have the opinions in the case of Kowalski v. Wojtkowski, supra, where the Supreme Court of New Jersey held that, under its own proceedings, a mother domiciled in New Jersey could not recover support from a presumptive natural father, also domiciled therein, for children born in Florida while she was married to another person, under the doctrine that in Florida, where the children were born, the mother was not permitted to attack the legitimate paternity of said children. The presumption that children born in wedlock are legitimate is of general application in the states. The decisions show different views rather as to how and who can destroy said presumption pursuant to the public policy of each state according to its own legislation. However, we have found no authority maintaining that the general legislation of the state on this point, because of the mere fact of its civil nature, is not equally applicable in criminal cases or in any other proceeding for a particular relief in which the question is raised.

11 Section 108 of the Spanish Civil Code provides that children born within a specific period fixed therein shall be presumed legitimate. Our Code, following closer the Roman law maxim “pater est is quern nuptiie demonstrant,” declares in its equivalent § 113 that the children are legitimate, although like the Spanish Civil Code, it permits certain evidence of exclusive character against the fact declared. The scientific reason for § 113 arises from the viability of the child born based on the doctrine of Hypochrates, followed by doctor Foureroy in drawing up the Code Napoleon and in other legislations, to which doctrine Manresa refers thus: (Comentarios al Código Civil Español, Vol. 1, p. 643, 7th ed.) “The reasoning of the lawmaker has been consonant with the Roman texts (Ulpiano, Digest, 3rd law, tit. 16, bk. 38), which copy from the Partidas thus: ‘Hypochrates was a philosopher in the science of physic, who said that the greatest length of time a woman can carry a child in her womb, is ten months .... That philosopher also said, that a child born after seven months, provided its birth was one day only after the seventh month began, and it be perfect and capable of living’; therefore, in either case it could have been, naturally, begotten by the husband.” See: Puig Peña, Tratado de Derecho Civil Español, Tome II, Vol. II, pp. 15-32; Judgment of the Supreme Court of Spain of January 24, 1947 and others reviewed by Medina & Marañón, Leyes Civiles de España, pursuant to 108 et seq. of the Civil Code; Manresa, op. eit. pp. 649-657.

In view of the fact that the petitioner raises a second question of fact to the effect that the evidence introduced did not show the physical impossibility of the husband to have carnal access to the complainant, we should make clear that we are not considering said question nor anticipating judgment as to the application to criminal claims of the second paragraph of § 113 with respect to the nature and the exclusiveness of the evidence permissible to attack the legitimacy, or to any other civil action instituted by the child in which the challenge is involved.

12 Thirty-eight years after the prevalence of the ruling in the Madalina case, supra, California, in 1955, met the situation by amending § 195 of the Civil Code. It provided that the presumption of legitimacy can be disputed only “by the people of the State of California in a criminal action brought under the provisions of Section 270 of the Penal Code,” or by the husband, etc. (Amendment in quotes.)