
    The People v. Franco.
    Appeal, from the District Court of Guayama.
    No. 275.
    Decided December 1, 1910.
    Appbai — Aggravated Assault and Battery — Punishment.—The crime of aggravated assault and battery cannot be punished in accordance with section 5 of the Act of March 10, 1904, defining and punishing said crime, but in accordance with section 8 thereof; and in case of appeal,' the Supreme Court has the power to modify the punishment imposed so that it shall come within the purview of said section 8.
    The facts are stated in the opinion.
    
      Mr. V. F. Rodriguez Ortiz for appellant.
    
      Mr. Jesús M. Bossy, fiscal, for respondent.
   Mr. Chief Justice Hernández

delivered the opinion of the court.

This appeal was taken by Sinforoso Franco from a judgment of the District Court of Guayama, by which court he was found guilty of the. crime of aggravated assault and bat.tery and sentenced on October 11 last to pay a fine of $30 and costs and, in default thereof, to imprisonment for a term not to exceed 30 days.

This judgment was rendered after a new trial had been held under a complaint filed in the municipal court of Cayey by Florencio Martínez charging that Sinforoso Franco, on the morning of July 27 last, had voluntarily and maliciously assaulted him, causing him the wounds and bruises which he exhibited.

Neither a bill of exceptions nor a statement of the case accompanied the record, nor has the appellant here made any written or oral allegation in support of this appeal; hut the 'fiscal of the Supreme Court, orally and in writing, has called our attention to the fact that, in the case of the accused, the inferior court committed an error in applying section 5 of the law herein referred to, approved March 10, 1904, instead of imposing the punishment provided by section 8 thereof.

The fiscal’s assertion is correct, as section 5 of the said law which the judge followed in imposing the punishment provides the penalty for assault and simple assault and battery, while section 8 fixes the punishment for aggravated assault and aggravated assault and battery providing for a fine of not less than $50 nor more than $1,000, or imprisonment for not less than one month nor more than two years, or both such fine and imprisonment.

The court below has, therefore, violated said section 8 in the judgment from which this appeal is taken, and it should be modified by this court in the exercise of the power which is vested in it by section 364 of the Code of Criminal Procedure.

Consequently, the judgment appealed from should be modi-fiéd here by sentencing the appellant to pay a fine of $50, or to suffer imprisonment therefor, in which case said imprisonment shall not exceed one day for each dollar remaining unpaid, with the costs against the accused.

So ordered.

Justices MacLeary, Wolf and del Toro concurred.

Mr. Justice Figueras did not take part in the decision of this case.  