
    People, Plaintiff and Appellee, v. Ortiz, Defendant and Appellant.
    Appeal from the District Court of Gfuayama in a Prosecution for Assault and Battery.
    No. 1741.
    Decided May 26, 1921.
    Assault and Battery — Evidence—Presumption.—In the prosecution of a criminal cause where the age of the defendant is an essential element of the crime, as in assault and battery upon a woman by an adult male, the record must show that the judgment was based on the evidence, there being no presumption that the court estimated the age of the defendant from his appearance.
    The facts are stated in the opinion.
    
      Mr. José J. Aponte for the appellant.
    
      Mr. José E. Figueras, Fiscal, for the appellee.
   Mr. Justice Wole

delivered the opinion of the court.

At the trial of this case there was absolutely no evidence to show that the defendant, charged with being an adult male and beating a woman, was in fact such an adult. This was apparently error as decided by our opinion in People v. Colón, 25 P. R. R. 586.

The district attorney attempts to distinguish the case by saying that where a misdemeanor is being tried and the defendant is not present and represented by counsel, there would be no means of judging his age.

We can not agree with the district attorney. On a trial of a criminal case it should definitely appear in the record that defendant was convicted on proof. In spite of the fact that it was shown that the defendant’s child got into difficulties with the woman assaulted would not be certain proof that the defendant was over 21 years of age. He might have been the father of a child four or more years old and still not be 21 years of age.

The record should show in any event that the court took a look at the defendant and judged of his age. In the case of Tracy v. The State, 44 Texas, 10, the court says:

“In the statement of facts the defendant is spoken of as a man who kept an hotel and wore whiskers, and the party that was beaten, when spoken of as a witness, is called Nancy Sheppard, whose given name is usually that of a female, and when therein designated as the person beaten is spoken of as ‘shed
“"When there is thus in open court a patent recognition by all the parties concerned in the trial of the existence of necessary facts, they may well be presumed to exist, unless the party interested in their non-existence should avail himself of the opportunity at the proper time to institute a more minute and searching investigation of the subject, for the purpose of rebutting the obvious appearances and assumptions.”

Apparently, in this statement the Texas court decides that the defendant either waived the matter of his being an adult or is estopped to raise such question, not having presented it in the court below. In the case before us, however, the defendant offered no proof and filed a motion of non-suit because it was not proved that the defendant was an adult. So, evidently, the defendant did not waive any of his rights, but distinctly drew the attention of the district court to the fact that his being of age had not been proved, and hence this case can be readily distinguished from Tracy v. The State, supra, even if the district attorney were relying on this matter of waiver.

The judgment in this case found the man guilty of aggravated assault and battery and sentenced him to pay $50, or to suffer a day in jail for every dollar that he failed to pay. The fine of $50 is the maximum for simple assault and battery and is the minimum for aggravated assault and battery. We have frequently modified judgments of this kind, reducing them to judgments of simple assault and battery, and we shall do so in this case, because even if the defendant was not technically an adult, he was necessarily so nearly of age that his offense was a grave one in striking a woman. Even a youth could not learn too early that he must not lay violent hands on a woman, and therefore the judgment will be modified in this case to read that the defendant is guilty of simple assault and battery and sentenced to pay $50 fine, or to suffer a day in prison for every dollar that he fails to pay.

Modified and affirmed.

Chief Justice Hernández and Justices Del Toro, Aldrey and Hutchison concurred.  