
    The People v. López.
    Appeal from the District Court of Mayagiiez.
    No. 99.
    Decided November 22, 1907.
    Dine — Subsidiary Imprisonment — Judsment.—The mode of compliance with a judgment rendered in a criminal ease should not be left to the election of the accused, and where the judgment condemns him to pay a fine it must specify therein that upon failure to pay the fine the accused will be imprisoned for the period allowed by law.
    The facts are stated in the opinion.
    
      Mr. Rossy, fiscal, for respondent.
    The appellant did not appear.
   Mr. Justice Hernández

delivered the opinion of the court.

This cause originated in the Municipal Court of Maya-giiez by virtue of a complaint filed by Juana Bastel against Virgilio López Agostini charging the latter with having assaulted her by slapping her with great force, and it terminated in a judgment of conviction from which an appeal was taken to the district court, which after holding a new trial found López Agostini guilty of the crime of assault and battery with aggravated circumstances, and consequently sentenced him to pay a fine of $50 or to be confined in jail for one month and to pay the costs, which judgment has come to this Supreme Court on appeal.

.The record does not contain any bill of exceptions or statement of facts, nor has the appellant filed any written brief or made any oral argument in his defense either in person or through counsel.

An examination of the complaint shows that it does not contain any material error.

With regard to the judgment, the adjudging portion thereof is confusing, because it might be deduced from its terms that the defendant is given the option between paying the penalty of a fine and that of imprisonment, while such was not the intention of the trial court. The exercise of this dis-cretional power does not concern the defendant, but the judge.

In order to avoid such a deduction the sentence should be explained in the sense that the appellant is understood to be sentenced as guilty of the crime of assault and battery with aggravated circumstances, to pay a fine of $50, and in default thereof, to be confined in jail for one month, with the costs against him in either case. In this manner the provisions of section 8 of the Act of March 10, 1904, which treats of the matter, in relation with section 322 of the Code of Criminal Procedure, would be properly applied.

See the doctrine already laid down by this court in the following cases: The People of Porto Rico v. Rafael Laviosa, decided October 30, 1907; The People, of Porto Rico v. Manuel M. del Toro, decided November 12, 1907.

For the reasons stated the judgment appealed from should be affirmed with the explanation noted.

Affirmed.

Chief Justice Quiñones and Justices Figueras, MacLeary and Wolf concurred.  