
    The People of Puerto Rico, Plaintiff and Appellee, v. Juan Pablo Serrano, Defendant and Appellant.
    No. 8276.
    Argued July 15, 1940.
    Decided July 26, 1940.
    
      E. Pérez Gasalduc for appellant. R. A. Gómez, Prosecuting Attorney, and Lids Negrón Fernández, Assistant Prosecuting Attorney, for appellee.
   Mr. Justice Hutchison

delivered the opinion of the court.

The complaint charged an aggravated assault alleged to have been committed as follows:

“. . . the said defendant, Juan Pablo Serrano, then and there illegally and maliciously and with the intention of causing bodily injury to the person of the informer, he assaulted him lifting against him a machete, which is a deadly weapon.”

Defendant was convicted, of a breach of the peace.

Section 286 of the Code of Criminal Procedure (1935 ed.) provides that:

“ (Amended by Act No. 22 of March 11, 1913, page 64.) — The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.
“On an information for the crime of mayhem, the jury may find the defendant guilty of the crime of aggravated assault and battery, or of simple assault and battery, provided that at the trial it has been proved that the person assaulted has not been rendered wholly useless, so far a,s concerns any important member of his body.”

See also 27 Am. Jur. 738, sections 193, 194, and Abbot, Criminal Trial Practice, section 454.

Section 368 of the Penal Code (1937 ed.) reads as follows:

“Every person who maliciously and wilfully disturbs the peace or quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct, or threatening, traducing, quarrelling, challenging to fight or fighting, or who on the public streets of any city or village, or upon the public highways fires any gun or pistol, or uses any vulgar, profane or indecent language within the presence or hearing of women or children, in a loud and boisterous manner, is guilty of a misdemeanor, and shall be punished by fine not exceeding two hundred dollars, or by imprisonment in jail for not more than ninety days, or by both fine and imprisonment, at the discretion of the court.”

A breach, of the peace was not “necessarily included” in the offense with which defendant was charged.

The judgment appealed from must be reversed.

Mr. Justice Wolf dissented.

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