
    People of Porto Rico, Plaintiff and Appellee, v. Eleuterio Rivera, Defendant and Appellant.
    No. 2963.
    Argued December 23, 1926.
    Decided January 28, 1927.
    
      
      José de J. Tizol and Pedro Miranda for the appellant. J osé E. Figueras for the appellee.
   Mr. Justice Franco Soto

delivered the opinion of the court.

This is a case of aggravated assault and battery. The district court sentenced defendant to ninety days in jail.

One of the errors assigned is that the court below did not take into consideration in its judgment of conviction the fact that the defendant did not intend to assault the person injured.

It appears from the evidence that the defendant was taking a refreshment in a certain restaurant when two women came in and were invited by him to take something. They declined the invitation and certain words passed among them which brought about the intervention of the husband of one of the women, and when he asked what was the trouble the defendant threw a glass into the group and wounded the wife on the forehead.

Defendant seems to contend that as it was not his intention to assault the injured woman, but her husband, he is not liable for the different result that ultimately ensued therefrom. However, according to section 51 of the Penal Code, it does not matter that the defendant, on attempting to commit an unsuccessful assault on a husband injured his wife, for him to suffer the penalty imposed by law for the offense committed. Said section 51 reads as follows:

“The last two sections do not protect a person who, attempting unsuccessfully to commit a crime, accomplishes the commission of another and different crime, whether greater or less in guilt, from suffering the punishment prescribed by law for the crime committed.”

Furthermore, it is contended by the appellant that the information failed to allege that he was an adult male, and this ig an essential requisite of the offense charged in the-information. The prosecuting attorney admitted this failure, citing the case of People v. Ortiz, 29 P.R.R. 395, hut alleged' at the same time that where there is failure to show this particular, the case of People v. Peralta, 31 P.R.R. 902, is applicable. In that case, in the absence of such evidence the judgment was modified to convict the accused of simple assault and battery. We are of the same opinion. The-judgment in this case is modified accordingly and defendant sentenced to pay a fine of fifty dollars.

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