
    People, Plaintiff and Appellee, v. Cartagena, Defendant and Appellant.
    Appeal from the District Court of San Juan in a Prosecution for Assault and Battery.
    No. 1625.
    Decided December 23, 1920.
    Assault and Battery. — It having been alleged in the complaint that the battery was made “with an iron cane” and proved at the trial that in the commission of the offense the defendant used an iron rod which the trial judge held to be a cane, in the absence of evidence that such holding was erroneous it is necessary to conclude that a judgment convicting the defendant of aggravated assault and battery was supported by the pleadings and the evidence.
    The facts are stated in the opinion.
    
      Messrs. A. Trujillo Güil and G. Iriarte for the appellant.
    
      Mr. José E. Figueras, Fiscal, for the appellee.
   Mr. Chief Justice Hernández

delivered the opinion of the court.

The pertinent part of the complaint in this case is as follows:

“That at about 8:30 a. m. on January 20, 1919, and on San Francisco Street in front of the Blanco drug-store, in the municipal judicial district of San Juan, P. B., the said defendant wilfully and maliciously and with the intent to inflict grave bodily injury upon Andrés Rodríguez Yera, assaulted and struck him with an iron cane on several parts of his body and caused him various contusions

On March 10, 1919, the case was tried in the District Conrt of San Juan, Section 2, and on the evidence the court, by a judgment of March 31st, found the defendant guilty of the crime charged and sentenced him to imprisonment for one year, less the time of his provisional imprisonment, with the costs.

The defendant appealed to this court and alleged that the acts stated in the complaint do not constitute the crime of aggravated assault and battery, for it was not alleged nor proved that the cane used by the defendant was a deadly weapon, or that it inflicted disgrace upon the assailed, or that grave, injury was inflicted upon him, for which reasons he prays that the judgment be reversed and the offense be classified as simple assault and battery.

The complaint shows on its face that the acts with which the defendant was charged constitute the crime of aggravated assault and battery under subdivision 6 of section 6 of the Act of March 10, 1904, inasmuch as a cane was used and thus disgrace was inflicted upon the person assaulted. Under this theory we must conclude from the evidence that in committing the assault and battery the defendant made use of a rod which the trial judge saw and held to be a cane, and as the appellant has shown no error in this ruling, the judgment conforms to the complaint as well as to the weight of the evidence.

As the complaint was not made under the theory that a deadly weapon was used or that grave injury was inflicted upon the person assaulted, but under the theory that the weapon used was a cane, it is unnecessary to consider whether or not the cane used was a deadly weapon or whether the wounds were serious.

The judgment appealed from must be

Affirmed.

Justices Wolf, del Toro, Aldrey and Hutchison concurred.  