
    People, Plaintiff and Appellee, v. Souffront, Defendant and Appellant.
    Appeal from tlie District Court of San Juan in a ■ Prosecution for Assault with Intent to Kill.
    No. 1824.
    Decided February 16, 1922.
    Continuance — Absence of Attorney — Discretion of Court. — It is not an abuse of discretion to refuse a continuance on account of the absence of the defendant’s attorney when no reasonable excuse is given for his absence.
    Evideitoe — Res Gestae. — Evidence showing- that when the defendant was committing the crime of attempt to kill he mortally wounded another person who came to the rescue of the assailed is admissible as a part of the res gestae.
    
    Attempt to Kill — Instructions.—At a trial for attempt to kill the court instructed the jury with regard to that crime, with regard to that of assault ' with intent to kill and with regard to that of aggravated assault and battery. A verdict of "guilty of frustrated manslaughter” was set aside by the court and the instructions were repeated without reference to the crime of aggravated assault and battery. The new verdict was: "Guilty of assault with intent to kill.” Held: That as the original verdict expressed clearly the mind of the jury, failure to instruct them again on aggravated assault and battery does not render the new verdict null and void.
    The facts are stated in the opinion.
    
      Messrs. J. B. Huyke and G. Iriarte, Jr., for the appellant.
    
      Mr. José E. Figiteras, Fiscal, for the appellee.
   Mr. Chief Justice del Toro

delivered the opinion of the court.

Arturo Souffront was charged with the crime of attempt to kill perpetrated on the person of Pedro A. Reinosa. He pleaded not guilty and the case was tried to a jury who found him guilty of the crime of assault with intent to kill. The court sentenced him to imprisonment in the penitentiary at hard labor for two years.

The defendant took the present appeal, but filed no brief. At the hearing on the appeal he appeared by his attorney, who argued the case at length and insisted that the district court should have allowed him a continuance and that the court erred in admitting evidence relating' to another act imputed to the defendant. The attorney did not file a written assignment of the errors alleged, nor a memorandum of the authorities which he may have cited during his argument. This practice is entirely erroneous.

1. We have examined the information and find that it is sufficient. When the case was called for trial the following’ telegram, which had been received on the same day, was read: “Impossible attend trial Souffront today request continuance. Celestino Triarte, Jr., attorney for defendant.” Belying on this telegram, the defendant, represented by attorney Juan B. Huyke, moved the court for a continuance. The district attorney objected and the court sustained his objection on the ground that the motion did not disclose any reasonable excuse for the absence of the attorney. The trial was proceeded with and the defendant was represented by attorney Huyke. The mere statement of these facts justifies the conclusion that the court did not abuse its discretional power in rilling upon the question raised.

“Absence of counsel is an excuse little favored by the courts as a ground for continuance '* * *. Especially * * * where no reasonable excuse for his absence is disclosed.” 13 C. J. 144.

2. The particular act with which the defendant was charged consists in his having assaulted and battered Pedro A. Beinosa with the intent to kill him, inflicting upon him a serious wound in the left lumbar region. Certain witnesses testified that while this act was taking place another person interfered in behalf of Beinosa and then the defendant also stabbed that other person who died as a result of the wounds. The attorney for the defendant objected to the admission of the testimony regarding these facts and the court overruled' his objection, the defendant taking an exception to the ruling of the court. At the hearing on this appeal the defendant insisted, without citing any applicable law or jurisprudence, if we remember correctly, that the court had erred in ruling as it did.

The stabbing of the other person was a distinct act, but it was so closely connected with the act charged in this case that it could well be considered as a part of the res gestae. See 22 C. J. 443, 454 et. seq. The other person came to the rescue of Reinosa. According to Reinosa’s version of the facts, when he yelled the other person interfered and said: “Do not hurt the old man, the old man Reinosa,” and then it seems.that the defendant stabbed the other man, saying; “You are young, take it yourself.” Souffront was charged' with assault and battery with intent to kill and it was proper to prove all of the pertinent circumstances surrounding the act in order to comprehend more certainly the mental condition of the defendant.

3. A motion was made for a new trial on the grounds that the verdict was contrary to the evidence, that the court erred in instructing the jury and that the defendant was compelled to go to trial defenseless.

The evidence is contradictory. One of the witnesses for the defense said that Reinosa was wounded by another person, naming him. Reinosa said that the defendant wounded him. With regard to other important particulars the contradiction was manifest, but as the jury adjusted the conflict against the defendant and it not having been shown that they were influenced by passion, prejudice or partiality, or committed manifest error, their verdict should not be disturbed, as we have held repeatedly.

The court instructed the jury fully and explained that they could find the defendant guilty of an attempt to kill, or of assault with the intent to kill, or of aggravated assault and battery. The jury brought in a verdict of “guilty of frustrated homicide.” The district attorney considered the verdict erroneous and moved the court to give new instructions to the jury. The defense objected to this. In accordance with section 288 of the Code of Criminal Procedure, the court instructed the jury that its verdict was erroneous and referred again to the crimes of attempt to kill and as-saisilt with ~tIie intents to kill, dmitting~ furth~r: ~eference to the erime of~ ~s~ult `and battery~ The jury went back for eohsulta~tion acid t}~ereafte~ `bi~ought~ in a~.~rdic~t of guilty of ass'ai~lt w~thinteiib tekill. `~ .1

The court ~ôte,d dorreotly. The jiiry~ could not have beeii led i~o eri~or. Thd first'~e~dict~liad~ ah~ady;expressed their rnind~;c1early. J~he error~w~s'merely O11è o~ woi~ding. lJn-der: such circums lices' it kv~s not ne~essary to :insist ~n the insiruetion"rdgardii~ assault, .and battery."

iAs th drefenselessness of the ;defénda~t3dw~ ha1ve already sthd~ ~h:at ~the niotibri for a. eontinua~ee ~was not dft~iy n~a~e, and we now add that the record sho~s~ ~bla~t th~ defsnd~t was properl~ defcended by attorney HuyJ~e who not,~only cross-examiued~the~government~ witnesses ~adtoel~ si~ch~excep:~ tions as he deemed~po~ti~nent, ~bt~t ~also iint~o~c~d~ all o~ the~ evidence for the defense. ~` ; 1,~ , `

The appealed ~

Affirmed.

Justices Aldrey and Hutchison concurred.

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