People v. Montalvo Acevedo
People v. Montalvo Acevedo
Opinion of the Court
delivered de opinion of the Court.
Section 253 of the Code of Criminal Procedure, 1935 ed., 34 L.P.R.A. § 732, provides that a conviction can not be had on the testimony of an accomplice unless it is corroborated by other evidence which, “in itself and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense.” The
Regarding the necessity for corroborative evidence, we have said that an accomplice is one who willfully and knowingly — without there being coercion — “voluntarily and with intent, somehow joins in the commission of a crime, being therefore liable to prosecution for the same offense.” In other words, it is essential that the accomplice be prosecuted for the same offense as the person accused. People v. Adorno, 81 P.R.R. 504 (1959) (bribery); People v. De Jesús, 73 P.R.R. 699, 708 (1952) (bolita); People v. Rosado, 72 P.R.R. 773 (1951) (crime against nature); People v. Collazo, 38 P.R.R. 891 (1928) (corruption of minors); People v. Millán, 35 P.R.R. 817, 826 (1926) (rape). Otherwise stated, a person may participate at times in wrongful acts which constitute an offense and not be an accomplice, and is not therefore liable to prosecution. Such is the case of the offended woman in the case of seduction, People v. Cabranes, 7 P.R.R. 297 (1904), for as in other sexual offenses or acts offensive to morals, she is the victim rather than an accomplice, People v. Flynn, 333 P.2d 37 (Cal. 1958); Hardaway v. State, 319
In the instant case the question is whether the testimony of a minor about nine years of age must be corroborated for the purpose of the conviction of two adults, who jointly with him participated in acts constituting burglary in the first degree. It is necessary to clarify that, except for the minor’s testimony, the district attorney did not offer other evidence tending to connect the defendants with the commission of the offense. An examination of the transcript reveals that four persons whose residences or businesses were burglarized testified, thereby establishing the corpus delicti, but none of them connected the defendants with these acts. It also appears beyond doubt that at the time of committing the acts the minor was fully conscious of the wrongfulness of the act, and that there is no indicia that he was coerced or intimidated in so doing.
Section 39 of the Penal Code, 1937 ed., 33 L.P.R.A. § 85, provides that children over the age of seven years but under the age of fourteen years are incapable of committing crimes, in the absence of clear proof that at the time of committing the act charged they were aware of its wrongfulness. However, this provision, which conserves its original language since 1902, can not be considered isolatedly in order to exact criminal liability, but must be read jointly with Act No. 97 of June 23, 1955 (Sess. Laws, p. 504, 34 L.P.R.A. § 2001 et seq.), which provides in its § 11 that no proceeding regarding a child shall be deemed to be of a criminal nature, “nor shall said child be .. . considered as a criminal or a
We have been unable to find any precedents in other jurisdictions on the specific point involved in this case. It has been held, however, that persons who have aided in the commission of a criminal act are not accomplices whose testimony must be corroborated, because it is so provided by a statute or the existing common-law rule. In Thorpe v. State, 304 S.W.2d 309 (Tenn. 1957), a conviction of misdemeanor
Professor Wigmore
We therefore hold that since minor I... G... was not “subject to prosecution” for the offense of burglary, he is not an accomplice whose testimony must be corroborated.. And he could not be prosecuted because Act No. 97 of 1955, supra, does not prescribe a proceeding of a criminal nature. There is no basis, then, to apply the rule of corroboration of an accomplice’s testimony, nor is there any element of promise or expectation of immunity or clemency because a criminal prosecution can not be brought. Reasons of public policy strengthen this conclusion. A contrary holding would constitute a clear invitation to unscrupulous criminals who, by inducing minors to participate in wrongful acts, openly violate the law by reason of the necessity for corroborating the minors’ testimony. The consequences would not only reflect on the prosecution of the offense committed by adults, but would contribute to foster a practice which would encourage juvenile delinquency and defeat in no small measure the rehabilitation of minors provided by the lawmaker by virtue of the Act mentioned through a special proceeding, divorced from the connotation of criminal prosecution which characterizes the prosecution of adults.
The other two errors assigned by the appellants are clearly frivolous, People v. Díaz, 61 P.R.R. 673 (1943); People v. Matos, 81 P.R.R. 496, 503 (1959); People v. Díaz 74 P.R.R. 348 (1953), and can not be raised for the first time on appeal, People v. Vázquez, 75 P.R.R. 22, 27 (1953); People v. Cariño, 69 P.R.R. 806 (1949).
The errors assigned not having been committed, the judgment rendered by the Superior Court, Arecibo Part, on June 29, 1959, will be affirmed.
In a very graphic way, the minor relates that when he encountered the defendants, whom he did not know until then, they “asked us if we were going up there and invited us to steal” (Tr. Ev. 20). After this “invitation” the burglary was committed. With the exception of one of the cases, in the others the minors entered through the windows into the places to be stolen, while the adults facilitated the entry and remained on watch. The adults divided the loot; the minors did not participate in the distribution.
According to 5 4 (34 L.P.R.A. § 2004), the judge in charge of matters concerning minors may order a change of venue for the ease to be dealt with as that of an adult under certain circumstances, when the act would constitute a felony if committed by an adult, and the child is over 16 years and under 18 years of age.
The age of 18 years in the case of minors is a prominent element in our provisions on civil capacity: for the purpose of contracting marriage, § 70 of the Civil Code, 31 L.P.R.A. § 232; for the purposes of emancipation, § 233 of the same Code, 31 L.P.R.A. § 911.
VII Wigmore, Evidence 322, $ 2057 (3d ed.).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.