
    The People v. Martínez.
    Appeal from the District Court of San Juan, Section 2.
    No. 413.
    Decided February 14, 1912.
    Criminal Law — Simple Assault and Battery — Excessive Penalty — Modification of Judgment Appealed From. — The penalty of a fine of $300 or in default thereof one day íd jail for each $2 of the fine not paid imposed upon a person charged with simple assault and battery is excessive because-it is not justified by the provisions of section 5 of the Act approved March 10, 1904, concerning assault and battery, and in the ease at bar the judgment was modified reducing the penalty to a fine of $50 and costs, which, was the penalty imposed by the municipal court.
    The facts are stated in the opinion.
    
      Mr. Jacinto Texidor for appellant,
    
      Mr. Charles E. Foote, fiscal, for respondent.
   Mr Justice MacLeary

delivered the opinion of the court-

The defendant in this case, who is here the appellant, was prosecuted before the Municipal Court of Carolina for an assault. The complaint presented on June 26 last reads, as follows:

“United States of America. The President of the United States, ss. The People of Porto Rico v. Ventura Martínez. I, José F. Colón,. I. P., 26 years of age, residing at Río Piedras, No. 22 Oriente Street,, bring this information against said accused for the crime of assault and battery committed as follows: That on June 25, 1911, at 12.30 a. m., in Comercio Street of Río Piedras, in the judicial district of the municipal district of San Juan,' the accused maliciously and wil-fully assaulted and struck Acisclo Marcano with a stick, causing two-wounds on his head, and the latter was taken to the municipal hospital, where said wounds were attended to. I beg to report the above in compliance with the law as this act is contrary to the law for such cases provided. Witnesses: Arturo Lafontaine, I. P., and Acisclo Marcano. José F. Colón, I. P. No. 193, Informer. Sworn to before me to-day, June 26, 1911. José E. Montesinos, Justice of the Peace of Río Piedras.”

On a trial in the Municipal Court of Carolina he was found guilty and sentenced to pay a fine of fifty dollars ($50) and costs, and lie appealed therefrom to the District Court of San Jnan. In the said district court a trial was had on December 28 last, and the defendant was found guilty and sentenced to a fine of three hundred dollars ($300), or one day in jail for each two dollars of the fine which remained unpaid, and to the payment of the costs.

From this judgment of the district court the accused appealed to this court and has presented here the record which contains, in addition to the complaint, judgment and sentence, a statement of facts showing all the testimony adduced on the trial. The accused was represented in this court by counsel and The People by the fiscal, and both parties filed briefs.

The appellant does not deny, nor did he in his testimony before the trial court which appears in the record, that he had struck with his cane Acisclo Marcano, although he alleges that he was provoked by that person with offensive words. The fiscal in his brief admits that the complaint, as it appears in the record, is for the offense of a simple assault and battery, and that the accused was found guilty of that offense by the trial court.

By reference to the statute it will be seen that section 5 of the Act approved March 10, 1904, declares that the punishment for an assault and battery where no aggravating circumstances appear shall be fixed at a fine of not less than $1 and not’ more than $50. So it is clearly seen that the punishment of $300 fine or in default of payment one day in jail for each $2 of the fine which remained unpaid and which was imposed by the trial court, is excessive and not justified by the statute. It is unnecessary to go into the proof as shown in the record unless it be to reduce the fine lower than $50. The proof shows gross insult on the part of the injured person towards the accused, and, if words could justify an assault, such words as were used might be pleaded in justification. But without going further into the proof, we think that the judgment should be modified so as to impose tlie punishment fixed in the first place by the municipal court, a fine of $50 and costs.

Decided accordingly.

Chief Justice Hernández and Justices Wolf, del Toro and Aldrey concurred.  