
    People, Plaintiff and Appellee, v. Toro et al., Defendants and Appellants.
    Appeal from the District Court of Ponce in a Prosecution for Aggravated Assault and Battery.
    No. 1205.
    Decided December 18, 1917.
    Assault and Battery — Trespasser—Force Necessary to Eject. — Conceiving \ the idea that a number of young men were bandits on an improper errand and that it was their duty to dislodge them, the defendants in this case, without first adequately assuring themselves of the nature of the occupation of the supposed intruders, set upon them;.in a shooting and cutting affray and seriously injured one of them. Held: That the defendants were not justified in using undue force and that they did so without having a legal excuse, and, therefore, were guilty of aggravated assault and battery.
    The facts are stated in the opinion.
    
      Mr. José de Jesús Tizol for thé appellants.
    
      Mr. Salvador Mestre, fiscal, for the appellee.
   Mb: Justice "Wole

delivered the opinion of the court.

A number of young men, mostly from Ponce, started out from that city on a fishing trip to Gnayanilla. At that place they obtained the use of the house of a friend. Some of the men took to a boat on the water-and others slept on the balcony of the house, awaiting the morning to indulge in their sport. The defendants and others, honest people living in the neighborhood and having their work there, conceived the idea that the group of fishermen was a set 'of bandits ou some improper errand and that it was the duty of the defendants to dislodge them. But they went about it in the vrong way. They did not first adequately assure themselves of the nature of the occupation of the supposed'intruders, but set upon them in a- shooting and cutting affray, where at least one of the prosecuting witnesses was seriously injured and barely escaped something worse. The defendant said that they called out and received no answer and the only defence in this case is that they were actuated by good motives and had no criminal intent. ’

The information'set up assault and battery with intent to murder. The case was submitted to a jury under very careful instructions by tbe court and tbe jury showed that they considered the question of intent by finding the defendants guilty of assault and battery with aggravated circumstances. By. fining the principal offender $300 with an alternative jail sentence and the others $100 with a comparative jail sentence, the court also took the motive into view.

People v. Kilvington, 104 Cal. 86, 37 Pac. 799, was the case of a policeman shooting at a supposed felon and it is there laid down that the right of a peace officer in making an arrest to shoot at a man is a question of fact for the jury. This is always true where there is some apparent legal justification for the person who is making the arrest in shooting at alleged offenders. In this case, however, although there was a jury trial there was nothing in the evidence to justify the violent attacks of the defendants. No one has a right to kill or wound a mere trespasser unless at least it be shown that some force was necessary to eject him. 5 C. J. 743 et seq.; 21 Cyc. 792; 21 Cyc. 972. The arrest of a person is an analogy of the law closest to the acts of the defendants in this case, but there the person making the arrest is not justified in using undue force. 5 C. J. 424 et seq. More or less directly, we have applied these principles in the cases of People v. Cruz, 25 P. R. R. 302, and People v. Figueroa, 16 P. R. R. 354. In the former case a policeman shot a boy who was fleeing and the court said that the intent to shoot and hit was there, no matter what the motive of a particular individual. Very often we have said, as have all the courts, that the intention will be presumed in certain illegal acts. The defendants here attacked without a legal excuse and the possible consequences of such acts are serious indeed.

The judgment must be

Affirmed.

Justices del Toro and Hutchison concurred.

Chief Justice Hernandez and Justice Aldrey absent.  