Martinez de Hernandez v. Bertran , 1 P.R. Fed. 269 ( 1904 )

Holt, Judge,

delivered tbe following opinion:

By virtue of tbe service of a subpoena duces tecum issued in tbis case, tbe clerk of tbe Humacao insular district court bas appeared in tbis court with certain records of that court, which it is claimed are necessary in evidence in tbis court. Tbe people of Porto Rico is not a party to tbis suit. It is urged by brief by tbe Assistant Attorney General of Porto Rico, acting, as the court may perhaps consider, as amicus curice, and also representing generally tbe insular courts of Porto Rico, that tbis court bas no power to compel tbe production of tbe records of the insular court, in tbis court. Tlie use of such a process generally is essential to tbe very existence of a common-law court; but it is a general rule that a custodian of public documents will not be required to bring them into court under sucli a subpoena, if official copies can be bad. It would obviously be improper that public records should be removed' from the care of their proper custodian or their usual place of deposit whenever they are needed for use as evidence; and hence their contents may be shown by a properly authenticated copy. What the records may prove may, of course, be shown by the production of the originals without more, or by a proper copy. The original is produced when the cause is in the same court, or it is the subject of proceedings in a superior court. Undoubtedly one court should grant to another the use of its records, and direct its officers to obey the subpoena duces tecum therefor, whenever it is shown that the originals are material in evidence in a cause pending in the court issuing such subpoena. This is proper judicial comity. It cannot be expected, however, that this should extend so far as to deprive the court, in which the records belong, of their use if necessary for present consideration, or if the cause to which they belong has not been finally decided.

The United States court in Porto Rico belongs to one jurisdiction, and the insular courts to another jurisdiction. Each is independent within its sphere, but all form one judicial system. This court does not hold that it has the power to deprive an insular court of its records, or bring them into this court for use, without the consent of the insular court. It does not control them. It has no power over them. It does, however, expect that the insular court will consent to this being done, and permit its officer to bring them under a subpoena duces tecum from this court, if they are not in use in the insular court or necessary for consideration, and the originals are necessary in this court. In other words, if the records are not necessary for immediate use, then judicial comity dictates that the officer of the other court should be permitted to bring them; and this court has no doubt there would be uo objection to it. This court has already permitted some of its records to be taken by its clerk for use in an insular court.

It appears that the records which have been brought to this, court by the secretary of the district court of Humacao belong to disjoosed of cases, save one, which is a criminal proceeding and yet pending on a motion to dismiss; and the fiscal of that court has requested that it be returned as soon as possible. That court has not expressed, so far as is known to this court, any disinclination to let the secretary bring the records; and they are now here, and he expresses a willingness to leave them in charge of the clerk of this court until they have been used, and then to be returned to him.

Under these circumstances said records will so remain until it becomes known to the court in some way that the district court of Humacao is unwilling to permit such use, save it is now ordered that the record of said criminal proceeding be returned to said court or delivered to its secretary.