
    People, Plaintiff and Appellee, v. Soto, Defendant and Appellant.
    Appeal from the District Court of Aguadilla in a Prosecution for Breach of Peace.
    No. 1431.
    Decided December 16, 1919.
    Disturbance of the Peace — -Evidence.—When a complaint charges a disturbance of the peace of a certain person or persons, if the evidence does not show that such persons were present when the acts charged in the complaint were committed, the court errs in finding the defendant guilty of a disturbance of the peace, although the acts committed by him and not charged in the complaint may constitute a disturbance of the peace.
    Id. — Td.—When the defendant is not charged with the offence of having offended the ears of women and children with obscene or tumultuous language, it is error on the part of the court to permit the witnesses to bo asked whether women and children were present.
    The facts are stated in the opinion.
    
      Mr. Buenaventura Esteves for the appellant.
    
      Mr. José E. Figueras, Fiscal, for the appellee.
   Me. Justice Wolf

delivered the opinion of the court.

The complaint in this case charged Simeón Soto with a disturbance of the public peace by having -upon a speaker's box and in presence of the public who heard him, threatened Valentín Núñez, alias Pinclie, or Ms intimates who might have been present, calling him a shameless one. (sin ver-güenza, a Amigar offensive epithet), threatening homicidal attacks on said Pinche and on the persons who decided to work in opposition to the purposes of the strike which the orator was supporting.

The evidence fails to show that Núñez was present. Indeed, the contrary may be readily inferred. We deduce from the proof that neither Núñez nor any other strike breaker was present and hence the peace of none of them Avas disturbed. Perhaps the public was stirred. There was some incitation to crime in the form of the words. The complaint, however, by every fair intendment, if it meant anything’, set np a disturbance of the peace of Valentin Núñez or his intimates, and there is absolutely no proof of such disturbance. To find the defendant guilty of the charge in the complaint was error.

It was also error to permit the witnesses to be asked if women and children were present, as the defendant was not charged with the offense of haAdng offended the ears of women and children with obscene or tumultuous language, the special offense set out in section 368 of the Penal Code.

MoreoA’or, it does not seem that the police themselves thought he had committed much of an offense, as they tol-ei*ated it after interrupting him and only warned him not to continue. The arrest appears to have been an afterthought. There was nothing to show that the language actually produced a breach of the peace, although it might have been so interpreted with a slightly different complaint and perhaps slight additional facts.

The judgment must be reAmrsed and the defendant discharged.

Reversed.

Chief Justice Hernández and Justices del Toro and Ai-drey concurred.

Mr. Justice Hutchison took no part in the decision of this case.  