THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. SIXTO BALMES, DEFENDANT AND APPELLANT.

The defendant and appellant was convicted in the court below of
atentado, and sentenced to two years, four months, and one day of
prision correctional and to pay a fine of 625 pesetas, under the
provisions of the first paragraph of article 250 of the Penal Code. The penalty
was placed under this paragraph upon a finding that the accused assaulted a
policeman with an oar. It appears that the policeman who was endeavoring to
arrest suspected violators of an ordinance relating to the municipal fisheries,
stepped over into the boat of an uncle of the accused to count the fish in the
bottom of the boat, and that the accused stepped into the boat at or about the
same time, evidently with the intention of opposing the action of the policeman
in coming on board his uncle’s boat. Words passed between them, and in the
darkness and confusion of the moment the boat was upset, and both parties were
compelled to struggle ashore as best they could. Some of the witnesses for the
prosecution insist that the accused tried to strike the policeman with his oar,
and that the boat was upset in the struggle for possession of the oar. The
incident occurred at night, the evidence as to exactly what did occur is
conflicting and unsatisfactory. We do not think the evidence supports a finding
beyond a reasonable doubt that the accused made any attempt to use the oar as a
weapon of defense, though it well may be that in trying to balance themselves in
the small boat, both parties tried to get hold of it. We are satisfied, however,
that the accused resisted the policeman in the performance of his duty. We think
that the offense proved to have been committed is that penalized in the last
paragraph of article 250 of the Penal Code.

We do not find that the force used against the policeman was such as is
contemplated in subsections 1, 2, 3, or 4 of article 250, under the rule
announced in the case of U. S. vs. Tabiana and Canillas (p. 515,
post) recently decided.

We conclude, therefore, that the penalty imposed by the trial judge should be
modified by substituting one year, eight months, and twenty-one days of
prision correccional and a fine of 375 pesetas, with
subsidiary imprisonment as prescribed by law, for so much thereof as imposes two
years, four months, and one day of prision correccional and to pay a
fine of 625 pesetas, and that thus modified, the judgment should be
affirmed, with the costs of this instance against the appellant. So ordered.

Arellano, C. J., Johnson, Araullo, Street, and Malcolm,
JJ., concur.