
    The People v. Daniel.
    Appeal from the District Court of San Juan.
    No. 317.
    Decided March 27, 1911.
    Appeal — Contradictory Evidence. — The finding of the lower court in cases of contradictory evidence must he aecejited hy the appellate court, unless it be shown that said court was actuated hy passion, prejudice, or partiality, or that it committed manifest error.
    
      .Sentence in Criminal Causes. — In criminal causes the execution of the sentence must not "be left to the will of the defendant, hut if he is sentenced to pay a fine, imprisonment must he imposed as an alternative penalty in default of payment at the rate of one day for every dollar unpaid.
    The facts are stated in the opinion.
    
      Mr. Manuel F. Bossy for appellant.
    
      Mr. Jesús M. Bossy, fiscal, for respondent.
   Mr. Justice del Toro

delivered the opinion’ of the court.

A complaint was filed against the appellant, Obdulio ^Daniel, by Luis Sanquirico, district chief of the Insular police, charging him with the commission of the following act, constituting the crime of aggravated assault and battery:

“That on September 26, 1910, between 8 and 10 p. m., on Comercio .'Street, in Bayamón, within the municipal judicial district- of Baya-món, which forms part of the judicial district of San Juan, this defendant, while he was being interrogated during an investigation that was being held, unlawfully and wilfully, with intent to cause me injury, assaulted and struck me a blow with his fist.”

A hearing was had and evidence introduced consisting of the testimony of the complainant and that of Detective Valles .for the prosecution, and the testimony of the witnesses, Pérez and Rodríguez, and that of the accused for the defense.

Prom an examination of all the evidence it appears that there is no controversy as to the fact that the police officer, Sanquirico, and the detective, Vallés, went to the defendant’s bakery for the purpose of taking the testimony of the boy, Rosales, who was presumed to have committed the crime of larceny, in regard to the fact that he had given to the defendant, Daniel, $75 of the stolen money; but there.is a dispute as to the acts performed by Daniel, because while the testimony of the witnesses for the prosecution tends to show that Daniel became angry with Sanquirico when the latter stated the facts, and made a motion as if to assault and did assault him by striking him on one of his hands, the testi..mony- of the witnesses for the defense tends to show that although Daniel became very angry he was not angry with the policeman, hut with the boy, Rosales.

The contradiction in the evidence was decided by the trial court — which heard the witnesses testify and had occasion to see and judge them personally — adversely to the defendant, and such decision must not be altered, since it has not been shown that the court in thus deciding had committed manifest error or had been actuated by passion, prejudice, or partiality.

The judgment rendered by the district court condemned Daniel to pay a fine of $50 and costs, or to serve one month in jail. Such an alternative sentence, leaving it optional with the accused to elect the punishment, must be modified to conform with the frequent decisions of this court fixing' the fine as the principal punishment and the imprisonment, as subsidiary thereto — that is to say, one day in jail for each dollar of the fine which the defendant may fail to pay — the total imprisonment not to exceed 30 days.

So modified, the judgment appealed .from .should be affirmed.

jy. Affirmed.

Chief Justice Hernández and Justices MacLeary, Wolf and Aldrey concurred.  