
    The People, Plaintiff and Appellee, v. Hernández, Defendant and Appellant.
    Appeal from the District Court of San Juan, Section 2, in a Prosecution for Aggravated Assault and Battery.
    No. 811.
    Decided July 24, 1915.
    Arrest — Warrant—-Misdemeanor.—In making an arrest -without a warrant for a "breach of the peace or any other misdemeanor, the officer must act promptly at the time the offense is committed. If he does not act immediately after the offense has been committed, as a rule he cannot make an arrest later without securing a warrant and proceeding in accordance with its terms.
    Id.- — -Warrant—Reasonable Time. — Where the facts are undisputed the question as to what is a reasonable time within which an officer may make an arrest without a warrant is a matter for the court to determine.
    Id. — -Warrant—Assault and Battery. — When after having witnessed the commission of a misdemeanor a policeman departs on other .business, or for other purposes, and afterwards returns, he cannot then make an arrest for the said offense without a warrant. If he does make the arrest in such circumstances without informing the defendant of his authority to make the arrest or of the crime charged against him and is assaulted and beaten by the defendant, the offense is one of simple assault and battery.
    The facts are stated in the opinion.
    
      Mr. Antonio Trujillo Guil for the appellant.
    
      Mr. Salvador Mestre, fiscal, for the appellee.
   Mr. Justice Wolf

delivered the opinion of the court.

Gaspar Hernández was charged with having committed an aggravated assault on Higinio González, a police officer. The testimony of this policeman tended to show that on the night of March 7 he went to the shop of the defendant to induce the latter to sell something to eat to Juan de la Cruz, for the latter’s family; that it was after the hour that shops-were allowed to remain open, but one door of defendant’s shop was open while all the others were closed; that the' defendant refused to sell anything and called the policeman several hard names like “canalla,” “ranchista” and others, which would imply that defendant suspected that the police officer had come to trap him; that the policeman retired,, the defendant still• continuing to use provocative language;. that when the policeman, as stated by him, came back later and tried to. arrest defendant for the use of this insulting and provocative language, the defendant assaulted and battered him, throwing several things at him, one or more of which struck him. It does not appear that the police officer suffered any injury.

The witness Pavón was called by the government. Tie gave testimony tending to show that the policeman gave the provocation, but he finally said under examination by the fiscal that he had previously stated to that officer that a bottle was thrown in the shop of G-aspar Hernández. His testimony was favorable to Hernández. The fiscal sought to show that Pavón had made contradictory statements and both the fiscal and the judge asked him questions tending to show that the wife of the witness was related to the wife of Gaspar Hernández. We think, in spite of the irregularities in its- production, the evidence tended to show that Gaspar Hernández committed an assault and battery on Higinio González. On the other ■ hand, we do not think that when the policeman went back to the shop of Hernández he was there in the discharge of an official duty. The policeman says that he told'the defendant he was arrested, but there wa§ no showing that the said policeman had a warrant or that he informed the' defendant of the crime with which -he was charged. Section 121 of the Code of Criminal Procedure provides:

“ The ’ person making an arrest must inform the person to be arrested of the intention to arrest him, of the cáuse of the arrest, and the ■ authority to make it, except when the person to be arrested is actually engaged in the commission of -or an attempt to commit an offense, or is pursued immediately after Its commission, or after an escape.”

The law is set forth in 2 Buling Case Law, 451, to wit:

“In making an'arrest without a warrant for breach of the peace or- a misdemeanor, an -officer must act promply- at the time of the offense. -If he does not ,act immediately after' the offense has been committed he pan thereafter make arrests only by procuring a warrant and proceeding in accordance with its terms. The same rule applies to an arrest made by a private individual in cases in which, if he acts immediately, an arrest without a warrant would be permitted. The reason for the rule lies in the principle that the authority to make an arrest without a warrant for a misdemeanor exists only when it is necessary to maintain the public peace. Where the facts are undisputed the question as to what is a reasonable time within which an officer may make an arrest without a warrant is a matter for the court to determine. A delay of half an hour in order to procure help in making the arrest may be reasonable, while a delay of two hours may be unreasonable, especially if the officer meanwhile is doing nothing connected with the arrest. A delay of several months before an attempt is made to arrest for breach of an ordinance cannot in any way be justified. The shortness of the interval does not really determine whether the right to make the arrest without a warrant exists, but the delay merely throws light on the question whether the arrest was inade as soon as the circumstances permitted. When a policeman, after having seen a breach of the peace or a misdemeanor committed, .departs on other business, or for other purposes, and afterwards returns, he cannot' without a warrant 'make an arrest for the offense; but where the officer finds it necessary to procure assistance, a considerable time may be employed in the pursuit. The officer must at once set about the arrest, and follow up the effort until the arrest is effected. There should be no delay in making the arrest, and in order to justify it there should be a continued attempt on the part of the officer or person apprehending the offender to make the arrest, and he cannot delay for any purpose which is foreign to the accomplishment of the arrest. ’ ’

See also commentaries to section 836, Penal Code of California, equivalent to section 116, Code Criminal Procedure. See also Wahl v. Walton, 30 Minn. 506. No reason is shown for not making the arrest at the time of the alleged first provocation. The defendant was not informed of the authority of the policeman to make the arrest or of the crime charged against him. Hence there was no aggravated assault and battery and the judgment must be • .

Modified and affirmed.

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