DISSENTING OPINION OP
MR. CHIEF JUSTICE DEL TORO.The defendant was charged with a malicious and criminal assault on the person of Carlos P. Martinez by firing at him several shots with a revolver, that is, the offense specified in section 1 of the Act to define and punish assault, etc., of March 10, 1904 (Comp. 1911, p. 908), which reads as follows:
“Sec. 1. The use of any unlawful violence upon the person of another with intent to injure him, whatever be the means or the degree of violence used, is an assault and battery. Any attempt to commit a battery, or any threatening gesture showing in itself an immediate intention, coupled with an ability to commit a battery, is an assault.”
The defendant pleaded that the complaint did not charge the offense of aggravated assault because it did not allege that the act had been committed with intent to injure'Martinez personally. The prosecuting attorney admitted that the. complaint was defective. The court, however, said:
“The court understands that there must be in every crime the *246intention and the act: the intention is an essential element, but in a case of attempt to commit assault and battery, that is, the offense of assault, the existence of the intention is not necessary.”
The prosecution insisted that the intention should he alleged in the attempt as well as in the assault. Notwithstanding’, the court overruled the exception and the trial proceeded.
In my opinion the view held by the trial court was entirely erroneous, as this was a case of assault in a criminal action, and it is my opinion also that it was that erroneous view that led the court to render the judgment of conviction appealed from by the defendant.
Admitting that for other reasons it may be held that the demurrer was without merit, as the intent to injure Martinez personally could be inferred from the fact imputed to him, namely, having assaulted him by firing at him several limes with a revolver (People v. Montañez, 31 P.R.R. 491), an examination of the evidence leads me to the conclusion that it was only by acting under the erroneous view as stated that the district court could have found the! defendant guilty cf the oiffense charged.
The evidence for the prosecution seems to me indeed suspicious under all of the circumstances, but starting from the basis that the trial judge might have rested his judgment on the testimony of some of the witnesses as to what the defendant said and he denied, the conclusion to be reached is that the defendant, who was a customs officer in Ponce and had good reasons for believing that the car driven by the complainant was carrying contraband, ordered him to halt and as he was not obeyed, he fired at the tires of the car with the intention of forcing him to stop.
Of course, if the defendant had wounded or killed any of the persons who were in the car, he would have been liable for the consequences of his act, but no such thing happened. The consequences were those natural from the intention.
*247As there was not the least evidence that the defendant fired -with the intention of injuring the complainant, or that he had in fact injured him, how can he he convicted of having assaulted him with such intention?
By virtue of the foregoing I can not agree with the opinion of the majority. In my opinion the judgment appealed from should he reversed.