People v. Marini

delivered the opinion of the court.

In this case the first error assigned is the failure of the district court to sustain a demurrer to the complaint. The complaint specifically charged -the 'defendant, Vidal Marini, with the crime of assault and 'battery with aggravated circumstances, committed, under the following circumstances, to wit:

That on April 4, 1914, about. 11 p. m. and.on McKinley. Street in the city of - Mayagfiez, judicial district of Maya-gfiez, P. R., the said Vidal Marini voluntarily, maliciously and without just cause and with the intention of causing, great bodily injury to Isaac Irizarry Sasport, assaulted and battered the latter with a stick {palo), inflicting a wound on the right frontal bone and a contusion on the right arm, of which wound and contusion he' was cured at the Emergency Hospital of said city, and that such offense was committed while the people who had attended a performance in the Yagfiez Theatre were emerging therefrom on the night of said date, the defendant giving no heed to the fact that a great number of ladies, girls and old men were likewise' coming out.

The appellant concedes that the complaint charges clearly an assault and battery, but he insists that there was no charge of an aggravated assault- and battery. We have generally held that where a complaint is preferred the same particularity cannot be required'thereof as of an information, but there are exceptions. Where a statute enumerates in plan *12and unequivocal language the facts that would make a simple assault an aggravated one, such facts must be set forth clearly in the complaint. They must not be left to inference. The Act of March 10, 1904 (Session Laws of 1904, page 50), sets out ten separate and distinct cases in which a simple assault becomes aggravated, and to convict a defendant of aggravated assault and battery he must be charged specifically with one of such cases, especially when the penalty is increased from a maximum of $50 in the case of simple assault and battery to a maximum fine of $1,000, or two years in jail, for aggravated assault and battery.

The Government seeks to show that the aggravated circumstances are those set forth in paragraphs 2 and 6 of section 6 of the Act of March 10, 1904. Section 6 and the pertinent paragraph's are as follows:

“Section 6. — An assault and battery becomes aggravated when committed under any of the following circumstances-.

# # # * . # * *

“2. When committed in a court of justice, or in any place of religious worship, or in any place where persons are assembled for the purpose of innocent amusement;

# # * * # ' * «

“6. When the instrument or means used is such as inflicts disgrace upon the person assaulted, as an assault or battery with a whip, cowhide or cane.”

This complaint charges that the offense was committed on the street at a moment when various persons, among them ladies, girls and old men, were coming out of a thea-tre. The crime was not committed in a court of justice, in a place of religious worship, or in any place where persons were assembled for the purpose of innocent amusement. The defendant was not of or in the assembly. The assembly was ■ over and the people were coming away from it. The idea of this 'section, following the principle of noscitur a sociis, was to prevent rough or riotous occurrences in a meeting-place and to punish with greater severity a person who *13disturbed the peace and qniet of such meeting-place or assembly by assaulting or battering another human, being. Section 2 does not apply to each and every concourse of people,in'the street or otherwise, but to a meeting-place, like courts, churches, theatres and the like. If the assault and battery had taken place within the theatre it would have been an aggravated one, but the mere presence of old men, women and children on the street does not create the circumstances of ^aggravation set forth in paragraph 2 of section 6.

When we come to consider paragraph 6 of section 6 of the Act of March 10, 1904, we see that the gravamen of the offense consists in the use of a weapon that inflicts disgrace upon the person assaulted. What the law says to a man is: “While you may carry a cane, a cowhide or a whip, yet you use one on a fellow being with great risk. They are instruments that are used for support or for the punishment of animals and, at one time, of slaves. Their use on another human being is degrading. Hence while you may carry a cane, you must not use it on another human being without adequate provocation.” It follows, naturally, that when the Government wants to allege that a cowhide, whip or cane has been used, it must do so in clear terms.

Now, it may be true, as the Government urges, that the word “palo” (stick) would be used to describe the employment of a bastón, or cane, in popular language, but the question before us in this complaint is, Was the defendant in any way apprised that the circumstance of aggravation in his case was his use of a cane or bastón? The word “palo.,” or “stick,” is the generic one. It may mean a cane, but it also necessarily means a club, a branch of a tree, a baseball bat or other wooden instrument. The idea of paragraph 6, as we have seen, is the use of an insulting weapon. A defendant has the right to know that he is charged with having used a weapon calculated to inflict not only injury but disgrace upon his victim. The law seeks to preserve the peace by heavily penalizing- the assault and battery that attempts *14to disgrace 'a man. The law- likewise protects those innocent of a particular offense. If/ for instance, A is offended by B and seizes the nearest stick he can find and strikes B, if he were charged with having* beaten B with a stick he might be willing to stand trial without witnesses and take the consequences. If B ignorantly or maliciously tries to show that the offense was committed by the usé of a cane,' then A must be given the opportunity of presenting counterproof. If A thought he was merely to be charged with simple assault and he was endeavoring 'to prove threats and provocation by B, he might not call in the persons' who saw the blow inflicted. But if he is charged with having assaulted B with a cane, then he might find it expedient to show by the onlookers that the fact was otherwise, no cane .being used. In this case the defendant was given no notice that he was charged with the use of a weapon specially cálculated to inflict disgrace, because “palo” or “stick” may mean any number of thing’s.

We might, perhaps, have a doubt in this case if the complaint read that the defendant was guilty of an aggravated assault and battery, inasmuch as he hit the prosecuting witness with a stick and produced wounds, and nothing else was included in the complaint. The complaint, however, imperfectly attempts to charge an offense under paragraph 2. In our opinion, the. defendant might very well have supposed that he was charged with the disturbance of a public or quasi-.public assembly. No emphasis is laid on the word “palo” and there are no special words to indicate that the assault inflicted disgrace on the victim. Not only might the defendant think that it was an attempt to -set, out the aggravation in paragraph 2, but he might have a doubt as well whether the aggravation sought to be established was not the one mentioned in paragraph 7 as follows:

“7. When a serious bodily injury is inflicted upon the pérson assaulted. ’ ’

*15The complaint charges that the act was done with the intention of cansing Sasport great bodily injury. The complaint also threw in some ambiguous references to women, girls and children. We refer to these ambiguities because we think the use of them in the complaint made it impossible for a defendant to realize that by the casual use of the word “palo” he was to know that “cane” or “bastón” was meant.

The judgment must be reversed and the case sent back for a new trial and for other. proceedings not inconsistent with this opinion.

Judgment reversed and case remanded for a new trial and for other proceedings not inconsistent with this opinion.