972
FEDERAL
vol. 62.
I· bavedete,rmined, in case you make that motion, to allow th'e testimony to betaken, and certify it with the other evidence in' the case. In re EZETA. In re BOLANOS. In re COLOCHO. In re BUSTAMANTE. Nos. '11,095-11,099.
In re CIENFUEGOS.
, (District Court, N. D. California.
September 22, 1894.)
L
INTERNATIONAL EXTRADITION-PRELIMINARY PROOF.
Rev. St. U. S. § 5270, relating to extradition, provides that if the committing magistrate deems the evidence su1liclent to sustain the charge, under the proper treaty, he shall certify the same, etc. The treaty between the United States and Salvador provides that fugitives from justice shall be delivered up only on such evidence of criminality as, according to the laws of the where the fugitive is found, would justify his commitment for trial if the crime had been there committed. Rev. St. U. S. § 1014, provides that persons charged with crimes against the United States may be arrested and imprisoned or bailed "agreeable to the usual mode of process against offenders in such state." Pen. Code Cal. § 872, provides that if it appears public offense has been committed, and there is sufficient cause to believe defendant guilty theroof, the mfrgistrate shall make an orderto that effect, and that defendant be held to answer. Held, that in the el!amination of persons found in California, charged with being fugi· tives from the justice of Salvador, the evidence of criminality must con· form to, and be weighed and judged by, the laws of this country. and particularly the laws of California, and that the evidence of criminality which will justify holding the accused need be such only as ordinarily obtains at a preliminary examination, and amounts to probable cause, or such as would justify a cautious man in believing the accused guilty.
&.
SAME-EXAMINATION OF ACCUSED-DEPOSITIONS-WHEN ADMISSIBLE.
Act Aug. 3, 1882 (22 Stat. 216) § 5, provides that any depositions or other papers, or copies thereof, shall be received in evidence on the hearing of any extradition case under Rev. St. U. S. tit. 26, if they are properly and legally authenticated so as to entitle them to be received for similar purposes by the tribt'nals of the foreign country from which the accused shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that they are authenticated in the manner required by this. act. that papers purporting to be depositions, so certified, are admissible on such hearing, though the recitals contained in 'the introdUCtory part thereof show that they are mere statements, and not depositions.
&
J. C., a military officer of Salvador, was accused of attempt to murder one A. in front of the latter's residence in Salvador, while Carlos Ezeta was president, and Antonio Ezeta was general of the army, and four months before the revolution of 1894. Q., a police officer, testified the day after the alleged attempt that he heard several shots while near A.'s residence, and saw three persons running; that he found J. C. and another person together; that he captured J: C., but the other person escaped; that J.e. had a revolver in his hand, from which three shots had been fired by him at A.; and that he could not identify the persen who was with J. C. The record contained a statement by J. C., deslb'1lated as a deposition, made to , the authorities upon his arrellt, to the effect that while he, one C., and three Qtl1ers were passing the porch ,of A.'s residence, A. shot at the group; that e. iIDltantly fired a shot, and 'afterwards two more; that 'declarant fired two shots at A.; that his companions scattered, and he appeared before Q., handed him his revolver, and told him he had fired two shots.at A.; that he wasCGIlstantly escortillgO., by o,rder of Gen. Ezeta.
SAME-ATTEMPT TO MURDER-EVIDENCE-SUFFICIENCY.
IN RE EZETA.
973
, to guard him from harm, and especially in consequence of a misunderstanding between C. and A.; and that he fired the shots at A. to defend C. The accused testified to substantially the same facts contained in such statement. The record showed that the court ordered that he should remain in temporary custody. He testified also that, soon after hIs arrest, Gen. T!)zetll. procured his release; that an hour later he was rearrested by order of President Ezeta; that three days afterwards he was released by instructions of the president; and that he was never rearrested. Held, that the evidence showed probable cause of J. C.'s guilt. " SAME-Jus'rIFIOATION.
One accused of an attempt to murder in Salvador admitted that he twice shot at a person as charged, but claimed that he did so in defense of himself and another whom he was ordered by his superior military officers to protect. Held, that the accused should be held for extradition, his justification being matter of defense for the courts of Salvador.
5.
SAME-RELEASE OF ACCUSED WITHOUT TRIAL-EFFECT.
The release of the accused by his superior officers, without being tried or pardoned, construed as a privilege conferred on him by executive authority equivalent to an order entered only by judicial authority in the United States, permitting him to go on his own recognIzance, affords no legal objection to his arrest and trial on such charge; and the magistrate cannot consider the fact, if it exists, that the renewal of the prosecution is an effort by the present government of Salvador to secure the accused's person for the purpose of wreaking vengeance on him for the part he took against the revolntionists in the late war.
6.
SAME-MuRDER-SUFFICIENCY OF EVIDENCE.
L. and F., officers under Gen. Ezeta, were accused of hanging four unknown persons May 29, 1894, in Pulgas ravine. M., whose deposition was taken June 24. 1894, testified that "what he knows from ocular evidence only is" that F., by order of L., hung four persons in Pulgas ravine at the end of May, whose names he does not know; that some soldiers had found these persons hidden in little houses in P. canton, and L. ordered 1<'. to hang them; that F. took them out of the house, and accomplished their death; that L. was present; and that one E. and others could testify to the matter. E., in his deposition, did not allude to such hanging, and the testimony of no other witness was produced. The accused denied their connection with such hanging. Held, that the evidence failed to show probable cause to believe the accused guilty.
'1.
SAME.
Gen. Antonio Ezeta, vice president and commander in chief of the army of Salvador, and J. C., L., and officers under him, were charged with the murder of C. H., at the village of Coatepeque, Salvador, June 3, 1894, during the revolutionary hostilities. The statement of C. H.'s father, not under showed that Gen. A., an officer under Ezeta, took his son from his house on such day; that, on reaching the army, A. turned his son over to L., who ordered him delivered to Ezeta; that, on being told that his son was a spy, Ezeta struck him, and ordered him hung; that he was then taken to the plaza of Coatepeque, and hung; that F. cut the rope to see the corpse fall, and J. C. fired several shots into the body; and that his son took no part in the revolution. nor with Ezeta's forces. R. testified that Ezeta ordered C. H. to be hung, believing he was a spy and enemy. and that J. C., F., and one S. took part in carrying out the order. E. testified he saw C. H. carried away by A., J. C., and F. towards Ezeta's headquarters; that soon afterwards the same party went to the middle of the plaza, where they hung C. H. to a lamp-post; that J. C., F., and S. hung him. O. testified that Ezeta ordered C. H. hung, and delivered him to the populace to do as they wished with him. The accused all testified that they had nothing whatever to do with, and did not see, the hanging of C. H., but F. contradicted himself by afterwards stating that he saw the hanging. Ezeta testified that the forces that captured C. H. carried him through the streets; that on hearing the noise he learned of the capture; that he was afterwards informed that he was killed; and that he did not -order him hung, or see him hung. Held, that the evidence sh()fWed prob-
FEDERAL'/RBPORTER,
tlle guiltofi.Ezeta,J: elj and F., "fltefl'@ence':1l6! 8ilIly.!political aspectoftlie acts,' but faUed to show the guilt 'of 1J, t,.' J
8; ,
, Gel,1.E2iebi, theIi ,pl'esident of'Sl:\lvaddr, was cl:targed with robbery of the , Internat10nal ,Bank Of Salvad6r& .Nicaraguaiul ;Tune 5, 1894. It: that th¢, agency ofs(:tch bank Santa TecW., was, in charge of the house of A; '& R., in whIch he th# 911 June 5,1894, an officer and witness' clerk came to him, and.told him he'was wanted at such agency by asuperlor officer; that he went to the agency, and met It CQlonel and many' 'more' of E7.eta'S omeers; that s:uch,colonel' sllltd that, pursuant tQ orders of President Ezeta, the witness' shOuld haltd over to him $10,000,. threatening him at once if he did not dosc; that he told 'the officer there was not $iO,OOOthere; that theofficel' then told him,Waninsolent way, and always threatening him, to 'hand over 'what there was without delay; that he was forced to give what there was'dn the vault; that he ordered the vault opemid,'and such officers took'the money"$2,584, and carried it to Ezeta, accompanied by witness; arill'that Ezeta gave the money to the paymaster , of':his forces, who gave witJiess 'a receipt for:itby Ezeta'sorder. R. was corro1»rated ina11 important particulars by the testimony of his clerk and 'partner. Held, that there ,was probable cause to believe the accused guilty. . ,.
OF'
.'.
.
...'
in
9.
__ ..' . '. The treaty between the tJhlte,d Statee and, Salvador robbery as "the action of feloniously and' forcibly taking from the person of another goode or money by violence, or putting hjmlnfear." . Held, that taking money 0:1' from the or vi,ew Of the robbed, by violence, or by putting him In felli, \Va.s robbery, within the meaning of such treaty. '. ,. . " '. " 10. WEVIDENCE., . his,officer, were charged with the . murder of 09.eC.., June 6, on.tlle road from Santa Tecla tor..a ,Liber"The was Ezeta and met C. on " suchroad;ti}a,t C. approached,Ezet,a,and told him that wanted ,his head; that both Ezet,aandO, drewreYQIwrs, and Ezetlltlreda shot at :0; that J.C. foH\yweli with th1WeshotS; C.was killed. Which (Ezeta or C.) made. the first. movemE1nt to draw his revolver did not appear, but C. did not shoot. The accused admitted that they shot and . ..C." J;[\ed tbat. thee.y ,d. d .It tba,t...O., as an officer . J. , I UJ1.der Ezeta, had, been traltorqUs to his tt'ust; that he surrendered the 801etc., under his commaW'l:,to the enemy that ,that when he l)let the accused he was and said to Ezeta, "General, Manuel ,Rtvas wants yqur .head;" he then seized :p.1zeta. by the throat, and a movement as If to dl'aw his revolver; that J. C. attempted to pre:Vent him. from df.aW,ing it; that Ezeta immediately fired a shot at C.; and C.followed.wlththree.shots. !leld thl,l.t,consldering the act charged merely as a common and ellmmating the question as to whether it nlll-Y be regarded as a mliltary act, and therefore a political offense, the .evidence showed, probable cause, to believe the accused guilty. 11. SkME-MuRDER-WHAT CONs1'rTuTEs. :The treaty betweenthe United 'States and Salvador (article 3) defines mur'del:' ,as "cofnprehending the cril:l1e,8 designated iil the penal codes of the con· tractlng parties by the terms homicide, parricide, assassination; poisoning, ! ,and.1nfanticldeY The 'PenalCodeof Salvador provides: "Art. 860. Mur,f ',deris homicide,ieommittedwJth· premeditation, and under one of the following circumstances: (1) Wlthperftdy or breach of trust; (2) for a price or'in'omisefofrew31'd; (3) by.mearu; of'flood, fire or poison. The crime of 'murderwlll' be'punished.with the penalty Of death. Homicide, Art.36l. ·He who kills another with premeditation, anll without any of theclrcumstances enumerated in tile preceding article, 01' iundersome one of said circumstances and without premeditation, will be punished With the penalty of imprisonment at hll1'd labor. In any other citse the penalty of imprison·
IN ,RE EZET.\.
975
ment at bard labor sba.ll be imposed on theolrender." Herd, that homicide, as deflned in the Penal Code of Salvador (article 361), constitutes murder, as detlned in such treaty. 'lI. SAME-COMMITTING MAGISTRATE-DETERMINATION THAT OFFENSE 18 PoLI'l'leAL.
, The treaty between the United States and Salvador provides that persons charged with or convicted of any of the extraditable offenses 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 her apprehension and commitment for trial if the crime bad been there committed;" that its provisions "shall not apply to any crime or offense of a political character; that a warrant for the apprehension of a fugitive may issue, in order that he may be brought before the proper judicial authority for examination; and that if it should then be decided that according to law ana the evidence the extradition is due, pursuant to the treaty, he may be given up. Rev. St. U. S. § 5270, provides 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," and that if it is sufficient the magistrate must certify the same, together with a copy of all the testimony taken before him, to the secretary of stAte, that warrant may issue on the requisition of the proper authorities for the surrender of such person, according to the stipulations of the treaty. Held, that the committing magistratehas jurisdiction, and it Is his duty, to determine whether the offense charged is political, and not subject to extradition. :;18. SAME-Por,ITICAL OFFENSES-WHAT ARE·
'14. lG.
.The testimony showed that the alleged hanging of four persons, May:!U, 1894, by L. and F., officers of President EJzeta; the killing of C. H., June 3, 1894. at Coatepeque plaza, by President EJzeta and the other defendants,.his officers; the robbery of a bank, June 5, 1894, by President EJzeta; and the killing of C., June 6, 1894, by President EJzeta and J. C., his officer,-were aUcornmitted during the existence of a state of siege in the republic of Salvador, proclaimed April 29, 1894, and the progl.'eBs of actual hostilities between the contending forces, wherein Ezeta and his companions were seeking to maintain the authority of the then existing government against a revolutionary uprising; that such acts were associated with the actual conflict of such armed forces; that the four persons were hung because they did not assist in defending the gover-nment; that C. H. was killed because he was considered a spy; that the robbery of the bank was for the purpose of Ezeta'il soldiers, and was what is known in the Central 8J1d South American states as a "forced loan," recognized by the treaty between the United States and Salvador; aDd that the kUling of C. was the result of a report that he had gone over to the enemy. Held, that such offenses were of a political character, and not subject to extradition. SAME-MILITARY OFFENSES AND JURISDICTION.
The killing of C. by President Ezeta and his ofilcer, being within the jurisdiet10n of the military law of Salvador, is not subject to extradition.
SAKE-CHANGli OF GOVERNMENT-EFFECT.
The overthrow of the Ezeta government by such revolution, and the dissolution of its army, did not change the status of the question as to whether mch offenses were within such military jurisdiction.
Applications by the republic of Salvador for the extradition of five persons, upon the following charges: (1) In re No. 11,095, Leon Bolanos and Florencio Bustamante, for the crime of murder of four persons, names unknown; (2) In re No. 11,096, Juan Cien· fuegos, for an attempt to murder one Andres Amaya; (3) In re No. 11,097, Antonio Ezeta, Leon Bolanos, Jacinto Colocho, Juan -Qienfuegos, and Florencio Bustamante, for the murder of one "asilniro Henriquez; (4) In reNo. 11,098, Antonio Ezeta, for the "robbery of the International Bank of Salvador & Nicaragua; and
FEDERA.L UPO:RTER,
(6) . Antonio Ezeta and Juan Cienfuegos, for the murder of one The applicatic>ns,with the exception of that for the of Juan Cienfuegos for the attempt to murder (In re No. 11,096), were refused, upon the following grounds, to wit: In re No. 11,095: That the evidence of criminality against Leon Bolanos and Florencio Bustamante, for the murder of four persons (names unknown), was insufficient in law to justify committing them. In re No. 11,097:. That the evidence of criminality was sufficient in law to justify committing Antonio Ezeta, Juan Cienfuegos, and Florencio Bustamante for the murder of Casimiro Henriquez, but that said crime was of a political character, and hence not extraditable. under article 3. of the treaty,and that the evidence of crimlnality against Leon Bohtnos and Jacinto Colocho, for the alleged part Jhey took in the murder of said Casimiro Henriquez, was not sufdcient in law to justify committing them for extradition. In re No. 11,098: That the evidence of criminality against Antonio Ezeta, for the robbery of the International Bank of Salvador & Nicaragua, was sufficient in law to justify his commitment on said charge,but that said crime was of a political character, and therefore not extraditable under article 3. of the treaty. In re No. 11,099: That the evidence of criminality, upon the charge of murder of one Tomas Canas, against Antonio Ezeta and Juan Cienfuegos, was sufficient in law to justify their commitment for extradition, but that said cJ,"ime was of a political character, and therefore not extraditable under article 3. of the treaty. The application to commit Juan Cienfuegos for extradition, on the charge of atiempt to mur,der one l\ndres Amaya, was granted; the evidence of criminality amountipg.. 1Jo probable cause of.the fugitive's guilt, and the offense not being of a political character. PIerson·· & Mitchell, for the republic of Salvador. Gharles Page, HoratioS. Reubens, and Gonzalo De Quesada, for defendants. Charles A. Garter, U. S. Atty., for the United States.
MORROW, .District Judge. These matters are before me, sit· ting 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 therefugees-o-First, that there was not sufficient evidence amounting to probable cause to justify the holding of the ac· cused; 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 Oen. Francisco Menendez was the president, and Dr. Rafael
IN BE EZETA.
977
Ayala vice president, for the term commencing March 1, 1887, and ending March 1, 1891. On the night of June 22, 1890, Gen. Carlos Ezeta appeared at the city of San Salvador, the capital of the republic, at the head of an armed force of 600 men, and proclaimed a revolt against the then existing government President Menendez was giving a banquet at the time, celebrating the anniversary of his triumphant occupation of the capital five years before. In the tumult that followed, he was either slain by his political or he died suddenly from the effect of the excitement caused by the hostile demonstration. The government of Menendez was over· thrown, and Gen. Carlos Ezeta proclaimed provisional president by the army. He immediately assumed the reins of government, and, with the assistance of his brother, Gen. Antonio Ezeta, proceeded to establish his executive authority,-not, however, without serious opposition. He was called upon to face an armed demonstration made against him on the part of Guatemala, and to encounter resistance at home, headed by Gen. Rivas, supporting the claims of vice president Ayala for the constitutional succession to the presidency. The Ezetas, however, were successful in their military operations. In a sanguinary struggle with Gen. Rivas for the capital, the latter was defeated, and afterwards shot as a traitor. Through the intervention of the members of the foreign diplomatic corps, Guatemala was induced to agree to peace on condition that the people of Salvador should be allowed a free expression in the choice of their president; aJ;ld, in September, 1890, Gen. Carlos Ezeta was elected provisional president of the republic, and, on the first day of March, 1891, he was duly installed as president, with Gen. Ant<'nio Ezeta as vice president, for the full term of four years. Gen. Antonio Ezeta afterwards became commander in chief of the army. Reference to other disturbances that followed will not be It is sufficient for the present pnrpose to say that the Ezeta government managed, by the use of vigorous measures in suppressing opposition, to continue in power down to the time of the occurrences which have been described in the testimony, and deemed relevant and material in the present examination. 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 unsuccel!'lsful 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 engagev..6.2F.no.1l-62 .
978
FEDERAL REPORTER.
,menttbAttook place on May 3d"Gen. Ezeta was wounded, and Glen. 1301a.n08,became commander of the army. On May 23d, Gen. Anhaving recovered from his wounds, resumed command, and'thereai;ter directed the operations of the' government forces in that department. '. In the meantime the revolution had gained strength in other departments of the republic, under the leadership of GenFRafael Antonio Gutierrezj who has since become president; and on June 4, 1894, Gen; Carlos Ezeta fied from the capital, and, taking 'passage in a vessel at La Libertad for Panama, he proceeded (so it is reported) to New York, and thence to Europe. .Gen. AntonioEzeta thereupon became the acting president. On June 4th he and ihis 81"D.lY retreated in the direction of Santa Tecla, or New SanSalvador,arriving there on June 5th, and on the 6th the retreat waa continned to the port of La Libertad.' Between April 29th and June 6thiR number of battles and skirmishes took place between thecontepding forces, tn,which several hundred on both sides were killed and wounded. The force under Gen. Antonio Ezeta numbered at one time about 1,700 men, but it waa reduced by desertion.s, and losses in killed and wounded, toa few hundred, when the remnant of the army, under the itnmediatecommand of Gen. Colocho, reached La Libertad. While these operations were in progress the governmentQfthe United Stateesdispatched the United States steamer Ben· nington: from California to Salvador, to look after the in.terests of citizens of the United States in that country during the revolution. Thisvel!lsel was at the port of La, Libertad when Gen. Antonio .Ezeta and: his officers and men. reached that place. Among those officers,who had taken. part in the military operations on the part of the government undet, Gen. Antonio Ezeta,' were Gens. Bolanos and Colocho, preriously mentioned; Lieut. Col. Juan Cienfuegos, on the staffaf Gen. Ezeta; and Capt. Florencio Bustamante, field com· missary. ,Upen the arrival of Gen. Antonio Ezeta at La Libertad, he pfoeeeded to the American consulate, and requested asylum on board until the arrival of the steamer San BIas, Panama. The message was signaled to Capt Thomas, the commander of the Benningt(m, who granted the request, and Gen. Ezeta tmmediatelyproceeded on board the vessel. Later on in the, day, 16 others of Gen.. Ezeta's company, including the officers I have named,went alongside of the Bennington, in a Iighter,.,andapplied for· asylum; This request was at first refused, on accoUint.of a lack of accommodations on board the vessel; bUt, the pursuing revolutionary forces threatening to foHow the fugitives under the beam of the Bennington, they were taken on board. Three daysJater the steamer San Bias arrived at La Libertad, when the commander of the Bennington 'proceeded to make arrangements for the transfer of the fugitives,on board that vessel. The arrangementswere interrupted, however, by commissioners representing the succe8$fnl revolutionary party, requesting that they should have an opportunity to make a demand for the extradition of the fugitives on charges of murder, arson, robbery,and rape. The fugitives were accordingly detained on board the Bennington, and, in riew of the disturbed condition of affairs in ;Salvador, this concession was
!N RE EZETA.
979
by. Capt. Thomas a courtesy to the new government, of some consequence, in the favorable influence it would probably have upon the authorities in securing the safety of American citizens residing in that country. Upon the arrival of the next vessel at La Libertad, bound for Panama, the fugitives again requested permission to leave the Bennington, that they might take passage on the departing steamer; but the request was refused by Capt. Thomas, under instructions from the secretary of the nary. The Bennington remained at La Libertad until July 25, 1894, during which time no extradition proceedings other than a demand by the government of Salvador for the surrender of the fugitives appear to have reached Capt. Thomas. The vessel then proceeded north with the five fugitives on-board, who have been the subject of these proceedings. What became of the other] 2 is not disclosed by the testimony in the case. The Bennington arrived at Acapulco, Mexico, July 30th or 31st, where a request on the part of the fugitives to be allowed to leave the vessel was again refused. Leaving Acapulco August 2d, the Bennington arrived off the harbor of San Francisco on the 14th of August. The government of Gen. Gutierrez, as provisional president ·of Salvador, was formally recognized by the president of the United States on August 3, 1894, by the reception of Dr. Horacio Guzman as envoy extraordinary and minister plenipotentiary of the republic of Salvador. This last fact may be, in part, an explanation, and a sufficient reason, why the fugitives were detained on board the Bennington until the arrival of the vessel at this port; but, however that may be, that question is not before me for consideration. In passing upon the plea to the jurisdiction, I declined to enter u{)on any inquiry as to the conduct of the navy department in bringing the fugitives to San Francisco; The fact that they were found by the marshal in this district was, in my opinion, sufficient for the purpose of this examination; and I now only refer to this previous history, that the charges against the accused may be considered in the light of all the surrounding circumstances. The authority for the present examination is derived from the statutes 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 recite5 that an application had been made in due form, to the proper authorities for the arrest of Antonio Ezeta, Leon Bolanos, Jachlto Colocho, Juan Cienfuegos, and Florencio Bustamante, charged with the crimes of murder, robbery, and arson. The certificate further recites that it was alleged that the parties named were fugitives of Salvador, and were helieved to be within the from ,the jurisdiction of the United States; that it was proper they should be apprehended, and the case examined in the mode provided by the laws of the United States; that those facts were certified to the end that the evidence of the criminality of the accused might be heard and co:p.sidered, and, .if deemed sufficient to sustain the the same might be· certified, together with a copy of aU the proceedings, to· the· secretary of state, that a warrant might
980
FEDERAL RltPORTlI:R, vol. 62.
Issue for their surrender, pursuant to said treaty stipulation. In oonforrillty with this mandate, Eustorjio Calderon, the consul of Salvadorat,this port, on the 22d day of August, 1894, filed five separate complatntsagainst the accused, charging JuanCienfuegos with an attempt-to murder one Andres Amaya on January 3, 1894, in front of the house occupied by said Amaya as his residence in the city of San Salvador; Leon Bolanos and Florencio Bustamante, with the murder of four persons, names unknown, on the 29th of May, 1894, in the gulch of Las Pulgas, in the canton of Primavera; Antonio Ezeta, Leon Bolanos, .Jacinto Colocho, Juan Cienfuegos, and Bustamante, with the murder of one Casimiro Henriquez on the 3d of June, 1894, in the village of Coatepeque; AntonioEzeta, with the robbery of Jos6 Ruiz and Evaristo Ambrosy, constituting the firm of Ambrosy & Ruiz, having in charge the agency of the International Bank of EI Salvaddr & Nicaragua, of the sum of $2,584, on the 3d (5th) of June, 1894, in the city of Santa Tecla, or New San Salvador; Antonio Ezeta and Juan Cienfuegos, with the murder of Tomas Canas on June 6, 1894, on the public road leading from the city or town of Santa Tecla, or New San Salvador, to the city or town of La Libertad. Upon these complaints, warrants were issued, and the accused brought before me for examination. After the testimony on the part of the government of Salvador had beeD introduced, it appeared insufficient to hold Jacinto Colocho on the charge preferred against him, and accordingly, on motion of counsel, he was discharged. Testimony was thereupon introduced on the part of the remaining defendants, and the question now is whether, upon the facts proven, and the rules of law applicable thereto, they, or any of them, should be held for extradition, under the terms of the treaty. For the purpose of ascertaining whether the evidence sufficiently establishes the charges of crime against the accused to justify me, as a committing magistrate, in holding them for extradition, it becomes necessary to determine at the outset the degree of proof required to support the accusations for the purpose of these proceedings. Section 5270 of the Revised Statutes of the United States, relating to extradition, provides that: "It, on such hearing, he [the committing magistrate] deems the evidence sufficient to· sustain the charge under the provisions of the proper treaty or convention,heshall 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 shall be itelivered up only '11lPon such dvidence of criminality as according to the of the. where the fugitive or person so charged shall be found would justify his or her,lilpprehension and commitment for trial if the crime. had been there <:ommitted." Section 1014 of the Revised .the United States, relating to the arrest of offenders with any crime or offense against the United States, pro.that they may be arrested and imprisoned, or bailed, "agreeable to the usual mode of process against offenders in such
981
The defendants having been found within the territory of the state of California, the law of this state must furnish the rule of procedure in this examination. The Penal Code of California, under the title relating to proceedings in criminal actions, provides as follows: "If, after hearing the proofs, it appears either that no public offense has been committed, or that there is n()t sufficient cause to believe the defendant guilty of a public offense, the magistrate must order the defendant to be discharged, · · · ."
Section 872 provides: 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 mentione<1 (or any offense accol."ding 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. "If, however, it appears from the examination that a public offense has been
,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 the 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 committed 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 this 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 he were on trial before a petit jury would, if applied to cases of extradition, be 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 evidenceof 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, Rev. 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
FEDERAL:REPORTER,
tJte .aC<}use.d .' tor. tr\aL, :' ThecontratY. view ·wol)ld to the concluSIon that the be UP, trie!iln the country In whichtlle ofi'enEle wlq!l.' country where the witnesses on both .silJ,es are presumptlvtHyfo be' found,-but should be tried in the country- In which he may: eto -be found. Such a result woUld entirely destroy the object of such treaties." .
To the same eff,eCt is thedt>ctrine declared in He Wadge, 15 Fed. 332; in Rel'tlllcdQJ,1nell, Ii 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. Qt. 1240, Mr. Justice Miller, delivering the opinion of the court in. that case, said: ' "The subject ot whli.tproot shall be required tor the delIvery upon requisItlon ofpartlescharged with crime Is in article 1 of the treaty [with Mexico], in regard to which ifisllrovIded 'that·this shall be done only when the·facf the commission of the crime shall be soestabUshed as that the laws of the/country in which the fugitive or the pel'Son 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 RevisedSt8.tutl'!s above recited, we are of the opinion that the proceeding before the cOU;1mlsaioner is ,not to be Pegarded as in the nature of a final trial by Which the rprisonercould be convicted or acquitted of the crime charged agulnst him, but rather of the ch.aracter of those preliminary examinations wbich take place every day in this country before an examining or committing magistrate' for the purpose of· whether a case is made out which will jnstify the holding of the accused, either l>Y imprisonment or under bail, answer to an indictment, or other proceeding, in whicb be shall to be fimUlYtried upon the cbarge made againstbim." ,. , f
In ''!:he'etamination, therefqre, of persolls charged with being fugitives from justice under a treaty stipulation such as we find in the present case, the evidence of criminality must confo'rIn to, and be weighed and jndgedby, the laws of this country, and particularly the.law,ep! the place where .the accused:.is found. _The evidence to justify. hQlding the accused for the action of the exemitiye.upon enrrender, P:eed not be such as would be required at the trHtl ,of the accused, bqt must be such evidence as ordinarily obtains atapreliminary exa+nination, 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, t4i:tt the person accusedis guilty of the offense with which he is chargelI. . The first charge, in point of time, is that against Juan Cienfuegos, with attempting to murder one. alias La Chucha; lIe is AndresAmaya On the 3d of January, 1894, at the city of San Salvador, in front of the house used by the said Amaya 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 Cienfuegos; and a statement by Cienfuegos himself. Thedeposition of Quijan,o,and the depositions, so called, of Amaya and Cienfuegos, taken on the 4th day of January, 1894, the day following the alleged attempt to murder. The statement of Andres Amaya
983 is briefly, that, at 10 :10 o'clock on the evening of the 3d of January one Manuel Casin offended him at his own house, where he resides; that Casin was accompanied by four or five other persons; among these was Juan Cienfuegos, whom he recognized perfectly well; that this group were disguised; that they discharged their revolvers at him just at the moment he happened to be on the porch of his house, . conversing with one Don Mariano Moran; that Oienfuegos was the one who fired the first shot, pointing directly at the declarant; that Immediately afterwards the other persons discharged their revolvers; that he threw himself quickly on the floor, the last shot passing near his ear; that they then left; that Manuel Casin, about six days previously, struck him from behind with a revolver, discharging a shot at him without injury; that Casin, for several days, has been waylaying the declarant, to kill him; that the emnity which Manuel Casin bears towards him originated in the declarant having, as departmental revenue collector, prohibited him from entering on horseback inside a building occupied for the management of the office and for the deposit of distilled spirits, and from trampling on the guard. Thomas Quijano deposed that while on duty as a police officer, near the residence of Amaya, he heard the report of several shots; that he proceeded quickly to that place, and saw three persons running, whom he did not know; he found Cienfuegos and another person together; that the person in company with Cienfuegos succeeded in making his escape; that he managed to capture Cienfuegos; that Cienfuegos was carrying a revolver in his hand, which he handed to him; that three shots had been discharged from it; that Cienfuegos confessed to him at that moment that those shots had been fired by him at Don Andres Amaya; that he cannot identify the person in company with Cienfuegos; that he delivered the revolver to the police, and gave an account of the matter. The record which constitutes the letters rogatory requesting the surrender of Cienfuegos also contains a statement to the authorities made by Cienfuegos upon his arrest. This statement is designated at the conclusion as a deposition. He stated that he was on his way to the theater in company with Don Manuel Casin, Dante del Papa, baritone of the present opera troupe, Antonio Guicho, a gentleman named Tierno, and also another person; that when they were passing opposite the porch where Andres Amaya resides the latter was in the company of another person, whom he was unable to recognize; that Amaya directed a shot from his revolver at the group; that Manuel Casin instantly fired a shot, and afterwards two more; that the declarant fired two shots at the said Amaya; that he noticed Amaya close the porch, instantly; that all his companions scattered; that he alone appeared before Thomas Quijano, tb.e first officer of. police, and handed him his revolver, and told him that he had fired two shots at Amaya; that he saw that Amaya saved himself from the shots . by placing himself behind the end column of the porch; that all of his compani()ns wore cloaks, except Casin, who wore a sort of an overcoat, and the declarant, who was dressed in citizen's clothes; that during the two days prior thereto he was constantly escorting Don Manuel Oasin, by order of Gen.
984
FEDERAL BEt>ORTER,
Antonio'Ezeta, with instructions to guard Manuel Casin so that no harm him, and especially in consequence of a misunderstanding which existed between Manuel' Casin and Andres Amaya; that he ,fired the shots at Sefior Don Andres Amaya with a view of ' defending Don Manuel Casino Upon this evidence of criminality, the record shows that an order was made by the court No.1 of first instance, at San Salvador, on the 5th day of January, 1894, that the suspected party, Don Juim Oienfuegos, 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 appears, 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 Juan Oienfuegos 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 Oasin, 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 Oasin, whose person he had been detailed to guard by the order of his chief officer, Gen. Antonio Ezeta; that his orders were to dress iIi citizen's clothes, and to place himself at the order of Manuel Oasin, 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 nfter that he was rearrested by order of President Oarlos 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 oonveyed by the chief of staff from President Oarlos 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 tha,t in iall ,of the depositions where a witness, not a party interested, ·is sworn, the following recitaloccUI's as to the administration of the oath, 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.
m
ItJ!l EZET....
986
In tlie statement of Andres Amaya the introduclory recital is in the following form: "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, decJa.r1ng." etc.
That of Oienfuegos reads: ''There being present a man mentioned In this proceeding, to whom I Impose the obligation of the truth, upon being interrogated by competent auth<:>rity, and he promised to do so, saying," etc.
A perusal of ail the depositions introduced 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 shaH have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any deposition, warrant or other paper 01' 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 be 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 01' other papers ilJ 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 Oienfuegos. The deposition of the police officer, Thomas Quijano, which is admittedly: free from the alleged defect, serves, in my opinion, to establish til
FEDERALREPORTER,'vol.
62.
guilt, sufficient:to justify me inh91ding the defendantfor extradition; certainly so, in view of hi!i.admissions. ,A.l&the,a<:(wl.tS committed four months befl?"re the revolution began, it,ilii,freefrom any political aspect, so far as the act charged itself is concerned; and the only question to be determined is whether the evidence of criminality amounts to probable cause of the guilt of the accused. As stated above, the admission of the as it i(contained in the record and as made at the hearing, that he shot at Amaya, removes any. doubt. upon this question: . It appears to. me that, even in the absence of the admissions! of the accused; th'eevidE!Dce of criminality presented is suffi,cieD.t'to'amouIit to probable cause. His justiftcation-that he was merelY'Qcting in obedience to the orders of his superior officers in protecting the life o'fOttsin-cannot here be considered. What thatdefehse'\VouldaItlount to upon the trial of the case in Salvador cannot now be determined,nor is it necessary. The fact that he ftredtheshots in defense of himse-U:and Oasin is obviously a matter of defense, to be presented in the tribunals of the republic of Salvadol'upon a full hearing of the case, where all the witnesses of the affair may be secured. The testimony for the prosecution fact the act cha.rged was in fact committed. And as tbis evidence amc;rtlnts to probable cause, the inquiry need go no further on this preliminary examination, unless there is some explanation to be made which does not contradict or impugn the testimonjon the part Of the prosecution, but serves to explain it so as to show that the consequence otherwise deducible does not follow. . This I u.nderstand to be the 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 the defendant contends that as Cienfuegos was released by.' order of his superior officers, Md has never been prosecuted, or.· any steps taken against him, for the part he took in the alleged' attempt to murder Andres Amaya, until after he had taken refuge on board the Bennington, this revival of the prosecution is nothingri:l:ore or less thaJ;l an effort on the part of the present government 6fSa]vador to secure the person of the accused for the purpose of wreaking their vengeance on him for the part he topk against them in the late War. This argument is not, perhaps, destitute offorce) but it is nota matter of which I can properly take cognizimce,.in view of the other features of this particular case. FIe was not tried for the offense, nor was he pardoned, but, being discharged ,from prison by order of }lresident Don Carlos Ezeta, he appears to have enjoyed a privilege conferred by executive authol'ity only by judicial authority in this equivalent to, an country, permitting to be discharged from custody on his own recOgnizance. If this is a correct interpretation of the proceedingg.· s'tated in the record, then Col. Cienfuegos has can· tinued subject to arre!lt' and .trial upon this charge. If, as is claimed, he is being extr:aytited for a political purpose, that is a inatter which can very p'ttiperly be called to the attention of the executive when hecomestb:review my action.
987
The next charge Is that against Leon Bolanos and Florencio Busta'mante, for the hanging on the 29th of May, 1894, of four unknown per,-sons at Las Pulgas ravine. The accusation rests on the deposition of ,one witness, named Leopold Maza. This depositionwRs taken on June 24, 1894. The witness deposes ''that what he knows from ocular ,evidence only is" that Florencio Bustamante, alias Monkey in the Hole, by order of Leon Bolanos, hung four persons, in Las Pulgas ravine, at the end of May, at 11 o'clock a. m.; that he does not know the names of these persons, but he knows that they were from the V'Olcano of Santa Ana. The witness then proceeds to assign a motive for the hanging, which he says was that some soldiers had found these persons hidden in certain little houses located in Primavera canton; that Leon Bolanos carried away said persons to a house situated in Las Pulgas ravine, to take their depositions, and, 'said persons having declared that they had concealed themselves in consequence of not having taken' part either for or against the revolution, Bolanos ordered Bustamante to hang them. The witness then goes on to state what took place at the hanging. He -says that Bustamante took these persons out of the house, carrying one of them bound by the neck; that, having come to a post in the yard of the house, Bustamante tied the lasso, and dragged him by his feet, in order to hasten the execution; that he accomplished their death; that Bolanos was present. The witness then continues his testimony by making statements intended to implicate Antonio Ezeta and the defendants connected with this particular charge with the commission of many othel' offenses, .and with general lawlessness. These latter statements are manifestly based upon public rumors, and are therefore hearsay. Although the witness stated at the close of his deposition that one Rodrigo Escobar and others, whose names he did not recollect, could testify in the matter, yet the deposition of Rodrigo Escobar, contained in the record, makes not the slightest allusion to the hanging in question, and the testimony of no other witness bearing ,upon this accusation is produced. It may be said that, in the deposition of Carmen Quinteros, reference is made to this charge, but she bases her knowledge of the facts she relates upon the publicity of the affair in the canton. Her testimony is consequently without value. I must therefore rely upon the testimony of this solitary witness, Maza, to ascertain whether probable cause of the guilt of the is made out The motive testified to by him, if indeed such evidence could be accepted as against these defendants, is at best but hearsay, for the witness is very careful to say at the out,set of his testimony "that what he knows from ocular evidence only is" that Bustamante hung four persons by order of Bolanos. This reservation on the part of the witness would limit his knowledge of what took place to the hanging itself, and it is difficult to understand, without some explanation, how he could know, by ocular means only, that an order was given at all, or what the motive for the alleged hanging was. Assuming that he did have such knowlit must have been based upon information received from {)thers, and, being hearsay, it is not admissible against Bolanos.
988
I'EDEBAL BBPOJmIIB,
ThilH the only evidence in the testimony of this witness implicating Bolanosip any way with the alleged murder of these four The factt(bat Bolanos may have been present at the alleged hanglDgJ in the absence of any testimony, other than hearsay, that he took: any part or contributed, in any way to the ex.ecution, is clearly not sufficient. The evidence contained in the deposition does not, in my judgtnent, so connect 'Bolanos with the alleged hanging as to warrant me in saying that I ha'Ve good reason to believe that he is probably guilty. While the testimony as to Bustamante is more speciflcand certain, yet, taken aea whole, it is also far from being sati.factory. I am not inclined, in view of the inconsistencies and palpable hearsay testhnony contained in the deposition, to place much reliance on theuncorrobomted testimony of this witness. The fact cannot be overlooked that although he stated that one Rodrigo ,Escobar and whose names he did not recall, could testify in this matter, the' former person, despite the fact that in his deposition he takes a wide latitude in making charges against individuals, and as to the character of crimes committed, yet fails to say a ,single word to substantiate the witness Maza as to this charge. In view of the magnitude of the crime, it is singular that, if four persons were in fact hung upon such slight provocation, more satiSfactory evidence was not produced. A committing magistrate woUld not be justified, in my opinion, in holding for extradition these accused persons, on so serious a charge, upon such unsatisfactory evidence. The accused deny that they had anything to do with· the hanging of four IQ.en, or any men or man, at the time and place indicated,' and under the circumstances detailed. They testify that a battle took place on that day, that there were some of their soldiers killed and wounded, but that they captured no priSODe'rs. It may be observed that the testimony of the witness Maza was not taken until the 24th of June, 1894, nearly a month after the alleged hanging took place, and nearly three weeks after the accused had sought refuge on board the Bennington. T)le further fact that the identity of the four persons said to have been hung was not established tends to the conclusion that the whole affair is in'Volved in too much uncertainty to warrant a commitment of the accused for the offense charged. But, whatever may be the actual facts concerning this affair, hostilities were in progress between the. governmental and revolutionary forces in the vicinity, of'Las Pulgas ravine at that time; and the testimony shows that the acts of the accused, assuming that the testimony of this witness is true, were associated with the military operations at that place. It remaitts,'therefore, to determine that feature of the case, which will be don(:lat a later stage of this opinion. ["he third· charge is that against all of the fugitives, viz. Antonio Ezeta, Leon Bolan08, Jacinto Colocho, Juan Cienfuegos, and Florencio Bustamante, for the murder of one Casimiro Henriquez, on June 3, 1894J 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 1;4e. case will not be further considered.
989
It appears, from the deposition of Apolonio Henriquez that on June 3, 1894, one Gen. Emilio Avelar, an officer undel" Gen. Ezeta, came to the deponent's house, and took his son away a prisoner; that, on arriving at the vanguard of the army, he sought to shoot his son; that Gen. Avelar was dissuaded from his purpose by the opposition made by the physicians in charge of the ambulance; that Gen. Avelar thereupon turned his son over to Gen. Bolanos, and that the latter ordered that he be delivered to Gen. Ezeta; that while on the way to Gen. Ezeta's headquarters, the prisoner was maltreated by soldiel.'s and women; that upon reaching Gen. Ezeta's headquarters the latter, on being told that the prisonel.' was a spy, struck him, and ordered him to be hung; that the women begged the general to deliver the prisoner ovel.' to them, to do as they pleased with him, which request he granted; that the prisoner was then taken to the plaza of the town of Coatepeque; that on the way he was severely maltreated; that he was hung at the plaza; that Cienfuegos, Bustamante, and anothel.' person gloated over what they had done; that Bustamante, enraged at the corpse, cut the rope, in order to see it fall, and Cienfuegos, supposing it still had life, directed several shots from his revolver into the body; that many persons can testify to all this; that there was no cause for the execution of his son, since he was neither a participant in the revolution nol.' in the forces of Ezeta. As it does not appear that the deponent testified as a witness under oath to the matters he undertakes to narrate, and manifestly could not have had the knowledge to so testify as to all the particulars related, his deposition cannot properly be considered as anything more than a statement of the complaint of an aggrieved party. The witness Anastacio Ruano testifies that Ezeta, believing it true that he (Casimiro Henriquez) was a spy, as well as enemy, ordered him to be hanged in the public plaza, in carrying out which order, Juan Cienfuegos, Flol.'encio Bustamante, and one Fernando Salguero took part. Mau· ricio Escobal.' deposes that he saw Casimiro Henriquez being carried a prisoner by Gen. Emilio Avelar and the colonels,Juan Cienfuegos and Florencio Bustamante, accompanied by soldiers and women, who were stoning and clubbing the prisonel.'; that they directed their steps towards Ezeta's headquarters; that about a quarter of an hour later the same party retraced their steps, going towards the plaza, and then to the middle of it, where they hung Henriquez on a public lamp-post; that the authors of the deed were Florencio Bustamante, Juan Cienfuegos, and one Fernando Salguero; that declarant saw Juan Cienfuegos discharge shots into the body of Casimil.'o Hellriquez. Horacio Olmedo testified that Ezeta gave the order to the soldiers who were conducting Casimiro Henriquez as a criminal that they should do what they pleased with him; that shortly after that he was hung in tpe plaza of Coatepeque; that when nearly dying he was lowered from the post, and Cienfuegos fired two shots at him. Rodrigo Escobar deposed that he heard and saw, also, that Antonio Ezeta gave the order the evening of the 3d of June, 1894, to hang Casimiro Henriquez, upon being told that the latter was of the advance guard, and he delivered him to
J'EDERkL REPORTER,
:
to do as with him, he away to be hung; that the declarant did not wItness tiihgi'Dg.: 'iFntilclsoo· MerienWlez testified: , I ':
"That among the many crtmes perpetrated tn Coatepe-que lI'ltring the time abolitwhlt!ti hets asked, in consequence of lils having beeD. a1resident of that '. town.. he :wItnessed .only the death imposed upon Casimiro Henriquez, by hangthe present month [June], at about Ing, in ij}ePIMa of said six o'clock;'..... Il?r; the exeeutlOll was given, as pu1;lllcly known, by Antonib. ,wzeta.. Butdeclarantdi4 not give his attention to whom the perpetratdli;l <>f the crime were." "
"l
t "f::: .
I
"
,
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,'
, ' , .'. "
,"
all testify they had nothing 'Yhatever to do with the hanging Qf Casimiro and that not even witqeSB the occurrence. It i$ not that AntoDlo Ezeta was ,His connection with the alleged murder :Was in giving the, Qr<Jer and turning him over to the soldiers and that theYIPight acc9mplish that design. One of the for the government ,of Salvador testifies positively that he:hear(l'and saw the C)l;der given. testified,. in a,nswer to the questl(mthat hedetltil the circumstances under which he saw OasimiJiO Henriquez on. that day, that: ''The.' forces that capttll'ed him, [Henriquez] took him, and', carrledhim Coaf.epeque. Upon hejl.rtng.the noise of thepeop!e, I inqui@ Il:lJout tile matter, and learned that he had been captured, and was being ca'rrled throllg'h the streets. .Subsequently', I was informed that he had been klllecL Probably, he was hung; Q.Dld you see him hung? A. No, sir, I didnQt. I saw him when he was dead; Q. Did you order him to be hung? A. No,slJ7.,J did not; but, I will state that I beUeve he was well killed, he was, a rebel"
Oienfueg6s claims that when the hanging took place he was with Gen:Ezeta at the latter's headquarters. He admits that he heard the tumnlt of the soldiers and women; that they were shoutthe traitor!" and that tbey were carrying some one, whom he could not see; andthat the crowd finally turned towards the plaza, which, he testifies, was about four blocks distant ,from Ezeta'sheadquarters. 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 , claimedotl .the stand that he did not even see the execution, but subsequently in his testimony he contradicted himself by admitting that lie did witness it. He claimed that he did not see the hangibgbecause at the time he was busy with his oo.rts stationedilt the plaza; but, as the execution took place on the plaza itself,hemust have witnessed it, as he subsequently admitted. 'But this testimonyon behalf of Cienfnegos and Bustamante does not . offset the positive evidence produced by the government of Salvador to tbeefYect that Cienfuegos and Bustamante were both seen with the popnlace on that occasion; that they, with others, had the prisoner incnstody; that they actually took part in the hanging, , the part which each of them took in the execution being de'Stlrlbed by the witnesses in unmistakable language. F'rom 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
991
believe that Antonio Ezeta, Juan Cienfuegos, and Florencio Bustamante are guilty of this crime as charged. Whether the act charged was a political offense, within the meaning of the treaty, will be considered hereafter. The only testimony I have been able to find in the record tending to.QO!['fiect Gen. Bolanos with this affair is that of Anastacio Ruano" mat Henriquez was delivered, by order of Gen. Bolanos, to Gen; Ezeta, and the testimony of Horacio Olmedo, "that Gen. Leon 13olanos, baving taken part in the affair, the populace, in· order that the execution should be 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 accusedteetifies that on June 3d, the day Henriquez was hung, he was in comml:illd of the 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 he was informed about it at 6 o'clock of that day. He denies having had any connection whatever with the 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 TecIa,or New San Salvador, on June 5, 1894. The depositions of three witnesses were introduced in evidence on the part of the government of Salvador. The principal witness is one Jose Ruiz, who testifies to all of the matters connected with the alleged robbery. His deposition is as follows: "The agency in this city of the International Bank of Salvador is in charge of the house of Ambrosy & Ruiz, located in the same, of which the deponent is a partner; that in eff('ct, on the 5th day of this month [.Tune], about one o'clock in the afternoon, there arrived, where the deponent was, an officer accompanying hiS clerk, Senor 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 the deponent, said to bim that, pursuant to order of the senor president of the republic, Don Antonio Ezeta, that he (the deponent) should hanu over to him ten thousand dollars of the funds 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 tbe 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 opeIjed, the latter, the said colonel, and the officers indicated, extracted the money which it contained, which they counted themselves, in presence of the deponE'nt, and it reached the sum of two thousand five 'hundred and dollars, which they carried away to the said Ezeta, who was in one of the habitations or apartments of the Gran Hotel, the deponent having accompanied them, by order of the same colonel; that EZE'ta, after receiving the said sum, ordered called the paymaster of his 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 01'derof the,sald Ezeta, and the deponent remitted then the said receipt to the
992
FEDERAL REPOBTER,
boardOt ctlreetors of the bank (Geren'cla), furnishIng ·It an account of whail had 0CC1U'1"ed; that he (the deponent) does not know the name of the colonel. IlOr that of P7 of the other officers to' whom reference has been made, and that the folloWing persons can depose In the matter, to wit, Don Evarlsw Ambrosy, .hIs partner, who arrIved at the time the. money was counted, thl!l said clerk, and the paymaster, SenorQU'ell; deponent <1eclarlng that the sum lLl1uded 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, partner, and Enrique Orellana, the clerk in the bank, both corrobotRte the . witness :&uiz in all the important particulars of' fact. But it is objected by counsel for defendant that the facts as proven do not establi$h the crime of robbery, defined in the treaty. Article 2, subd. 4, 9f 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, bas not been proven. The point is also made that there was no "absolute intimidation," only an "implied intimi· dation." 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 per· son" 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." v. Jones, a Wash. C. 0.215, Fed. Oas. 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 taking 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 it by intimidation he is compelled to open his desk. from which his money Is taken, or to throw down his pmse, which the ro})ber picks up,-It is robbery, as much as It he has put his hand Into the pock&'t ot 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, 88 given by Mr. Justice Wasbington, and that contained in the treaty, needs no comment. The definitlonin the American & English En· oyclopedia ()f Law (volume 21, pp. 414, 424), further confirms the COl'rectness of the construction placed upon the definition of robbery 'contained in the treaty: "Tooonstitute robbery, the taking must be trom the person of the party But anything taken from the presence or view of the party, or from
·
991 Ids proteetfon, Is constructtvely taken trom his per8On." 1 Hale, P. O. 533; 2 1l8Bt, P. C. 707: Reg. v. Selway, Cox, Cr. ClIB.235: State v. Calhoun, 72 Iowa, 'll2, 34 N. W. 194: Olements v. State, 84 Ga. 660, 11 S. E. 505.
In my opinion, it is enough, therefore, to bring the ollense 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 considered when I come to treat of the political phase of the ollenses 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 Cienfuegos, 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 001. 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 that 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 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 Cllllas did not shoot. And in this oonnection the testimony of one Fernando Oarranza, 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 Amatlllo, Col. Tomall Canas approached near to Ezeta, and told him that the enemy wanted ·his head; that Juan Cienfuegos reached to where Canall stood, and wanted to take his revolver from his pocket, which he obtained; that, after the words which Pallsed between Canas and Ezeta, the latter fired a shot at the tonner, and Cienfuegos tired 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 v.62F.no.11-63
..
revoliem 'Itt' in el'\d9ce 6n th&patt' of llnts' that '01enlueg08dla lIlake,iW.' to prevent Canlt3 "troll!-, touching Gen. Ezeta, and it is probably to this circumstance the witDess'means to refer. The defendants admit;tbat they shot at and killed Tomas CanaB,'but they justify their action on the ground of self·defense. It is claimed by, them that Tomas Canas had been traitorous to his trust as an officer under Gen. Antonio Ezeta, and that. he, had surrendered, that very morning, the ,soldiers, ammuni· tion,' and military accouterments under his cODlmand; that when he came up;:to Ezeta he' appeared to be somewhat intoxicated; that he exclaimed to Gen. Ezeta, "GEmeral, Manuel'Rivas wants your that thereupon he seized Gen. Ezeta by the throat, and also made is. movement if to draw his revolver; that Cienfuegos made an attempt to Canas from drawing his revolver'; that GEm; Ezeta immediately drew his revolver,and fired one shot at Canas, and Oienfuegos followed with three other shots; that Canas half turned his :horse, and fell on the roadside, where he was left by Gen.1:Ezeta and his staff. It is objected that the facts proven do Dot,:'ln any view, tend to establish the crime ofniurder, as defined by the treaty and the law of Salvador. In article 3 of the treaty the crime of murder is de1bledas follows: ''Murder, com· prehendingthe crimes designated in the penal oodesof the con· tracting parties by the terms homicide, parricide, assassination, polsoning, and infanticide." It is contended that ''homicide, par· ricide,": ete., must amount to the crime of murder, to come within the treaty,-in 'other words, that the extraditable offense is limited to known in our law as "the killing' ofa human being, with malice aforethought,"-or, if we: look to the law of Salvador, we must still find ,the facti sufficient 1» bring the case within the offense amounting to m:urder under the law of that republic. The Penal Code of Salvador provides as follows:
"ArtlcleSOO. Murder is homicide committed with premeditation, and under any oneot. the following circumstances: First, with perfidy or breach of trust; second, t()rlL or promise ot reward; third, by of.llood, llre, or poison. The crime of murder wUl be punishable with the penalty ot dea.th. "Article 861. Homicide. He who kills another with premeditation, and without any 'of 'thec1rcumstance8' enumerated in the preceding utlcle, or under some ODe Oflll1idcireumBtances, and without premeditation, will be punished with the penalty ot imprisonment at har!llabor. In any other case, the penal· ty ot imprillOnment at hard labor shall imposed OD the otrender." "
.'
It is contended that the facts here, proven do not show the circumstances constituting Dlurder, within the meaning of the law of Salvador, and therefore the accused cannot be extradited for that offense, lUld 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 re:tl.nement not justi:tl.ed 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 anGJ
\;
995
obvious meaning in the designation under the general title of "Murder," as ,the crime of homicide is defined in article 361 of the Penal Code of Salvador. As the act involves principles of military law, and in that connection is claimed to constitute a political offense, this aspect of the accusation will be considered in .conjunction with the other political offenses. But, eliminating the question as to whether the act may be regarded as a military act, and therefore coming within the saving clause of political offenses, and considering the act charged merely as a common crime, it is evident that the testimony of the witnesses on the part of the government of Salvador, with the admissions of the defendants, makes out the requisite case of probable cause of their guilt. 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 the 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 her· 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 committing 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
996
FEDERAL,.BEPORTER,
suftlcient the is adischarged. 'If it :is sufficient he is required by this, same section "to certify. the same, together with a copy of all the testimony. taken before him, to the secretary of state, that awarl'ant may issue, upon the requisition of the proper authorities of such foreign government for the surrender of such person, according to the stipulations of the treaty or convention;" the requirement that the testimony shall be certified to the secretary Qf state being for the purpose of enabling executive department to determine whether the fugitive should be. surrendered according to the stipulations of the treaty, and this inquiry would include in the present case the question whether, upon the evidence contained in the record, or found on the files of the department, the crimes chal,'ged are of a political character. The 'case of In re Stupp, 12 Blatch£. 515, Fed. Cas. No. 13,563, is cited to the effect that after a commitment of the accused for surrender, and even after his discharge· on habeas corpus has been refused, the president may lawfully decline to surrender him, either on the ground that the case, iIJ not within the treaty, or that the evidence is not sufficient to establish the charge of criminality; There is no doubt but that the president has this authority under the statute. There is no other review of the decision of the committing magistrate provided, and there are many reasons, arising out of. public policy and the relations of one' nation with another, why this review should be vested in the chief executive. ' But does this authority deprive the committing magistrate of the jurisdiction to determine preliminarily whether the offense proven is of a political cha:racter or not? He is to take all the testimony, and determine its sufficiency with respect to the offense charged. Does not that jurisdiction properly and necessarily include all the elements of law as well as fact? The constitution of the United States declares that treaties are part of the supreme law of the land. Then let us see what the terms of this treaty are with respect to the question under consideration. A.rticle 3 of the treaty prOVides as follows: "The provisions of this treaty shall not apply to any crime or offense of a political character." Article 6. provides a method of proCedure for making a requi· sition for the surrender of a fugitive from justice, and the issuance of a warrant for his apprehension, "in order that he may' be brought before the proper judicial authority for examination. If it should then be decided that, according to law and the evidence, the extradition is due,pursuant to the treaty, the fugitive may be given up according to the forms prescribed in such cases." Plainly, the duty of the judicial authority is to decide whether extradition is due, according to law and the evidence,and pursuant to the treaty. The whole case must be considered by the magistrate, whether the questions invoilved arise out of the law, the evidence, or the treaty. There is no limitation in this respect as to his jurisdiction, and his duty isfullyllndaccurately stated. The executive has a discretion in the provision that "the fugitive may be given up according to the forms prescribed in such cases," but he has no judicial authority to take testimony or make an examination; and it is difficult to understand how he could satisfactorily exercise such authority, if he
997
had If. But It 18 said that all the testlmonyt8 to be taKen by the committing magistrate, and upon such testimony and the records of the state department the president is to determine whatever political questions there may be involved in the case. This is a suggestion as to the mode of procedure, rather than an argument based upon the provisions of the treaty. The case of Castioni [1891] 1 Q. B. 14:9, is cited in support of such a procedure; but that case was based upon the provisions of a statute clearly authorizing the proceedings, and providing: that "a fugitive criminal shall not be surrendered if the offense in respect to which' his surrender is demanded is one of a political character." 33 & 34: Viet. c. 52, § 3. In this case the prohibition is not that there shall be no surrender, but that "the provisions of this treaty shall not apply to any crime or offense of a political character." The prohibition extends to the action of the committing magistrate, and terminates his jurisdiction when the political character of the crime or offense is established. In other words, he has no authority to certify such to the executive department for any action whatever. This a view of the law does not in any way conflict with my decision upon the plea to the jurisdiction, where the political questions there suggested were outside the merits of the case, and had no relation to the criminality of the accused. 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 Juan Cienfuegos for the attempt to murder Andres Amaya does not involve any such question. The other charges do. The testimony shows that they were all committedduringtheprogress 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 duty 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 pnnishment 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 been determined by judicial authority. Sir James Stephens, in his work, History of the Criminal Law of England (volume 2, p. 71), thin,,"s 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 bouse of commons, in 1866, while discussing an amendment to the act of extradition, on which the treaty between England and France was founded, gave this defini·
998 tUm: flAny oftense; committed iathe course Of or furthering, of civUwar, insurrection, or politica:} co:rnmotion." Hansard's Debates, "01.'184, p. . :Jn, the Castioni Case, supra, decided in 1891, the question was discussed by the most eminent counsel at the English bar, andconsidE:!red by distinguished judges, without a defi· nition, being framed that would draw a fixed and certain line be· tweebamunicipalor common crime and one of apolitical charac· ter.''Ido not think," 'said Denman, J., "it is necessary or desirable that we should attempt to put into .language, in the shape of an exhaUstive definition, exactly the whole state of things, or every state of things, which might bring a: particular case within the description of an offense of a politic81 character." In that case, Castioni was charged with the murder of one Rossi, by shooting him with a revolver, in the town of Bellinzona, in the canton of Ticino, in Switzerland. The deceased, Rossi,' was a member of the state council of the canton of Ticino. Oastioni was a citizen of the same canton. For sometime previous to the murder, much dissatisfaction had been felt and expressed by a large number of inhabitants of Ticino at the mode in the political party then in power were conducting the governmerit of the canton. A request was presented to the government for a revision of the constitution of the canton, and, the government having declined to take a popular vote on that question, a number of the citizens of Bellinzona, among whom was Castioni, seized the arsenal of the town, from which they took rifles, alftl ammunition, disarmed the gendarmes, arrested and bound 01' litandcuffed several persons connected with the government, and forced. them to march in froat of the armed crowd,to the municipal palace. Admission to the palace was dethe name(jf the people, and was refused by Rossi and another 'member of the government, who were in the palace. The crowdtlleri broke open the outer gate of the palace, and rushed in, pushing before them the! government' officials whom they had arrested and bound. Oastiani, who was" armed with a revolver, was among the first to enter. A second door, which was .locked, was broken open, and at this time, or immediately after, Rossi, who was in the passage, was shot through the body with a revolver, and died "ery soon afterwards. .Some other shots were fired, but no one else was injured. Oastioni fled to England. His extradition was requested by the federal council of Switzerland. He was arrested and taken before a police magistrate, as provided by the statute, who held him for extradition. Application was made by the accused to the high collrt of justice of England for a writ of habeas corpus. He was by Sir Charles Russell, now lord chief justice. ,The attorney general, Sir Richard Webster, appeared for the crown, and the solicitor general, Sir Edward Olarke, and Robert Woodfall, for the federalcQuncil of This lirray of distinguis4ed counsel,and tbe'high character of the court, commends the case ,as one of the highest authority. It appeared from an admissioll by one of the parties engaged in the disturbances "that the death 'of Rossi was a misfortune, and not necessary for the rising." The opinions of the judges as to the political character of the
BE EZETA..
999
orime oliarged against Castioni, upon the facts state"d, is exoeed· ingly interesting, but I need only refer to the following passages. Judge Denman says: "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 politiCf.1 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 the acts of I:l1en 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 after 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 governments of the LatinAmerican nations in 1890, contains the following provision (article 23): "Political offenses, offenses subversive of the Intern!1l 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 nnder and according to the provisions of the law which shali prove to be 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 Hlilio, 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 lattel.'." 2 Oalvo, Droit Int. (3me Ed.) p. 413, 11262.
1000
I'EDEBAL REPORTER,
The second provision of the article is founded on the broad prin.humanity everywhere in the, criminal law, distinguishing' its administration'\\'itb respect to even the worst features of our civilization from thecrueIties of barbarism. When tbilll article was under discussion in the international Ainerlcan conferSilva; of Colombia, submitted some observations upon the difficqlty of drawing a line between an offense of a political character and a common crime, and incidentally referred to .the crime of robbery, in terms worthy of some consideration here. He said: "In the revolutions, as we conduct them in our countries, the common of· fenses necessarily mixed up with the political in many cases. A revolutionist liltS .no resources. My. distinguished colleague General Caamaiio [of Ecuador] knows how we C8.lT! 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 hor$es and that beef; nor the arms and saddles to mount aM equip his forces, he tilkes themfr9m the ftrst pasture or shop he finds at hand. This is called. robbery everywb:ere, and isa common offense in time of peace, but in time of ",ar it is a circumstance closely allled to the manner of waging it." International American Conference, vol. 2, p. 615.
Looking now to the case,!! 'Wbich have arisen in the United States, or with our immediate neighbors, where the politicllI character of the offense has been in question, we find that the extradition proceedings have been againsfpersons 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 gen,eral question as to what constitutes an offense ·of a political character. I will therefore refer to these cases as 1 find them stated in 1 Moore· on Extradition. The first case mentioned is that of William L. McKenzie. I t "Arose under the New York statute of 18'22, which authorized the governor of that state to deliver up, upon the requisition of the duly-authorized ministers or officers of fooreign charged with commission, within the jurisdiction ot;such of any crime, except treason, which 1,>y the laws York wOllld, if there committed, be pl1nishable with death or Imprisonment in the state prison. Under this statute, Gov. Head, of Upper Canada,Jn·,1837, 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 McKen· men, from six.to .fifteen hundred in number, llie acted as til" .leader ofa who began,· tl.n· insUJ;Tection in cCl;Ulada for the redress of alleged grievances. On the4th.o( December, 1837,tbey assembled under arms neat the city of Toronto. Gov, Read 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 par/JoJ1, and unless he caUEld a convention of the people to remodel the governmen1;. . conditions Gov. Head refulled. On tbe night of the 4th. of December Ii. p1an n,amed in company with other perSQns, attempted to pass the titles of the insurgefits'in order to reach Toronto. While attempt· ing to pass they were called upon to surrender themselves as prisoners. They refUsed., tl.nd a volley was tired llY the insurgents, In which Moodie was killed. On the followi.pg day, in the prosecution of their enterprifle, the insurgents burned the dwelling house of a Mr. Horne, and seized ,bags which were in the custody of the driver 9f a stagecoach, and rifted them of their contents,obtaining a number of flatters and some money. On the 6th of Deceminsurgents by a military force :under the. command of Qqv. Head. in a coDftict i.\lWbich of the insurgent8 were killed &1ld wound-
IN .u: EZlllTA·
1001
. . aDa three of the government party woundea. When Gov. Marcy 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, he held that the acts with which the fugitive was charged were of a political character, and that consequently the governOl' was without authority to 8U1Tender blm. Upon tbe receipt of tblsopinlon, Gov. Marey, on December 25, 1837, informed Gov. Head of the proceedings that had been taken upon bls requisition. In this communication, Gov. Marcy stated that the documents clearly sbowed 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 UpI>el' Canada. . His crime,' Gov. Marcy 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 case is that of certain Mexican revolutionists. Mr. Moore gives the following statement of the facts of that case: "Several cases 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 rev()iutlonists, came over from Sonora into the territory of Arizona, where they were captured, and placed in the custody of an otfi(!er of the United States army. A demand for their surrender, addreJled to the territorial authorities, was refused. A.pplication 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 twen· ty-five dollars and upwards: It appeared that they had 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. 'fhe Mexican minister, in preferring the request of his government for the prisoners' surrender, adverted to the circumstances, and suggteSted the question whether the professed poUtical motive was not a pretense to cover crim1n&1 acts."
.The United States refused to deliver up the prisoners, stating as a reason, among others,that the fact"That they were charged with being revolutionists sbows that, whatever may have been their other crimes, they may also have been gnllty of a poUtical offense for which the treaty stipulates that no extradition shall be granted." 1 MOOl'e, E:xtrad. p. 323, § 216.
The next case mentioned by Mr. Moore is that of Cazo: "On Febl'U8J'1 8, 1887, the Mexican minister presented a request for the extradition of one 'FranciscoJ. 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, 1886, who bad taken refuge in Texas. The evidence disclosed that, three or four :days previously to the 11th of July, it was reported that Caw was coming. to attack the town. Just before midnight of the 10th of July a. number of persons were observed to leave the 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 neariy three days, during which time they had armed encounters with the inhabitants. seized horses and other property, and committed othet acts of. violence. When they departed, Cazo lett 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, en February 7, 1887, wl'oteas follows: 'After a careful examination of the JllPers "'inclosed in your DOte, 1 am unable to a.void the conclusion that the
1001: terms ot artlcle60f the treaty are not Ii pruperlJlUliS for extradition. The <:lia,racter of the kind and quantity of the property taken, and tile mode of atta4;an:1eadto that conclusion., Although the first assaultot <:la1.o's party WIUI ml\d,e.,tn the night, there was no elfort to conceal the ntlty. ot the lead.',.'. an.dsuch property as WIUI. sell'Jed was taken, manlt8!'tlJ",for the purpose-Of military equipment, tor Which It was adapted. 'l'be ,evidence. oJrered of the fact that Oazo led the attack II the testimony of several witnesses cried, "Hurrah tor Don Francisco J. and at least t. stifies to the addltlonal and accompanying of "Death to Garra. party'" Another witness states that Oazo lett a proclamation ill a resident of Agualeguas, with a view to ita publiCatIon. Indeed t :&»the circumstances polnt to the conclusion that the aJralr was an avowea political confiict' " .....of. 0U0 and hi' assoclatea, . thlrtyortorty "In. , wen clW]y 9fILpoUtical charactar;', AAld-:j,'qI1Sequently, Uij!ler. tIt$ expl'eE!8
The acts and of the in the cases now before me are certainly as closely identified with the acts of a political uprising, In an unsuccessft:H 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 Pulgasravine by Bolanos and Bustamante was because the persons executed· were hiding in houses located in Primavera canton; and,having declared that they had concealed themselves in consequence of not desiring to take part either for or against the revolution, Bolanos ordereaBustamante 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 the revolutionaJ;'y,torces.1t 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 coul),try as "martial law." On the question of martial law, Wheaton, in his work on International Law (3d Eng. Ed. p. 470) says: "Martial law hasbeell deAned to be the wlllof the commandil1g officer of an armed force, or of a geographical military department, expressed In time of war within the limit of his mll1tary jurisdiction, as necessity demands and prudence dictates, restra.lned or enlarged by the orders of Its mll1tary chief or supreme executive ruler; · · ·. Martial law is founded on paramount neceSlUty. It Is the will of the eommander·ot the forces. In the proper sense; It Is not law at alL It Is merely a cessation, trom neooS6lty, ot all municipal law, and what necessity requires It justifies. Under it a man In actual armed resistance may be puno Qe8.th on' the spot by' anyone acting under the Ol'ders of competent authority, or, If arrested, may 1;Ie tried In any manner which such authority shall direct; but If there be all, abuse of tbe. power so given him, and acts are done under It, not bona fide to suppreSs rebeUlon; and In selfdefense, but to gratify malice, or In the caprice of tyranny. then, for such acts, the party doing them Is responlilfble."
The hanging ot Henriquez is arising out of a conflict between military forces. He was cll.arged with being aspy. His father says he did not participate on either side. It is not for me to determine which of true. He may have been a noncombatant, and hisJDur.der, like that of Rossi in the Case of Castioni, a misfortune 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 importll.nt battle, .and was undoubtedly connected with the turbulent condition of affairs prevailing at Ooatepeque at that time, and was therefore of a political character
(a..
IN RE
1()()3
[1Jie robl}ery of tlie International Bank of Salvador 8i Nicaragua, at Santa Tecla, was an act known in the Central and South American states as a "forced loan," recognized by the treaty of amity between the United States of America and the republic of Salvador, ratified in 1874, wherein it is provided,in article 29, subd. 3, that: "The citizens of the Unito:ld States residents In the republic of SalvadOl.", and the citizens of Salvador residents In the United States, shall be exempted loans In · · · from all contributions of war, military exactions, 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. Canas had gone over to the enemy. As Gen. Ezeta and his staff were proceeding rapidly on the road to La Libertad, they met 001. Oanas. The testimony is to the effect that 001. 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. Oienfuegos also flred three shots at Oanas. 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 con· tended 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 dis· cussion 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. Cienfueg08, 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, insur· rection, 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 ot treason, rebellion and sedl·· tlon will be subject to the military authorities; also CIl"imes against the public peace, Independence and sovereignty of the state a.nd infringement of the law of nations."
I'EDERAlr . 1mPORTER,
of
Thls,pn,msion Is found substantially in article 58 of, the articles ,rC)vided for the government of the army of the Unitpd
In OQleman v. Tennessee, 97 U. S. 509, the supreme court of the United.:atates 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 'lth of March, 1865, and d'llrip.g the war of the Rebellion,committed the crime of murder in the state of Tennessee. He was tried by a military courtmartial, convicted, and sentenced to suffer death. After the MnstitutionlU 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 indictlnent he pleaded his conviction before a court-martial. The pleabeillg overruled,he was tried, convicted, and sentenced to death. The question itl 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 tiltle 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 force during its military occtipatlon, did not apply to the defendant, as he was at the time a soldier In the army of the United States, and su!Jject .to the articl.es of war. He was responsible for his conto the laws of his own governmept only, as enforced by the commander of its army In that state, wIthooo: :whose consent he could not even go beyond caught by the forces of the enemy, after committing its lines. Had be to a summary trial and punishment the offense, 1le might have by order .of ,their· oommander'.:AAd there would. have been no just ground of CQmpl!J.tnt,for the marauder. lIJidthe assassin are ,not protected by any Usages of civllized, warfare. But the CQurts of the state, whose regular governmentwas superseded, and whose laws were tolerated from motives of ooDvenj.ence, without juriSdiction to deal with him."
I uDable to understand bow the overthrow of the Ezeta government and ,tb,;e dissolutiotl of its army change the status of Ulis question. In the case jnst the disbandment of the Union forces and the restoration ,of peace, in April, 1866, did not affect the qtiestionof jurisdiction. Mr. Justice Olifford, in a dissenting opinion, that the proceedings against Ooleman by court-martbil were aband()lled Qythe. return of peace. The sentence of the COl1rt·ni,3rt1al ::Was ,never' executed, and the learned justice says, '4Jt is, perhat>s;equally clear that It has become a nullity by the intervention of peace." .'l'Pe facts upon which the prevailing opinion is blU'led, do conflict with this explanation Why the sentence igaip-st was not executed. . It follows, as, a the principles declared by these authorities, that the military law of Salvador had jurisdiction to punisb tlie accused, ,as military officers, for' the offenSEjscommitted by them during the progress of the revolution, and, this being so, these four cases now under consideration,and 'particularly the charge againtl't Antonio Ezetaand Juan Oienfuegos; ,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
am
UNITED STATES fl. WONG AH HUNG.
1005
least, makes it more certain that the offenses charged are of a
political character, and therefore not within the provisions of the treaty. The defendants Antonio Ezeta, Leon Bolanos, and Florencio Bustamante will therefore be discharged, and Juan Cienfuegos held for extradition, to answer the charge of an attempt to murder Andres Amaya on the 3d of January, 1894. UNITED STATES v. WONG AH HUNG. (District Court, N. D. CaW'ornia. August 29, 1894.J No. 3,052-
CHINESB-REGISTRATION-PERSON IN PRISON-MERCHANT OR LABORER.
A Chinaman serving a term or imprisonment at hard iabor is a "laborer," within Act May 5, 1892, § 6, requiring Chinese to register, and not "a merchant," within the exemption of Act Nov. 3, 1893, § 2, defining "merchant" as a person engaged in buying and selling merchandise at a fixed place ot business, which business is conducted in his name, and who does not engage in manual labor, except such as is necessary in the conduct or his business as such merchant, though prior to his imprisonment he owned an interest, in the name of another, in a mercantile firm, and retains it during his imprisonment.
Proceedings by the United States against Wong Ah Hung to deport the defendant under the provisions of the act of November 3, 1893, entitled "An act to amend an act entitled 'An act to prohibit the coming of Ohinese persons into the United States,' approved May 5th, 1892." Defendant ordered to be deported. Charles A. Garter, U. S. Atty. Lyman L Mowry, for defendant. MORROW, District Judge. The defendant was tried and convicted in this court, in December, 1887, upon two charges,-one for bringing into the United States kidnapped persons to hold to involuntary servitude (Act June 23, 1874, 18 Stat. 251); and the other for importing women for the purposes of prostitution (section 3, Act March 3, 1875; 18 Stat. 477). He was sentenced to five years' imprisonment at hard labor in the state prison, with a fine of $1,000, upon each charge, imprisonment for the second charge to date from the expiration of the imprisonment on the first charge. These terms of imprisonment, allowing for deduction of time by reason of good conduct, expired August 13, 1894, when defendant was immediately rearrested, upon the waITa.nt issued on the complaint and affidavit for deportation, filed herein. The present proceeding is prosecuted by the district attorney, under the provisions of section 6 of the act of May 5, 1892, entitled "An act to prohibit the coming of Chinese persons into the United States," as amended by the act approved November 3, 1893. The complaint and affidavit states that the defendant was and is a Chinese laborer; that he was convicted of a felony in the district court of the United States for the northern district of California, as above recited; that he has not procured a certificate of residence, as required by said act; and that he is therefore subject to deportation, as provided by said act. rrhe
1006 1
':l'Et>EltA:L REPORTER,
defendant cilalms'that, at the timedf his he "was'a m.er-: chJant attda JIieIDber of the firm of Quong On, doing business in San J!I'f\I1cisco, at.d that he hadbeerl sllch for several years prior thereto, and that during his imprisonment he, retained his interest in the 1hw, ,of which he was a up to January, 1894, when the copartnership" went out of business; that, being a merchant, the provisions of the act of May 5, 1892, .as amended by the act of November 3, 1893, do not apply to him; and that, for that reason, he was not required to procure It certificate of residence, and hence is not subject to deportation for failing to provide himself with such certificate. It ,l,>e conceded as an established fact that prior to his incarceratiot(in the state prison, in 1887, the defendant owned an interest in a mercantile firm,doing business in this city; that the capi1:alofthefirm was $10,000; that defendant had an interest of $800,in. tije name of Wong Yick Chew; and that he, invested $200 for one Wong Wing, making defendant's total interest $1,000. Did the defendant maintain his status as a merchant while he was serving his term in prison? I; think not. In my judgment, he was during his term of imprisonment a "laborer," within the meaning of section 6 Qf the Mt of May ,5, 1892. He was certainly not a "merchant," within, the meaning of section 2 of the amendatory act of November 3, la93. It is1;Jlere provided that:, "The term 'merchant;' as employed herein and in the acts of, which this is amendatory, shall have the following meaning and none other: A merchant is a person engaged in buying and selling merchandise, at a fixed place of business, which business is conducted in his name, and who during the time he claims to be engaged as a merchant, does not engage in the performance of any manual labor, except such as is necessary hi' the conduct of his as li\uch
Having failed to register under the provisions of the first·named act, and not .:being entitled toa certificate of residence under the amended act,becamse of his: conviction of a felony, I am clearly of, the. opinion that he must be deported; and it is so ordered.
THE CITY Q.F FRANKFORT. HOGUE'et at. v. THE CITY OF FRANKFORT.
(D1s,trict Court,
p,. Oregon. August 13,1894.) No. 3,813.
1.
ADMIRALTY .JURISDICTION - VlllSSEL IN POSSESSION OIl' ASSIGNEE IN INSOL· VENCy-OREGON 'STATUTE.
A vessel in the possession of an assignee for the benefit of cre4itors, under the Oregon law, is not in the custody of the court, so as to prevent a proceeding against her in admiralty to enforce a maritime lien.
2.
INSOf,oVE;NCY LAWS-PROPERTY IN CUSTODIA LEGIS.
A provision in an insolvent law (Oregon statute) that. assignments thereunder shall operate to discharge prior attachments on which judgments have not beeu obtained does not invest the assignee with such a relation to the court that property in his possession is to be considered as in custodia legis.
THE CITY OF FRANKFOllT.
1007
This was a libel by H. A. Hogue and Henry Young against the Oity of Frankfort to enforce a maritime lien. The claimant, C. H. Chase, moved to dismiss the libel. II. W. Hogue, for libelants. J. F. Boothe, for claimant. BELLINGER, District Judge. This is a motion to dismiss the libel filed to enforce a maritime lien, based upon the petition of O. H. Chase, claimant, who alleges that he is the assignee of the vessel proceeded against under an assignment made prior to the libel, by the owner for the benefit of creditors. It is contended in support of the motion that property in the possession of an assignee, under the insolvent act of this state, providing for such assignments, is in legal custody, and is not liable to be proceeded against in admiralty. In the late case of The James Roy, 59 Fed. 784, it is held, following repeated adjudications to the same effect, that the possession of an assignee is not that of the court having the right to supervise the conduct of such assignee and to enforce the provisions of the assignment. It is claimed, however, that the Oregon law makes the possession of the assignee that of the court in the state, for the reason that such law provides that an assignment shall have the effect to discharge any and all attachments on which judgments shall not have bel'n taken at the date of the assignment. The idea of the claimant seems to be that, because the assignment dissolves a pre-existing attachment, this operates somehow to invest the assignee with a relation to the court similar to that held by the officer levying the attachment, or, at least, that it establishes a different relation in that respect from that ordinarily existing. There is no reason for such contention. The possession of the assignee, and the power of the state court over him, are not in the least different under this law from what they are in those states having no such provision. The voluntary act of the debtor cannot establish a legal custody over his property. The dissolution of an attachment by assignment does not establish a custody, but discharges one. This law has nothing to do with the power of thb court over the assigned property, but relates wholly to the matters of preference between creditors. The motion to dismiss is denied.
END
OF CASES IN
VOL. 62.