62 F. 972 | N.D. Cal. | 1894
These matters are before me, sitting as a committing magistrate, to determine upon the application of the republic of Salvador for the extradition, under its treaty with the United States, of Antonio Ezeta, Leon Bolanos, Jacinto Colocho, Juan Cienfuegos, and Florencio Bustamante, for trial in Salvador upon five charges; three being for murder, one for attempt to murder, and- one for, robbery. Upon the hearing it was claimed by the refugees — First, that there was not sufficient evidence amounting to probable cause to justify the holding of the accused; and, second, that all the offenses charged, with the exception of the charge of attempt to murder made against Juan Cienfuegos, assuming that probable cause existed, were political acts, and for that reason not extraditable, by the terms of the treaty.
The constitution of the republic of Salvador provides that the president and vice president shall be elected for a term of four years. Gen. Francisco Menendez was the president, and Dr. Rafael
A knowledge of what has just been stated, pertaining to the recent history of Salvador, drawn from public reports, appears to be necessary, however, to a clear understanding of the facts involved in the charges made against the defendants. On the 29th day of April, 1894, a revolution against the Ezeta government broke out in the military garrison at Santa Ana, a city in the western part of the republic, and distant about 60 miles from the capital. The revolution appears to have involved at first only a regular battalion of 500 men, stationed at that place, but it soon spread to other departments of the republic. Gen. Antonio Ezeta, the commander in chief, was stationed at this time at Santa Ana, as was also Gen. Jacinto Colocho, the commander of the garrison. After an unsuccessful attempt to recover the garrison, these officers, with a few men, retreated to Coatepeque, a place about 12 miles nearer the capital, where a force was gathered, and from which point operations were directed against the revolutionary forces. In an engage*
The authority for the. present examination is derived from the statrites of the United States, the treaty between the United States of America and the republic of Salvador, and a mandate issued by the department of state under date of August: 11,1894, which recite,» that an application had been made in due form, to the proper authorities for the arrest of Antonio Ezeta, Leon Bolanos, Jacinto Colocho, Juan Cienfnogos, and Florencio Bustamante, charged wilh the crimes of murder, robbery, and arson. The certificate further recites that it was alleged that (he parlies named were fugitives from the justice of Salvador, and were believed to be within the jurisdiction of the United Stales; that it was proper they should he apprehended, and the case examined in the mode provided by the laws of the United States: _ (hat those facts were certified to the end that the evidence of the criminality of the accused might be heard and considered, and, if deemed sufficient to sustain the charges, the same might be certified, together with a copy of all the proceedings, to the secretary of state, that a warrant might
Section 5270 of the Revised Statutes of the United States, relating to extradition, provides that:
“If, on such heáring, he [the committing magistrate] deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same,” etc.
This section had its origin in section one of the act of August 12, 1848 (9 Stat. at Large, 302). The treaty under consideration was ratified in 1874, and provides that fugitives from justice shallbe delivered up only “upon such evidence of criminality as according to the laws of the place where the fugitive or person so charged shall be found would justify his or her apprehension and commitment for trial if the crime had 'been there committed.” Section 1014 of the Revised Statutes of the United States, relating to the arrest of offenders charged with any crime or offense against the United States, provides that they may be arrested and imprisoned, or bailed, “agreeable to the usual mode of process against offenders in such state.”
“If, after hearing the proofs, it appears either that no public offense has been committed, or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate must order the defendant to be discharged, ⅝ * *
Section 872 provides:
“If, however, it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, the magistrate must make or endorse on the deposition an order, signed by him, to the following effect: It appearing to me that the offense in the within depositions mentioned (or any offense according to the facts, stating generally the nature thereof) has been committed, and that there is sufficient cause to believe the within-named A. B. guilty thereof, I order that he be held to answer to the same,” etc.
■ The degree of proof that will enable the committing magistrate to determine that there is sufficient cause to believe the defendant guilty of a public offense has been discussed by eminent judicial authority. Chief Justice Marshall, sitting as a committing magistrate in the Aaron Burr Case (1 Burr’s Trial, 11), stated a rule which has been followed in this country. He said:
“On an application of this kind, I certainly should not require that proof which would be necessary to convict the person to be committed, on a trial in chief, nor should I even require that which should absolutely convince my own mind of the guilt of ilie accused. But I ought to require, and I should require, that probable cause be. shown; and I understand probable cause to be a case made out by proof, furnishing good reason to believe that the crime alleged has been committed by the person charged with having commuted it.”
Mr. Justice Washington, in defining the expression "probable cause,” said it was "a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.” Munns v. Dupont, 3 Wash. C. C. 31, Fed. Cas. No. 9,926.
Judge Blatchford, in the Case of Farez, 7 Blatchf. 345, Fed. Cas. No. 4,645, fully confirms (his view of the law as to the evidence of criminality required in an extradition case, in the following language:
“To say that the evidence must be such as to require the conviction of the prisoner if lie were on . trial before a petit jury would, if applied to cases of extradition, bo likely to work great injustice. The theory on which treaties for extradition are made is that the place where a crime was committed is the proper place in which to try the person charged with having committed it; and nothing is required, to warrant extradition, except that sufficient evidence of the fact of the commission of the crime shall be produced to justify a commitment for trial for the crime. In acting under the thirty-third section of the judiciary act of 1789 (section 1014, Bev. St.) in regard to offenses against the United States, a committing magistrate acts on the principle that, in substance, after an examination into the matter, and a proper opportunity for the giving of testimony on both sides, there is reasonable ground to hold*982 the accused for trial. The contrary view would lead to the couclusion that the accused should not be given up to be tried in the country in which the offense was committed, — the country where the witnesses on both sides are presumptively to be found, — but should be tried in the country in which he may happen to be found. Such a result would entirely destroy the object of such treaties.”
To the same 'effect is the doctrine declared in Re Wadge, 15 Fed. 864, 16 Fed. 332; in Re Macdonnell, 11 Blatchf. 170, Fed. Cas. No. 8,772; in Re Behrendt, 22 Fed. 699.
In the case of Benson v. McMahon, 127 U. S. 462, 8 Sup. Ct. 1240, Mr. Justice Miller, delivering the opinion of the court in that case, said:
. “The subject of what proof shall be required for the delivery upon requisition of parties charged with crime is considered in article 1 of the treaty [with Mexico], in regard to which it is provided ‘that this shall be done only when the fact of the commission of the crime shall be so established as that the laws of the country in which the fugitive' or the person so accused shall be found would justify his or her apprehension and commitment for trial if the crime had been there committed.’ Taking this provision, of the treaty, and that of the Revised Statutes above recited, we are of the opinion that the proceeding before the commissioner is not to be regarded as in the nature of a final trial by which the prisoner could be convicted or acquitted of the crime charged against him, but rather of the character of those preliminary examinations which take place every day in this country before an examining or committing magistrate for the purpose of determining whether a case is made out which will justify the holding of the accused, either by imprisonment or under bail, to ultimately answer to an indictment, or other proceeding, in which he shall be finally tried upon the charge made against him.”
In the examination, therefore, of persons charged with being fugitives from justice under a treaty stipulation such as we find in the present case, the evidence of criminality must conform to, and be weighed and judged by, the laws of this country, and particularly the laws of the place where the accused is found. The evidence of criminality, to justify holding the accused for the action of the executive upon surrender, need not be such as would be required at the trial of the accused, but must be such evidence as ordinarily obtains at a preliminary examination, and amount to probable cause of his guilt; probable cause being such evidence of guilt as would furnish good reason to a cautious man, and warrant him in the belief, that the person accused is guilty of the offense with which he is charged.
The first charge, in point of time, is that against Juan Cienfuegos, alias La Chucha. He is accused with -attempting to murder one. Andres Amaya on. the 3d of January, 1894, at the city of San Salvador, in front of the house used by the said Amáya as his residence. The depositions introduced on the part of the republic of Salvador contain the statement of Andres Amaya, the party aggrieved; the testimony of Thomas Quijano, a police officer who arrested Cien-fuegos; and a statement by Cienfuegos himself. The deposition of Quijano and the depositions, so called, of Amaya and Cienfuegos,, were all taken on the 4th day of January, 1894, the day following the alleged attempt to murder. The statement of Andres Amaya
Upon this evidence of criminality, the record shows that an order was made by the court So. 1 of first instance, at San Salvador, on the 5th day of January, 1894, that the suspected party, Don Juan Cienfuegos, should remain in temporary custody, there being sufficient cause therefor, and that the record of the proceedings should be submitted to the alcalde. Nothing further appeal’s, from the depositions and record, relative to what other proceedings, if any, were taken against the accused, except that on June 22, 1894, an order was made by the court No. 1 of first instance that letters rogatory should issue to the commander of the Bennington for the surrender of Jhan Cienfuegos for the alleged attempt to murder Andres Amaya. The accused, in his testimony before me, testified to substantially the same facts as are contained in the statement made by him upon his arrest. He admits that he shot at Don Andres Amaya at the time and place stated, and while he was in company with Manuel Casin, but he justifies himself by swearing that he shot only after Amaya had opened fire on them; and that when he did shoot he did so to defend and protect the, life of Manuel Casin, whose person he had been detailed to guard by the order of his chief officer, Gen. Antonio Ezeta; that his orders were to dress in citizen’s clothes, and to place himself at the order of Manuel Casin, and that he should defend him at all hazards, and, before he should allow him to be killed, that he should first allow himself to be killed. He further testified that he was taken, upon his arrest, to the police station, and was there asked to make a statement, which he did; that soon afterwards Gen. Antonio Ezeta arrived at the station, and procured his release; that an hour after that he was rearrested by order of President Carlos Ezeta; that he was put in a place where the flags are kept at the police station; that he remained there for three days, and was then released by instructions conveyed by the chief of staff from President Carlos Ezeta; that since that release he has never been rearrested for the same charge. He also testified that he knew Amaya by sight, but had never talked with him.
A technical objection is made to the depositions of Amaya and Cienfuegos. It is urged that they are but mere statements, and not depositions, and that, not being depositions, whatever they contain is not evidence against the accused. This contention is based upon the recitals as to the imposition of an oath to tell the truth, contained in the introductory part of the depositions. It appears that in all of the depositions where a witness, not a party interested, is sworn, the following recital occurs as to the administration of the oath, varying somewhat in phraseology:
“There being present the witness-, to whom I read the penalties incurred by those who testify falsely in criminal proceedings, and, upon being sworn in legal form, he promised to tell the truth, he stated,” etc.
“A man who felt aggrieved appeared, and I instructed him as to his obligation to tell the truth, upon being interrogated by competent authorities, and he promised to do so, declaring,” etc.
That of CSenfuegos reads:
“There being present a man mentioned in this proceeding, to whom I impose the obligation of tolling the truth, upon being interrogated by competent authority, and he promised to do so, saying,” etc.
A perusal of all the depositions introduced discloses the fact that it does not distinctly appear that the complainant or party aggrieved takes an oath in the same form as that of a witness. But in other respects the depositions are similar, and the conclusion in all of them is substantially the same. In every one the declarant appears to have been interrogated, and it is significant that the proceeding is called a deposition at the conclusion. Section 5 of the act of August 3, 1882 (22 Stat. at Large, 216), provides:
“That in all cases where any depositions, warrants, or other papers or copies thereof shall be offered in evidence upon the hearing of any extradition case under title sixty-six of the. Revised Statutes of the United States, such depositions, warrants, and other papers, or the copies thereof, shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular oflicer of the United States resident in such foreign country shall be proof that any deposition, warrant or other paper or copies thereof, so offered, are authenticated in the manner required by this act.”
It appears by the stipulation filed by counsel in these cases that all the depositions and other papers offered in evidence on the part of the republic of Salvador are so certified. This certificate covers the statement or deposition of Andres Amaya, and under the statute it must he received and admitted as evidence for all the purposes of the hearing. While the depositions were being read, objections were offered to certain portions of the testimony of some of the witnesses on the ground that the evidence was either incompetent, irrelevant, or immaterial, as, for instance, that the testimony was clearly hearsay. I sustained objections of this character, and on motion the testimony was struck out; but, doubting the propriety of this ruling, I afterwards suggested that a motion to strike out was unnecessary, as I would disregard testimony deemed inadmissible under the rules of evidence prevailing in this country. This ruling was not intended, however, to go any further than to indicate the rules of evidence applicable to the substance of the testimony. The form of the depositions or other papers is clearly covered by the certificate under the act of congress. But the statement of Andres Amaya, if deemed defective in failing to show that the deponent, had been sworn to tell the truth, is not of itself essential to establish the charge against Cienfuegos. The deposition of the police officer, Thomas Quijano, which is admittedly free from the alleged defect, serves, in my opinion, to establish, at
As tbe act was committed some four months before tbe revolution began, it is free from any political aspect, so far as tbe act charged itself is concerned; and tbe only question to be determined is whether tbe evidence of criminality amounts to probable cause of tbe guilt of tbe accused. As stated above, tbe admission of the accused, both as it is contained in tbe record and as made at tbe bearing, that be shot at Amaya, removes any doubt upon this question. It appears to me that, even in tbe absence of tbe admissions of tbe accused, tbe evidence of criminality presented is sufficient to amount to probable cause. His justification — that be was merely acting in obedience to tbe orders of bis superior officers in protecting tbe life of Casin — cannot here be considered. What that defense would amount to upon tbe trial of tbe case in Salvador cannot now be determined, nor-is it necessary. Tbe fact that be fired tbe shots in defense of himself and Casin is obviously a matter of defense, to be presented in tbe tribunals of tbe republic of Salvador upon a full bearing of tbe case, where all tbe witnesses of tbe afiiair may be secured. Tbe testimony for tbe prosecution establishes tbe fact that tbe act charged was in fact committed. And as this evidence amounts to probable cause, tbe inquiry need go no further on this preliminary examination, unless there is some explanation to be made which does not contradict or impugn tbe testimony on tbe part of tbe prosecution, but serves to explain it so as to show that tbe consequence otherwise deducible does not follow. This I understand to be tbe law declared in U. S. v. White, 2 Wash. C. C. 29, Fed. Cas. No. 16,685; and in Catlow’s Case, 16 Op. Attys. Gen. 642; 1 Moore, Extrad. p. 528.
Counsel for tbe defendant contends that as Cienfuegos was released by order of bis superior officers, and has never been prosecuted, or any steps taken against him, for the part be took in tbe alleged attempt to murder Andres Amaya, until after be bad taken refuge on board tbe Bennington, this revival - of the prosecution is nothing more or less than an effort on tbe part of tbe present government of Salvador to secure tbe person of tbe accused for the purpose of wreaking their vengeance on him for tbe part be took against them in tbe late war. This argument is not, perhaps, destitute of force, but it is not a matter of. which I can properly take cognizance, in view of tbe other features of this particular case.He w.as not tried for tbe offense, nor was be pardoned, but, being discharged from prison by order of President Don Carlos Ezeta, be appears to have enjoyed a privilege conferred by executive authority equivalent to an order entered only by judicial authority in this country, permitting the accused to he discharged from custody on bis own recognizance. If this'is a correct interpretation of tbe proceedings stated in tbe record, then Col. Cienfuegos has continued subject to arrest and trial upon this charge. If, as is claimed, be is being extradited for a political purpose, that is a matter which can very properly be called to tbe attention of tbe executive when be comes to review my action.
¡The third'charge is that against all of the fugitives, viz. Antonio Ezeta, Leon Bolanos, Jacinto Colocho, Juan Cienfuegos, and Floren-cio Bustamante, for the murder of one Casimiro Henriquez, on June 3, 1894, at the plaza of the village of Coatepeque. Jacinto Colocho having been discharged for want of sufficient evidence to connect him with this offense, his relation to the case will not be further considered.
“That among the many crimes perpetrated in Coatepeque during the time about which he is asked, in consequence of his having been a resident of that town, he witnessed only the death imposed upon Casimiro Henriquez, by hanging, in the plaza of said town, on the 3d of the present month [June], at about .six o’clock p. m.; the order for which execution was given, as publicly known, by Antonio Ezeta. But declarant did not give his attention to whom the perpetrators of the crime were.”
The defendants all testify that they had nothing whatever to do with the hanging of Casimiro Henriquez, and that they did not even witness the occurrence. It is not claimed that Antonio Ezeta was present. His connection with the alleged murder was in giving the order to execute Henriquez, and turning him over to the soldiers and women, that they might accomplish that design. One of the witnesses for the government of Salvador testifies positively that he heard and saw the order given. Ezeta testified, in answer to the question that he detail the circumstances under which he saw Casimiro Henriquez on that day, that:
“The forces that captured him [Henriquez] took him, and carried him through the streets of Coatepeque. Upon hearing the noise of the people, I inquired about the matter, and learned that he had been captured, and was being carried through the streets. Subsequently, I was informed that he had been killed. Probably, he was hung. Q. Did you see him hung? A. No, sir, I did not. I saw him when he was dead. Q. Did you order him to be hung? A. No, sir, I did not; but, in conscience, I will state that I believe he was well killed, because he was a rebel.”
Cienfuegos claims that when the hanging took place he was with Gen. Ezeta at the latter’s headquarters. He admits that he heard the tumult of the soldiers and women; that they were shouting, “Death to the traitor!”- and that they were carrying some one, whom he could not see; and that the crowd finally turned towards the plaza, which, he testifies, was about four blocks distant from Ezeta’s headquarters. He states that while all this excitement was going on he remained about the corridor of the house; that he did not follow the crowd, and took no part in the hanging. Bustamante claimed on the stand that he did not even see the execution, but subsequently in his testimony he contradicted himself by admitting that he did witness it. He claimed that he did not seethe hanging because at the time he was busy with his carts stationed at the plaza; but, as the execution took place on the plaza itself, he must have witnessed it, as he subsequently admitted. But this testimony on behalf of Cienfuegos and Bustamante does not offset the positive evidence produced by the government of Salvador to the effect that Cienfuegos and Bustamante were both seen with the populace on that occasion; that they, with others, had the prisoner in custody; that they actually took part in the hanging, the particular part which each of them took in the execution being described by the witnesses in unmistakable language. From the testimony I find that there is sufficient evidence of criminality to warrant me in holding that there is in this case probable cause to
Tlie only testimony I have been able to find in the record tending to connect Gen. Bolanos with this affair is that of An astado Buano, that ILenriquez was delivered, by order of Gen. Bolanos, to Gen. Ezeta, and the testimony of Horacio Olmedo, “(hat Gen. Leon Bolanos, having taken part in the affair, exciting (lie populace, in order that the execution should he more bloody.” This last, statement, at most, is but a mere recital, without any direct averment as to any specific act tending to connect Bolanos with the deed. The accused testifies that on June 3d, the day Henriquez was hung, he was in command of (.he artillery on a hill outside of the city of Coatepeque; that he did not reach the city until 7 o’clock in the evening, and knew nothing of the hanging until be was informed about it at 6 o’clock of that day. He denies having had any connection whatever with tlie execution. The evidence against this defendant is not, in my judgment, sufficient to justify his commitment, and he will therefore be discharged.
The fourth charge is against Antonio Ezeta, for the robbery of the International Bank of Salvador & Nicaragua, in the city of Santa Tecla, or New San Salvador, on June 5, 1894. The depositions of three witnesses were introduced in evidence on (he part of the government of Salvador. Tlie principal witness is one José Buiz, who testifies to all of the matters connected with the alleged robbery. His deposition is as follows:
"The agency in this city of tlie International Bank of Salvador is in charge of tlie house of Ambrosy & Ruiz, located in the same, of which the deponent is a partner; that in effect, on the 5th day of this month [June], about one o’clock in the afternoon, there arrived, where the deponent was, an officer accompanying his clerk, ¡Señor Enrique Orellana, and the clerk and that, officer stated to the deponent that he was wanted at. the agency by a chief or superior officer, to make a transaction; that then the deponent went to the agency, and met in the same a colonel, and many other officers besides, of Gen. Antonio Ezeta, who had on that day reached here at about ten o’clock a. m.; that said superior officer or colonel, on seeing tlie deponent, said to him that, pursuant to order of the señor president of the republic, Don Antonio Ezeta, that he (the deponent) should hand over to him teu thousand dollars of the fluids of the said agency, threatening him at once if he did not do so; that the deponent replied that in the agency there were not ten thousand dollars, and that then the said colonel said to him (the deponent), in an insolent tone, and always threatening him, that he should turn over what there might be, but: without delay, because the president, Antonio Ezeta, was becoming impatient; that in consequence of that the deponent saw himself forced to give what, there was in the vault of the agency, and ordered the vault opened, and, the vault being opened, the latter, the said colonel, and the officers indicated, extracted the money which it contained, which they conn ted themselves, in presence of the deponent, and it reached tlie sum of two thousand five hundred and eighty-four dollars, which they carried away to the said Kzoia, who was in one of tlie habitations or apartments of the Gran Hotel, the deponent having accompanied them, by order of the same colonel; that Ezeta, after receiving the said sum, ordered called the paymaster of Ills forces, Col. Don Rudolf Quell, to whom the same was delivered, and the latter gave him (the deponent) a receipt for the money, which receipt was given and placed by order of the said Ezeta, and the deponent remitted then the said receipt to the*992 board of directors of the bank (Gerencia), furnishing It an account of what had occurred; that he (the deponent) does not know the name of the colonel, nor that of any of the other officers to whom reference has been made, and that the following persons can depose in the matter, to wit, Don Evaristo 'Ambrosy, his partner, who arrived at the time the money was counted, the said clerk, and the paymaster, Señor Quell; deponent declaring that the sum alluded to is exactly that which the International Bank had in cash in the safe or coffers of the said agency, and that what he has testified he both heard and saw.”
The other witnesses, viz. Don Evaristo Ambrosy, the partner, and Enrique Orellana, the clerk in the bank, both corroborate the witness Ruiz in all the important particulars of fact. But it is objected by counsel for defendant that the facts as proven do not establish the crime of robbery, defined in the treaty. Article 2, subd. 4, of the treaty, defines robbery to be.“the action of feloniously and forcibly taking from the person of another goods or money by violence, or putting him in fear.” It is contended that as the money was not taken from the person the crime of robbery, called for by the treaty, has not been proven. The point is also made that there was no “absolute intimidation,” only an “implied intimidation.” It is sufficient to say that the witness Ruiz, one of the proprietors of the bank, stated unequivocally that he was threatened. As to the other point, I have no doubt that “taking from the person” includes “taking from the immediate presence of the person” as well. The definition in the treaty is in effect the common-law definition of robbery, and, as Mr. Justice Washington says:
“If a statute of the United States uses a technical term, which is known, and its meaning fully ascertained by the common or civil law, from one or the other of which it is obviously borrowed, no doubt can exist that it is necessary to refer to the source whence it is taken, for its precise meaning.” U. S. v. Jones, 3 Wash. C. C. 215, Fed. Cas. No. 15,494.
According to the common-law definition, it is well settled that robbery of the person includes robbery “in the immediate presence of the person.” Mr. Justice Washington, in charging a jury in the above case, gave the common-law definition, and the interpretation thereof, in the following language:
“[Robbery] is the felonious talcing of goods from the person of another, or in his presence, by violence, or by putting him in fear, and against his will. It is objected that the taking must be from the person. The law is otherwise, for if it be in the presence of the owner, — as if by intimidation he is compelled to open his desk, from which his money is taken, or to throw down his purse, which the robber picks up, — it is robbery, as much as if he has put his hand into the pocket of the owner, and taken money from thence. But the taking must be in the presence of the owner.”
The similarity between the common-law definition'of robbery, as given by Mr. Justice Washington, and that contained in the treaty, needs no comment. The definition in the American & English Encyclopedia of Law (volume 21, pp. 414, 424), further confirms the correctness of the construction placed upon the definition of robbery contained in the treaty:
“To constitute robbery, the taking must be from the person of the party robbed. But anything taken from the presence or view of the party, or from*993 his protection, Is constructively taken from his person.” 1 Hale, P. C. 533; 2 East, P. C. 707; Reg. v. Solway, Cox, Cr. Cas. 235; State v. Calhoun, 72 Iowa, 432, 34 N. W. 194; Clements v. State, 84 Ga. 660, 11 S. E. 505.
In my opinion, it is enough, therefore, to bring the offense within the crime of robbery, as defined in the treaty of extradition, that the money or goods be taken from the presence or view of the party robbed, by violence, or by putting him in fear.
The defendant does not deny that the money was taken from the bank by his officer, Col. Juan Cienfuegos. He admits that the latter went to the bank at his orders. He claims that it was absolutely necessary to have the money for the purpose of paying the troops, who had not been paid for two days, and that it was the custom to pay the troops daily. Whether the exigencies of the military operations required that this so-called “forced loan” should be made, and was justifiable under the circumstances, remains to be considered when I come to treat of the political phase of the offenses charged- Suffice it to say that so far as the offense itself is concerned, considered without reference to any political aspect of the act, the evidence of criminality preponderates sufficiently over the testimony of the accused to justify me in saying that there Is probable cause to.believe the defendant guilty.
The last charge is that against Antonio Ezeta and Juan Cienfue-gos, for the murder of Tomas Canas, on June 6, 1894, on the road leading from Santa Tecla to La Libertad. The facts of this alleged murder, as severally testified to by the witnesses on the part of the government of Salvador, are, briefly, that while Gen. Antonio Ezeta, with his staff, were proceeding along the road leading from Santa Tecla, to La Libertad, they met one Col. Tomas Canas, who was coming from an opposite direction. Canas approached Gen. Ezeta, and told him that the enemy wanted his head. One of the witnesses states lhat Canas drew near to Gen. Ezeta, speaking to him at his ear; that afterwards Gen. Ezeta told them that Canas had said to him that Manuel Rivas wanted his head. Both drew their revolvers, and Gen. Ezeta fired a shot at Canas. Cienfuegos immediately followed with three shots. Canas was afterwards found dead by the roadside, with several bullet wounds in his body. Which one of the two made the first movement to draw his revolver does not appear from the evidence of the government of Salvador, but it is certain that Canas did not shoot. And in this connection the testimony of one Fernando Carranza, a boy aged 13 years, bugler to Gen. Ezeta, may be referred to. He testifies as follows:
“That on the road, and before the reaching the point called El Ama tillo, Col. Tomas Canas approached near to Ezeta, and told him that the enemy wanted his head; that Juan Cienfuegos reached to where Canas stood, and wanted to take his revolver from his pocket, which he obtained; that, after the words which passed between Canas and Ezeta, the latter fired a shot at the former, and Cienfuegos fired three, other shots at him.”
The statement that Cienfuegos procured the revolver of Canas is not corroborated by any of the other witnesses, and is inconsistent with the testimony of Gen. Calixto Guzman, who stated that both
“Article 360. Murder is homicide committed with premeditation,- and under - any one of the following’ circumstances: First, with perfidy or breach of trust; second, for a price, or promise of reward; third, by means of flood, fire, or poison. The crime of murder will be punishable with the penalty of death.
“Article 361. Homicide. He who Mils another with premeditation, and without any of the circumstances enumerated in the preceding article, or under some one of said circumstances, and without premeditation, will be punished with the penalty of imprisonment at hard labor. In any other case, the penalty of imprisonment at hard labor shall be imposed on the offender.”
It is contended that the facts here proven do not show the circumstances constituting murder, within the meaning of the law of Salvador, and therefore the accused cannot -be extradited for that offense, and that, if the facts be held to bring the case within section 361 of the Penal Code of Salvador, still the accused cannot be extradited, for that is not the crime known as murder. It seems to me that this is a refinement not justified by the terms of the treaty. I cannot understand why, if the treaty was only intended to comprehend murder as known to our law, or what corresponds to that crime elsewhere, there should have been a further enumeration of offenses amounting to the same degree. In my opinion the article of the treaty in question should be read according to its plain and
I have now reached the most important question to be considered in this examination. It is claimed by counsel for the defendants that, with the exception of the charge against Juan Cienfuegos for the attempt to murder Amaya, all the acts charged against the defendants in these several complaints were committed during the progress of actual hostilities, in which the accused were engaged as military officers under the government, acting against revolutionary forces in the field; that the crimes or offenses were therefore of a political character, and, under the treaty, not: subject to extradition. Counsel for the present government: of Salvador contend, on the other hand, that it, is no part of my duty to determine this question; that my jurisdiction is limited to the examination of the criminality of the accused, as charged in the complaints, and, if it appears upon this examination that the evidence is sufficient: to warrant me in the belief that the persons accused are guilty of the offenses charged, then I must so certify that fact to the executive department of the United States, where it may properly be determined whether the offenses are of a political character’ or not. The argument in support of this proposition is derived from the language of the treaty, describing 1he offenses made subject to extradition, and particularly the provision that persons convicted or charged with any of the crimes specified shall be delivered up only “upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or tier apprehension and commitment for trial if the crime had been there committed.” It is contended that this provision necessarily excludes the jurisdiction of the committing magistrate to inquire into the political character of the offense, for the reason that' under our laws there can be no crime of a political character, unless it partakes of the nature of treason. Further argument in support of this position is found in the language of section' 5270 of the Revised Statutes, providing that: any person charged with an extraditable crime under any treaty may be arrested and brought: before the magistrate “to the end that the evidence of criminality may be heard and considered.” It is claimed that this provision is a limitation upon the jurisdiction of the com-. mitting magistrate; that when he has received and considered the evidence of criminality of the accused as to the crime charged in the complaint the examination is at an end. If the evidence is not
Having jurisdiction to determine whether the charges against the accused are of a political character or not, I proceed to the consideration of that question. As before stated, the charge against -Tuan Cienfuegos for the attempt to murder Andres Amaya does not involve any snch question. The other charges do. The testimony shows that they were all committed during the progress of actual hostilities between the contending forces, wherein Gen. Ezeta, and his companions were seeking to maintain the authority of the then existing government against the active operations of a revolutionary uprising. With the merits of this strife I have nothing to do. My doty will have been performed when I shall have determined the character of the crimes or offenses charged against these defendants, with respect to that conflict. During its progress, crimes may have been committed by the contending forces of the most atrocious and inhuman character, and still the perpetrators of such crimes escape punishment as fugitives beyond the reach of extradition. I have no authority, in this examination, to determine what acts are within the rules of civilized warfare, and what, are not. War, at best, is barbarous, and hence it is said that “the law is silent during war.”
What constitutes an offense of a political character has not yet boon determined by judicial authority. Sir James Stephens, in his work, History of the Criminal Law of England (volume 2, p. 71), thinks that it should be “interpreted to mean that fugitive criminals are not to be surrendered for extradition crimes if those crimes were incidental to and formed a part of political disturbances.” Mr. John Stuart Mill, in the house of commons, in 1806, while discussing an amendment to the act of extradition, on which the treaty between England and France was founded, gave this definí
“The question really is whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in acts of violence of a political character with a political object, and as part of the political movement and rising in which he was taking part.”
Judge Hawkins, in commenting upon the character of political offenses, said:
“I cannot help thinking that everybody knows there are many acts of a political character done without reason, done against all reason; but at the same time one cannot look too hardly, and weigh in golden scales tiie acts of men hot in their political excitement. We know that in heat, and in heated blood, men often do things which are against and contrary to reason; but none the less an act of this description may be done for the purpose of furthering and in furtherance of a political rising, even though it is an act which may be deplored and lamented, as even cruel and against all reason, by those who can calmly reflect upon it afta; the battle is over.”
Sir James Stephens, whose definition as an author has already been cited, was one of the judges, and joined in the views taken as to the political character of the crime charged against Castioni. The prisoner was discharged. Applying, by analogy, the action of the English court in that case to the four cases now before me, under consideration, the conclusion follows that the crimes charged here, associated as they are with the actual conflict of armed forces, are of a political character.
The draft of a treaty on International Penal Law, adopted by the congress of Montevideo in 1888, and recommended by the International American Conference to the u governments of the Latin-American nations in 1890, contains the following provision (article 23):
“Political offenses, offenses subversive of the Internal and external safety of a state, or common offenses connected with these, shall not warrant extradition. The determination of the character of the offense is incumbent upon the nations upon which the demand for extradition is made; and its decision shall be made under and according to the provisions of the law which shall prove to he most favorable to the accused.”
I am not aware that any part of this Code has been made the basis of treaty stipulations between any of the American nations, but the article cited may be at least accepted as expressing the wisdom of leading jurists and diplomats. The article is important with respect to two of its features: (1) It provides that a fugitive shall not be extradited for an offense connected with a political offense, or with an offense subversive of the internal or external safety of the state; and (2) the decision as to the character of the offense shall be made under and according to the provisions of the law which shall prove most favorable to the accused. The first provision is sanctioned by Calvo, who, speaking of the exemption from extradition of persons charged with political offenses, says:
“The exemption even extends to acts connected with political crimes or offenses, and It is enough, as says Mr. Faustin Hiilio, that a common crime be connected with a political act, that it be the outcome of or be in the execution of such, to be covered by the privilege which protects the latter.” 2 Calvo, Droit Int. (3me Ed.) p. 413, § 1262.
“In the revolutions, as we conduct them In our countries, the common offenses are necessarily mixed up with the political In many cases. A revolutionist has no resources. My. distinguished colleague General Caamaiio [of Ecuador] knows how we carry on wars. A revolutionist needs horses for moving, beef to feed his troops, etc.; and since he does not go into the public markets to purchase those horses and that beef, nor the arms and saddles to mount and equip his forces, he takes them from the first pasture or shop he finds at hand. This is called robbery everywhere, and is a common offense in time of peace, but in time of war it is a circumstance closely allied to the mannei1 of waging it” International American Conference, vol. 2, p. 615.
Looking now to tbe cases which have arisen in the United States, or with our immediate neighbors, where the political character of the offense has been in question, we find that the extradition proceedings have been against persons charged with acts committed against the government, and not, as in these cases, where the acts are charged against persons who for the time being represented the existing government. Nevertheless, these cases are of some value as authority upon the general question as to what constitutes an offense of a political character. I will therefore refer to these cases as I find them stated in 1 Moore on Extradition. The first case mentioned is that of William L. McKenzie. It—
“Arose under the New York statute of 1822, which authorized the governor of that state to deliver up, upon the requisition of the duly-authorized ministers or officers of foreign governments, persons charged with the commission, within the jurisdiction of such governments, of any crime, except treason, which by the laws of New York would, if there committed, be punishable with death or imprisonment in the state prison. Tinder this statute, Gov. Head, of Upper Canada, in 1837, made a requisition upon Gov. Marcy for the extradition of William Lyon McKenzie, a printer, on charges of murder, arson, and robbery. By the documents which accompanied the requisition, it appeared that McKenzie acted as the leader of a band of men, from six to fifteen hundred in number, who began an insurrection in Canada for the redress of alleged grievances. On the 4th of December, 1S37, they assembled under arms near the city of Toronto. Gov. Head sent them a message, calling upon them to disperse, to which they replied that they would not treat with him unless they were allowed a free pardon, and unless he called a convention of the people to remodel the government These conditions Gov. Head refused. On the night of the 4th of December a man named Moodie, in company with other persons, attempted to pass the lines of the insurgents in order to reach Toronto. While attempting to pass they were called upon to surrender themselves as prisoners. They refused, and a volley was fired by the insurgents, in which Moodie was killed. On the following day, in the prosecution of their enterprise, the insurgents burned the dwelling house of a Mr. Horne, and seized some mail bags which were in the custody of the driver of a stagecoach, and rifled them of their contents, obtaining a number of letters and some rnobey. On the 6th of December the insurgents were dispersed by a military force under the command of Gov. Head, in a conflict in which fifty of the insurgents were killed and wound*1001 ed, and three of the government, party wounded. When Gov. Marey received, the requisition for McKenzie’s extradition, he referred the matter to the attorney general of the state, Samuel Beardsley, for an opinion. The attorney general, on December 23, 1837, gave an opinion in which, after reviewing the facts above narrated, lie held that the acts with which the fugitive was charged were of a political character, and that consequently the governor was without authority to surrender him. Upon the receipt of this opinion, Gov. Marey, on December 25, 1837, informed Gov. Head of the proceedings that had been taken upon his requisition. In this communication, Gov. Marey stated that the documents clearly showed that McKenzie committed the crimes imputed to him, and also that previously thereto ‘he had revolted and was in arms against her majesty’s government of Upper Canada. His crime,’ Gov. Marey continued, ‘is therefore treason, and, if a fugitive within this state, he must be regarded as a fugitive to avoid the punishment for this offense, rather than for those imputed to him in the documents accompanying your excellency’s application. These latter offenses must be considered as the incidents of the alleged treason.’ ” 1 Moore, Extrad. p. 313 et seq.
The next ease is that of certain Mexican revolutionists. Mr. Moore gives the following statement of the facts of that case:
“Several eases are found in which the government of the United States has held that the offenses with which fugitives were charged were of a political character, and hence did not afford a ground for extradition. In 1880 a band of eight Mexicans, who were suspected of being revolutionists, came over from Sonora into the territory of Arizona,, where they were captured, and placed in the custody of an officer of the United States army. A demand for their surrender, addressed to the territorial authorities, was refused. Application was then made to the federal government for their extradition on the charge of larceny of cattle and of other chattels of the value of twenty-five dollars and upwards. It appeared that they liad entered the town of Magdalena, and, in the professed prosecution of a political enterprise, exacted large sums of money from the inhabitants, under threats of hanging them. Tiie Mexican minister, in preferring the request of his government for the prisoners’ surrender, adverted to the circumstances, and suggested the question whether the professed political motive was not a pretense to cover criminal acts.”
Tlie United States refused to deliver up the prisoners, stating as a reason, among otliers, that the fact—
“That they were charged with being revolutionists shows that, whatever may have been their other crimes, they may also have been guilty of a political offense for which the treaty stipulates that no extradition shall bo granted.’” 1 Moore, Extrad. p. 323, § 210.
The next case mentioned by Mr. Moore is that of Cazo:
“On February 8, 1887, the Mexican minister presented a request for th® extradition of one ‘Francisco J. Cazo and his accomplices,’ charged with murder, assault with intent to commit murder, and robbery, committed in the town of Agualeguas, in the state of Nuevo Leone, Mexico, on the 11th, 12th, and 13th of July, 1880, who had taken refuge in Texas. The evidence disclosed that, three or four days previously to the 11th of July, it was reported that Cazo was coming to atta,ck the town. Just before midnight of the 10th of July a number of persons were observed to leave the place armed, and about two o’clock on the morning of the 11th an attack was made by a party of thirty or more persons, who could not be identified, but who kept shouting. ‘Hurrah for Don Francisco J. Cazo, and death to the Garra party!’ The raiders kept possession of the town for nearly three days, during winch time they had armed encounters with the inha hitante, seized horses and other property, and committed other acts of violence. When they departed. Cazo left a proclamation with a citizen of the town, with directions to publish it. In reply to the application for extradition, Mr. Bayard, then secretary of state, oit February 7, 1887, wrote as follows: ‘After a careful examination of the papers inclosed In your note, 1 am unable to avoid the conclusion that the*1002 acts of Cazo and his associates, who were about thirty or forty In. number, were clearly of a political character, and consequently, under the express terms of article 6 of the treaty above mentioned, are not a proper baste for extradition. The character of the outbreak, the kind and quantity of the property taken, and the mode of attack, all lead to that conclusion. Although the first assault of Cazo’s party was made in the night, there was no effort to conceal the personal identity of the leader; and such property as was seized was taken, manifestly, for the purpose of military equipment, for which it was adapted. The evidence offered of the fact that Cazo led the attack is the testimony of several witnesses that the assailants cried, “Hurrah for Don Francisco J. Cazo!” and at least one witness testifies to the additional and accompanying exclamation of “Death to the Garra party!” Another witness states that Cazo left a proclamation in the hands of a resident of Agualeguas, with a view to its publication. Indeed, all the circumstances point to the conclusion that the affair was an avowed partisan political conflict.’ ”
The acts and motives of the accused in the cases now before me are certainly as closely identified with the acts of a political uprising, in an unsuccessful effort to suppress it, as are the acts and motives of any of the persons whose cases have been reported. The alleged hanging of four persons in Las Pulgas ravine by Bolanos and Bustamante was because the persons executed were hiding in houses located in Primavera canton; and, haying declared that they had concealed themselves in consequence of not desiring to take part either for or against the revolution, Bolanos ordered Bustamante to hang them. If this statement be true, it shows that the offense was directly connected with the conflict then raging between the army under Ezeta and thé revolutionary forces. It must be remembered that a state of siege was. prevailing in the republic, proclaimed on April 29, 1894, and that a state of siege is the equivalent of what is known in this country as "martial law.” On the question of martial law, Wheaton, in his work on International Law (3d Eng. Ed. p. 470) says:
“Martial law has been defined to be the will of the commanding officer of an armed force, or of a geographical military department, expressed in time of war within the limit of his military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged by the orders of its military chief or supreme executive ruler. * * * Martial law is founded on paramount necessity. It is the will of the commander of the forces. In the proper sense, it is not law at all. It is merely a cessation, from necessity, of all municipal law, and what necessity requires it justifies. Under it a man in actual armed resistance may be put to death on the spot by any one acting under the orders of competent authority, or, if arrested, may be tried in any manner which such authority shall direct; but if there be an abuse of the power so given him, and acts are done under it, not bona fide to suppress rebellion, and in self-defense, but to gratify malice, or In the caprice of tyranny, then, for such acts, the party doing them is responsible.”
The hanging of Henriquez is also a case arising out of a conflict between military forces. He was charged with being a spy. His father says he did not participate on either side. It is not for me to determine which of these statements is true. He may have been a noncombatant, and his murder, like that of Eossi in the Case of Castioni, a misfortune (as it doubtless was in any view), and unnecessary in the enforcement of the governmental authority. But, conceding all this, the execution took place at the close of an important battle, and was undoubtedly connected with the turbulent condition of affairs prevailing at Coatepeque at that time, and waa therefore of a political character
“The citizens of the United States residents in the republic of Salvador, and the citizens of Salvador residents in the United States, shall be exempted * * * from all contributions of war, military exactions, forced loans in time of war,” etc.
The reciprocal character of this provision does not deprive it of its plain purpose to protect American citizens residing in Salvador from a system of government exactions prevailing in Central and South American states, under some of their political administrations. In this case the money taken from the bank was receipted for, and, by order of Gen. Ezeta, delivered to a paymaster, with orders to pay the forces. Gen. Ezeta was at this time not only the commander in chief of the army, but he was also the acting president of the republic. As to the political character of this offense, there cannot be, it seems to me, a shadow of doubt.
The murder of Col. Tomas Canas presents a different state of facts from either of the other cases. Col. Canas was an officer in the army, commanding a brigade under Gen. Ezeta. On the morning of the 6th of June, 1894, Gen. Bolanos reported to Gen. Ezeta, at Santa Tecla, that Col. Ganas had gone over to the enemy. As Gen. Ezeta and his staff were proceeding rapidly on the road to La Libertad, they met Col. Ganas. The testimony is to the effect that Col. Canas rode up to Gen. Ezeta, and, taking him by the throat, said, “General, Manuel Rivas wants your head!” that Canas placed his hand on his revolver, and at the same time Gen. Ezeta drew his revolver and fired at him, and Col. Cienfuegos also fired three shots at Ganas. It will be seen from this statement that the affair involves, not only the question of the political character of this offense, but its relation to the; military law. Indeed, it is contended by counsel for the defendants that these four cases are all subject to the military, and not to the civil, law, and for that reason not subject to extradition. I will not enter into an extended discussion of this feature of these cases, but, as the murder of Col. Canas makes it necessary that I should consider that phase of the charge against Gen. Ezeta and Col. Cienfuegos, I will do so briefly. A general principle of military law is that no acts of military officers or tribunals, within the scope of their jurisdiction, can be revised, set aside, or punished, civilly or criminally, by a court of common law. Another principle of law is that offenses committed by persons in the military service during the time of war, insurrection, or rebellion, are punishable only by military tribunals. This is found in the law of Salvador, relating to the state of siege, in the following terms (article 5):
“The state of siege being declared, the crimes of treason, rebellion and sedition will be subject to the military authorities; also crimes against the public peace, independence and sovereignty of the state and infringement of the law of nations.”
In Coleman v. Tennessee, 97 U. S. 509, the supreme court of the United States had under consideration the question of jurisdiction under this law. The facts of that case were that a soldier in the military service of the United States, on the 7th of March, 1805, and during the war of the Rebellion, committed the crime of murder in the state of Tennessee. He was tried by a military court-martial, convicted, and sentenced to suffer death. After the constitutional relations of the state of Tennessee to the Union were restored, he was indicted in one of her courts for the same murder. To the indictment he pleaded his conviction before a court-martial. The plea being overruled, he was tried, convicted, and sentenced to death: The question in the supreme court of the United States was the jurisdiction of the state court over the person of the defendant, and it was held that the state court had no jurisdiction to try him for the offense, as he, at the time of committing it, was not amenable to the laws of Tennessee. Mr. Justice Field, speaking for the court in this case, said:
“The laws of Tennessee with regard to offenses and their punishment, which were allowed to remain in forcé during its military occupation, did not apply to the defendant, as he was at the time a soldier in the army of the United States, and subject to the articles of war. He was responsible for his conduct to the laws of his own government only, as enforced by the commander of its army in that state, without whose consent he could not even go beyond its lines. Had he been caught by the forces of the enemy, after committing the offense, he might have been subject to a summary trial and punishment by order of their commander; and there would have been no just ground of complaint, for the marauder and the assassin are not protected by any usages of civilized warfare. But the courts of the state, whose regular government was superseded, and whose laws were tolerated from motives of convenience, were without jurisdiction to deal with him.”
I am unable to understand how the overthrow of the Ezeta government and the dissolution of its army change the status of this question. In the case just cited the disbandment of the Union forces and the restoration of peace, in April, 18GG, did not affect the question of jurisdiction. Mr. Justice Clifford, in a dissenting opinion, suggests that the proceedings against Coleman by court-martial were abandoned by the return of peace. The sentence of the court-martial was never executed, and the learned justice says, “It is, perhaps, equally clear that it has become a nullity by the intervention of peace.” The facts upon which the prevailing opinion is based do not conflict with this explanation why the sentence against Coleman was not executed.
It follows, as a conclusion from the principles declared by these authorities, that the military law of Salvador had jurisdiction to punish the accused, as military officers, for the offenses committed by them during the progress of the revolution, and, this being so, these four cases now under consideration, and particularly the charge against Antonio Ezeta and Juan Cienfuegos, for the murder of Tomas Canas, were properly within that jurisdiction, and not within the jurisdiction of the municipal law. If this fact does not, of itself, place these offenses outside the law of extradition, it at
