
    People of Porto Rico, Plaintiff and Appellee, v. Juan Barreto, Defendant and Appellant.
    No. 3662.
    Argued January 18, 1929.
    Decided January 22, 1929.
    
      V. Alvarado Olmedo and J. Veray Jr. for the appellant. José E. Figueras for the appellee.
   Mr. Justice Texidor

delivered the opinion of the conrt.

This case was brought np from the District Conrt of Aguadilla by which it had been decided on appeal from the municipal conrt.

Jnan Barreto was charged with aggravated assault and battery in that wilfully and maliciously he had inflicted with a small machete wounds in the back and shoulder of Francisco Rivera. After trial the District Court of Aguadilla convicted Barreto of aggravated assault, and battery and sentenced him to one month and twenty days in jail, with the costs. The appeal before ns was taken from that judgment of May 2, 1928.

Four errors are assigned by the appellant, as follows:

“J. Tbe district court committed manifest error in allowing tbe admission in evidence against the defendant of tbe affidaAit of Daniel Roto taken by the municipal judge of Aguadilla.
“IT. The district court erred in not taking into account the theory of self-defense within the home raised by the defendant.
“III. The judgment rendered by the trial court against the accused is contiary to the evidence.
“IV. The district court erred in not' taking into consideration tbe evidence voluntarily suppressed by tbe prosecution.”

We find no merit in the first assignment. During the examination of Daniel Soto, whose testimony is in conflict with all of the evidence and, in our opinion, with the truth, the district attorney undertook to refresh his memory by reminding him of other testimony which he had given on another occasion before the municipal judge of Aguadilla, hut did not offer in evidence that former testimony. The defense took no exception to that cross-examination. Besides, the testimony of Daniel Soto has not the importance attributed to it, or any importance whatever. The district judge did not believe it and acted on it wisely and with judicial consideration.

As regards the second assignment to the effect that the court erred in not taking into account the theory of -self-defense, we find from the evidence that Francisco Rivera went to the home of Leonardo Montalvo where appellant Juan Barreto was a servant or employee and was in bed at that time; that some jokes passed between Barreto and Rivera and the result was a dispute; that Rivera and Barreto insulted each other and Rivera challenged Barreto to go out on the road with him and fight; that Barreto went after taking up a small machete with which he wounded his adversary in the shoulder and back. That is, there was a fight accepted by the defendant. Under these circumstances it is not easy to maintain the theory of self-defense. Self-defense is justified only when the one who is defending himself is not wholly or in part the cause and origin of the attack, and when he who has to defend himself acts in compliance with the law. Any person who goes out to fight with another and goes armed with an instrument with which death can be inflicted is not in a position to-plead afterwards that he was under the necessity of defending himself against an unexpected assault. Moreover, although it was sought to show by the evidence that Rivera had struck the appellant with a bottle, the district judge did not give credit to such testimony, nor could anyone who considers it dispassionately.

Nothing is alleged by the appellant tending to show that the trial court weighed the evidence erroneously ór under the influence of passion, prejudice or partiality.

In the fourth assignment, that the court erred in not considering the evidence wilfully suppressed by the district attorney, it seems that the appellant has gone too far. The evidence for the prosecution was complete when the case was closed. It was not necessary to call another witness or there was no desire to do so. In that situation, with his ease complete, the district attorney’s waiver of his right to call more witnesses was not a suppression of evidence.

We find no ground for sustaining the assignments made under numbers three and four.

The judgment will be affirmed.  