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ments which combine and give rise to conviction. And if from all these proceedings not even a remote fact is obtained, if those elements do not exist, whence is the proved fact to arise?
I hope your honor will consider the statement made by the owner of the pawn shop, who says that Sanguily pawned a revolver and a machete at his place; but that the month of February came, and that Sanguily had not redeemed that revolver and that machete. Your honor is aware that Sanguily's pecuniary situation was not brilliant, and it was very natural that when he was able to purchase what he needed for a small outlay he should not make a larger one. I understand, therefore, that the statement of the owner of the pawn shop is a confirmation of the fact that Mr. Sanguily did not think of taking any part in the revolutionary movement.
The Government attorney also said, although I will not stop long on this point, that he supposed that the counsel for the defense would censure the proceedings had at the preliminary examination. Since I who am convinced that these public trials are composed of everything, of the air which is breathed, of the paleness of the prisoner, of the most trifling details, I shall not disdain the elements furnished by the preliminary examination.
If I desired to create incidents not in harmony with the majesty of these proceedings (since a trial in which one party demands the acquittal of the prisoner, and the other demands his imprisonment for life, is always solemn) I should say that the preliminary examination was null and void from its first to its last line, because the treaty of 1795 with the United States prohibits any secret examination, and that clause was here violated. A Spanish citizen can not be prevented in the United States from taking part in all the proceedings of an examination, for if he should be, it would be a violation of law. Here, however, important proceedings have been held, in which my client has not been allowed to take part; there has been a secret examination.
But the Government attorney might say: It is true that there is no rebellion; it is true that those documents furnish no proof of the existence of one; yet the conspiracy remains.
It might be and would be punishable, but a conspiracy requires two elements-a concert of purpose and the intention to commit the act.
A conspiracy, according to the code, exists only when two or more persons arrange to commit a crime and resolve to carry out their purpose. In the letter attributed to Betancourt there is nothing but the vague expression of a desire; there is nothing but an intention. Sanguily, moreover, denies the genuineness of the document, and Betancourt, under oath and with all legal formalities, denies it before the United States consul, saying that the letter is spurious.
Passing on to another point, I must express the surprise which I felt when I heard that the Government attorney had said that this defense had not been conducted on correct lines because I had made an alternative request. If his client should not be acquitted, counsel had asked that he might be pardoned on the ground that he was included in the proclamation of February 27. The law does not prohibit the course which I have pursued, and I have based my action upon the provisions of the law. I should be glad, however, if the Government attorney were right even for this once, viz, in saying that my request for a pardon could not be made in the improper form in which he alleges that I made it. But it is the same thing. A pardon has a general obligatory character and can not be renounced. It embraces him who is grateful for it, and favors the ingrate who feels no gratitude.
I say that the pardon, by its terms, embraces Don Julio Sanguily, even if he should be condemned. Does it favor the prisoner? Well, it embraces him. Was it extended on account of acts committed at the time when he was arrested? Yes. The justice of to-day is not that of the Council of Ten of Venice. Justice favors the prisoner, and the judicial code of this age of the world is not that of the Inquisition.
No one can say: "I keep you in prison; I pardon those who committed what you intended to commit, and I keep you in confinement." No, the law is not now interpreted in that way; the law favors the prisoner so far as is compatible with justice, being based upon the humanitarian principles of Christianity.
But if this were not sufficient, there is a practical fact in this case. I refer to the case of Dr. Betancourt. He is not a rebel; he was a conspirator, the leader of those who rose in Matanzas. But the movement was inaugurated on the 24th of February; Betancourt took no part therein and hid himself; the pardon of February 24 was published, and Betancourt, who had committed no act of rebellion, who had not risen in arms, who was in the same situation in which the police think Sanguily is, asked the authorities of Matanzas whether he was embraced in the pardon. As those authorities could not decide the question, they referred it to General Calleja, who, in reply, said, "Yes;" and Betancourt was pardoned and received a passport for the Peninsula.
Betancourt's case was therefore identical with that of Sanguily's, and the pardon extended to Betancourt should necessarily be granted to Sanguily.
It seems to me that, inasmuch as I have demolished all the charges made by the Government attorney, I have a right to the conviction that there is not a single fact on which the guilt of the accused can be based. This being so, your honor, and as there is no cause on which a charge of guilt can be based, since all the theories of the Government attorney have been overturned, I think that in the name of justice and of the law I may ask your honor, in the first place, to acquit my client, and, in the second place, to order his release.
When Mr. Viondi had finished his argument, Sanguily was asked by the presiding judge whether he had any statement to make to the court, and, as he said that he had none, the proceedings were declared closed, in order that sentence might be pronounced.
In our edition of yesterday morning, in the report of the statement made in his examination by Don José Inocencio Azcuy, which was read by the clerk at the request of both parties, an error occurred, which we hasten to correct.
Where it says that Enrique Collazo confirmed the appointment as colonel, it should say that he did not confirm it.
[From the Diario de la Marina, Tuesday, December 3, 1895.]
Yesterday, at twenty minutes past 4 in the afternoon, the third section of the criminal court of this andiencia having met, the sentence of that court in the case of Don Julio Sanguily for the crime of rebellion was read by his honor Don José Pulido y Arroyo. The text of his sentence is as follows:
"In the city of Habana, on the 2d of December, 1895, the case, which had previously been before the examining judge, having been tried in public before the third section of the criminal court, one of the parties thereto being the Government attorney and the other the attorney Don Luis Plutarco Valdés, under the direction of Don Miguel Francisco Viondi, acting in behalf of and representing Don Julio Sanguily y Garit, a native and resident of this capital, an American citizen, 44 years of age, married, son of Don Julio and Doña Maria, of the mercantile profession, a man of education, without penal antecedents, arrested and placed on trial for rebellion, in which case the proper legal customs have been observed."
The sentence was read by Don José Pulido, the presiding judge of this court. 1. Whereas, in the proceedings instituted by the military authorities for the crime of rebellion against Don Eladio Larranaga, Don Julio Sanguily, Don José Maria Aguirre, and others, it was ordered that testimony should be taken concerning everything relating to the aforesaid Sanguily and Aguirre, in order that it might be turned over to the civil authorities, for the reason that, according to the protocol of January 12, 1877, those authorities were the ones competent to take cognizance thereof, the prisoners being citizens of the United States; and the said testimony having been sent to the senior judge, he in turn transmitted it to the examining justice of the district of El Cerro, who proceeded to examine the case;
2. Whereas it is proved that Don Julio y Garit, whose affiliations were with the separatist party, in which he enjoyed influence and prestige owing to the services which he had rendered to the rebel cause in the insurrection which ended in 1878, sustained relations with persons residing in this island and abroad, for the purpose of organizing an uprising to secure independence, and was one of the abettors and leaders of that uprising;
3. Whereas it is proved that Don Antonio Lopez Coloma, a resident of the jurisdiction of Matanzas, came to this capital on the 21st of February for the purpose of receiving orders and instructions from Don Julio Sanguily, and of agreeing whether the cry of "Hurrah for independence!" was to be raised or not, they agreeing that the uprising should take place on the 24th, as it did take place, various bands rising in arms in open hostility to the Government, with a view to proclaiming the independence of this island, Lopez Coloma being in one of those bands, and the said Coloma having been taken by the forces of the army, and several weapons and various documents having been taken from his person, among them a letter written by Don Julio Sanguily, dated February 9, and addressed to Mr. Betancourt, who was also concerned in the uprising, in which letter Sanguily, after lamenting his lack of means, and saying that he was so poor that he was unable to take the field and redeem a machete and a revolver which he had in pawn, urges Betancourt to get for him as soon as possible the $2,500 which he had promised him, adding that he had no head to think about anything that was of interest to him, and concludes by saying that while on the point of placing himself at the head of a work of redemption he had not even the means to send his cook to market.
4. Whereas it is proved that at the time when the letter in question was written Sanguily had in pawn, in the pawnshop known as La Equitativa, a machete and a revolver, which were afterwards sold after his arrest, by his order;
5. Whereas it is proved that Don Julio Sanguily was arrested in the house where he resided in this capital, at an early hour of the morning of February 24, viz, the same day on which the uprising took place;
6. Whereas it is proved that when Don José Inocencio Azcuy arrived in this port from Tampa he was arrested by an inspector of police, who took from him a document which he had hidden in his cravat, and that when the aforesaid Azcuy saw that he was discovered he snatched a part of said document out of the hands of the inspector and put it in his mouth for the purpose of destroying it, and that the inspector compelled him by force to spit out the pieces, and that the said document was written and signed by Don Julio Sanguily, and contained an appointment as colonel in the insurgent army, with power to organize troops and to make appointments; 7. Whereas when the order to end the preliminary examination was confirmed, the previous session was held, and, in accordance with the request therein made by the Government attorney, an order was issued to quash the proceedings provisionally, one-half the costs to be paid by Don José Maria Aguirre, and the public trial of Don Julio Sanguily was commenced;
8. Whereas the papers having been delivered to the Government attorney, that officer made an argument characterizing the acts as those of rebellion, provided for in article 237, No. 1, and punished in 238 of the penal code, and asked that Don Julio Sanguily y Garit should be sentenced as guilty of the aforesaid crime to imprisonment for life, with the accessory penalties of article 33 of the code, and to the payment of one-half of the costs;
9. Whereas the counsel for the defense, in his turn, asked for the aquittal of the prisoner on the ground that there was no legal reason to suppose that his client had committed the acts attributed to him, and proposed as an alternative that his client should be pardoned on the ground that he was included in the proclamation publised on the 27th day of February;
10. Whereas, the proofs offered by the Government attorney and the prisoner's counsel having been accepted, a day was appointed for holding the public trial, on which occasion they reiterated their previous arguments;
11. Whereas, according to article 8 of the civil code and article 41 of the law concerning foreigners, the penal laws are binding upon all persons living in Spanish territory, and as, consequently, the provisions of the penal code are applicable to Don Julio Sanguily y Garit, since his American citizenship gives him only the rights granted by the protocol of January 12, 1877, which rights have been recognized;
12. Whereas, according to article 237, No. 1, of the penal code, persons who publicly rise in arms in open hostility to the Government in order to proclaim the independence of Cuba and Puerto Rico, or of either of them, are guilty of the crime of rebellion;
13. Whereas the acts declared to have been proved in the third "whereas" constitute the consummated crime defined in the twelfth "whereas," since the object and purpose of the rising which took place on the 24th of February is to secure the independence of this island;
14. Whereas, according to article 238 of the same code, persons who induce others to become rebels by promoting or sustaining the rebellion, and the principal leaders thereof, are to be punished by imprisonment for life;
15. Whereas the facts declared to have been proved in the second, third, fourth, and fifth "whereases," conclusively show that Don Julio Sanguily y Garit was guilty, through direct participation of the crime defined in the thirteenth "whereas," and has rendered himself subject to the penalty provided for in the fourteenth, because not only was he one of the promoters of the rebellion but was also one of its leaders or principal chiefs, as has been shown to the satisfaction of the court, not only by the data in possession of the court and by the evidence taken at the public trial, but also by an examination and comparison of the documents connected with the third and sixth "whereases," in the undoubted handwriting of the prisoner (which examination it performed in fulfillment of the duty made obligatory upon it by article 726 of the law governing criminal trials), and, moreover, by the context of the letter addressed to Betancourt fifteen days before the uprising took place, and by the context of the document taken from Azcuy, inasmuch as appointments of that importance can be made only by the directors or principal leaders of the rebellion; 16. Whereas the fact that Don Julio Sanguily was arrested on the morning of the very day on which the uprising took place does not authorize the court to consider him as guilty merely of a frustrated crime or attempt to commit rebellion, because from the letter and spirit of article 338 it is to be inferred that promoters of the rebellion are liable to the penalty therein provided, even though they are not at the head of any rebel bands or actually sustaining the rebellion, it being sufficient that they have promoted it, and because, it having been satisfactorily shown that Don
Julio Sanguily was one of the principal leaders, it appears that he is certainly included in said article;
17. Whereas leaving out of consideration the fact that the alternative request made by the prisoner's counsel should have been made as an article of "previo pronunciamiento," in which case alone it could have been reproduced at the public trial, according to articles 666 and 678 of the law governing criminal trials, it is certain that the granting of that pardon does not come within the competency of this court, and that, on the hypothesis that the prisoner (although he was arrested three days before the publication of the captain-general's proclamation) was entitled to it, the granting of that pardon is wholly foreign to the existence of the crime of rebellion and may become a special case by itself, because, until its application, a crime exists which is punished by the code, and there are no subsequent legal circumstances that prevent its punishment, as was declared by the supreme court in its decision of July 16, 1873;
18. Whereas neither the Government attorney nor the counsel for the defense have pointed out any extenuating circumstances, and as none are to be deduced from the facts declared to have been proved, and as it is therefore proper to enforce the mildest penalty provided for the crime, viz, imprisonment for life;
19. Whereas there is no reason to enforce civil responsibility, and as the costs are understood to be required by law from those who are guilty of any crime:
Now, therefore, in view of the articles of the penal code which have already been quoted and also of articles 1, 11, 12, 26, 53, 62, 79, 89, and 741 of the law governing criminal trials, we pronounce sentence to the effect that it is our duty to condemn, and we hereby do condemn, Don Julio Sanguily to imprisonment for life, with the accessories of being deprived of his civil rights and being subjected to the vigilance of the authorities during his lifetime; and in case the principal penalty be remitted we condemn him to absolute deprivation of his civil rights and to subjection to the vigilance of the authorities during his lifetime unless these penalties shall be remitted in the pardon; and we further condemn him to the payment of one half of the costs of the preliminary examination and to that of all those which have grown out of this case since the public trial was begun; and in view of the incident of seizure of property we declare Don Julio Sanguily to be insolvent for the purposes of this case. Thus by this our sentence we do pronounce, order, and sign.
The foregoing sentence was read and proclaimed by his honor the presiding judge of this court, Don José Pulido y Arroyo, in public session held this day; to which I certify.
MANUEL RAMÓN HERNÁNDEZ,
Mr. Chi to Mr. Williams.
DECEMBER 7, 1895.
SIR: I inclose for your information a copy of a resolution of the United States Senate calling for all the correspondence relating to the arrest, trial, conviction, and sentence of Julio Sanguily, aud directing that a copy of the record of the trial be obtained.
You are instructed to obtain and forward to this Department as soon as practicable a certified copy of the record.
I am, etc.,
EDWIN F. UHL,
[Senate resolution, December 5, 1895.]
IMPRISONMENT OF GENERAL SANGUILY.
Mr. Call submitted the following resolution; which was considered by unanimous con-ent, and agreed to:
Resolved, That the Secretary of State be directed to send to the Senate all correspondence relating to the trial, conviction, and sentence to hard labor for life of
General Sanguily, an American citizen, for alleged complicity in the war against Spain by the Cubans, and if no authentic record should be on file in the State Department, that the Secretary of State be directed to obtain a copy of the record of such trial.
Mr. Uhl to Mr. Williams.
DECEMBER 23, 1895.
SIR: From your dispatch No. 2677, of the 7th instant, and from a letter, filed under date of the 13th instant from Mr. Julio Sanguily, the Department has learned the result, of the trial of Mr. Sanguily in the criminal court of Cuba. From these reports of the trial there is reason to apprehend that the proceedings which terminated in Mr. Sanguily's conviction were not in accordance with the treaty of 1795 as construed by the protocol of 1877. It is inferred from these reports that the civil court took up the case against Sanguily where the military tribunal left off, and that the trial proceeded upon the charges formulated and upon the evidence taken by the military court. It is necessary, before taking action, that the Department should be accurately and fully advised as to the manner in which the trial has been conducted with reference to the code of criminal procedure and to the provisions of the treaty and protocol. The position of this Government is outlined in a telegram to your office, date May 21, last, to which you are referred.
You are instructed to make this report with as little delay as possible, setting forth each step in the proceedings from the first arrest by the military authorities to the conviction in the civil court.
SIR: With reference to previous correspondence relating to the arrest and trial of the American citizen Mr. Julio Sanguily for rebellion against the sovereignty of Spain in this island, I have now the honor to inclose a copy and translation of a communication received under date of the 8th ultimo from the chief justice of the royal audiencia of the province of Habana, asking for a literal copy of the formal protest I addressed the governor-general by order of the Department on the 25th of last April against all the proceedings that had been practiced then or that might be practiced in the future by the military jurisdiction in the trial of Sanguily, because, contrary to the provi sions of the Collantes Cushing protocol of the 12th of June, 1877, which requires that the above should be tried exclusively by the ordinary or civil jurisdiction.
I also inclose copy and translation of my answer to the chief justice, with which I accompany copy of my said protest. I sent a copy of this protest to the Department with my dispatch No. 2491, of the 25th of April last. RAMON O. WILLIAMS.
I am, etc.,