
    People, Plaintiff and Appellee, v. Trinidad, Defendant and Appellant.
    Appeal from the District Court of San Juan, Section 2, in a Prosecution for Aggravated Assault.
    No. 1125.
    Decided March 7, 1917.
    Defective Judgment — Modification of Judgment. — When the record contains sufficient data to enable this court to do what the district eourt might have done and presumably would have done had the matter been called to its attention, or what it might do and unquestionably would do were the ease remanded, the judgment appealed from should not be reversed but modified in so far as necessary to cure the defect and then affirmed as modified.
    Aggravated Assault .— Aggravated Assault and Battery — Modification of Judgment. — Applying the foregoing doctrine, when a complaint charges aggravated assault and the court finds the defendant guilty of aggravated assault and battery, this court on appeal may correct the error and modify the judgment by striking out the words “and battery” and affirm the judgment as modified.
    The facts are stated in the opinion.
    
      Mr. Marcelino Romany for the appellant.
    
      
      Mr. Salvador Mestre, fiscal, for the appellee.
   Mr. Justice HutchisoN

delivered the opinion of the court.

On a trial de novo in the district court appellant was convicted of aggravated assault and battery under a complaint charging aggravated assault only.

We quite agree with appellant' as to the only point raised in his brief, to wit, that the district court erred in convicting him of aggravated assault and battery under a complaint that charges no battery, and that the judgment as rendered below cannot stand; but we have heretofore held that, when the record contains sufficient data to enable this court to do what the district court might have done and presumably would have done had the matter been called to its attention, or what it might do and unquestionably would do were the ease remanded, the judgment appealed from should not be reversed but modified in so far as necessary to cure the defect and then affirmed as modified. People v. Alvarez, 21 P. R. R. 80. A careful examination of the record herein and of the authorities discloses no good reason why this should not be done in the case at bar. Hernández v. State, 131 S. W. 1091; McCorquodale v. State, 98 S. W. 879; Burk v. State, 95 S. W. 1064; Turner v. State, 68 S. W. 511; Burks v. State, 55 S. W. 824; Thomas v. State, 19 S. W. 901.

The judgment of the district court should be modified to read “aggravated assault*’ where it speaks of “aggravated assault and battery,” and, when so modified,

Affirmed.

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