
    People of Porto Rico, Plaintiff and Appellee, v. Juan Acevedo, Defendant and Appellant.
    No. 3446.
    Argued March 16, 1928.
    Decided May 31, 1928.
    
      
      Garcia Méndez & Garcia Méndez for the appellant. José E. Figue-ras for the apnehoe.
   Mr. Justice Wole

delivered the opinion of the court.

The defendant was convicted of an aggravated assault and battery and on appeal assigns two errors, first that the complaint does not set forth a crime, and second that there was not sufficient evidence to convict.

The burden of the first assignment is that the complaint does not show an aggravated assault and battery, inasmuch as the defendant was only charged with having attacked with a knife (cuchillo) and that a knife is not necessarily a deadly weapon. The use of a deadly weapon is the only fact which in this case could make the assault and battery an aggravated one. Nevertheless, it is clear that a simple assault and battery is charged and therefore the complaint was' not subject to a demurrer or its equivalent.

Furthermore, we have decided in People v. Albino, 17 P.R.R. 456, that in a complaint for aggravated assault and battery it was not necessary to allege that the weapon was a deadly one, as the determination of this fact could be left to the trial judge.

The appellant refers to the evidence in discussing the first assignment, but it is settled law that the evidence may not be resorted to in aid of the defense that the complaint did not charge a crime.

With respect to the second error there was a conflict in the evidence. Analyzing, it was perfectly clear that the defendant attacked the prosecuting witness with a knife. Furthermore, the court had a right to believe that either the defendant struck the first blow or that there was a mutual combat. The defendant admits he had a knife. The prosecuting witness says that while he struck the defendant with a barrel hoop or rim (chorrera) he only did so after the defendant had struck him with a stick. Each of the parties to this conflict blames the other and the court decided the evidence in favor of the prosecuting witness. There was a struggle in a courtyard to which, as the court had a right to believe, both persons descended of their own volition. No one saw what took place between the prosecuting witness and the defendant until they were found struggling on the ground and the prosecuting witness arose with a knife wound which did not turn out to be serious.

On the other hand, the evidence did not show an aggravated case. The knife used was a small one, such as a carpenter or other workmen might use for light work. It was not essentially a dangerous weapon and the evidence was perfectly consistent with an innocent possession of the knife by the defendant. Therefore, the evidence did not show an aggravated assault and battery.

The judgment should be modified to impbse a fine of $30 and in defect of payment to undergo a day in jail for each dollar that is not paid, and as modified affirmed.  