People v. Trinidad

24 P.R. 826

• Court: Supreme Court of Puerto Rico
• Decided: March 7, 1917
• Docket: No. 1125
• Status: Published

Opinion

Mr. Justice HutchisoN

delivered the opinion of the court.

On a trial de novo in the district court appellant was convicted of aggravated assault and battery under a complaint charging aggravated assault only.

We quite agree with appellant' as to the only point raised in his brief, to wit, that the district court erred in convicting him of aggravated assault and battery under a complaint that charges no battery, and that the judgment as rendered below cannot stand; but we have heretofore held that, when the record contains sufficient data to enable this court to do what the district court might have done and presumably would have done had the matter been called to its attention, or what it might do and unquestionably would do were the ease remanded, the judgment appealed from should not be reversed but modified in so far as necessary to cure the defect and then affirmed as modified. People v. Alvarez, 21 P. R. R. 80. A careful examination of the record herein and of the authorities discloses no good reason why this should not be done in the case at bar. Hernández v. State, 131 S. W. 1091; McCorquodale v. State, 98 S. W. 879; Burk v. State, 95 S. W. 1064; Turner v. State, 68 S. W. 511; Burks v. State, 55 S. W. 824; Thomas v. State, 19 S. W. 901.

The judgment of the district court should be modified to read “aggravated assault*’ where it speaks of “aggravated assault and battery,” and, when so modified,

Affirmed.

Chief Justice Hernández and Justices Wolf, del Toro and Aldrey concurred.