No. 880.
Mr. Romero to Mr. Bayard.
Legation of Mexico,
Washington, August 13, 1888.
(Received August 16.)
Mr. Secretary: I have the honor to inform you
that I have received instructions from Mr. Mariscal, secretary of
foreign relations of the United States of Mexico, dated City of Mexico,
July 24, 1888, to complain to the United States Government of the action
taken by the judge of Cameron County, Texas, in the case of the
extradition of Paulino S. Preciado, late second lieutenant in the Fourth
Battalion of the Mexican army, which was doing garrison duty at
Matamoros, and to make application for his extradition under the
convention of December 11, 1861.
The case is as follows: Paulino Preciado received on the 13th of May,
[Page 1309]
1886, from Captain Jesus
Torres $100 to pay what was due to his company. On the next day Preciado
called upon Captain Torres without returning the money to him or giving
any account of its payment, in consequence of which, orders were given
that he should be brought to trial. Preciado, who was told who were the
persons composing the court by which his case was to be examined, made
no objection whatever. Captain Torres ratified the statement on which
the charge was based.
Preciado afterwards declared that he had spent the money, and said that
he thought that he had committed no crime, because, according to
information received by him, the company had been paid.
A sergeant and a soldier belonging to the company stated that two days’
pay was due them, and that they believed that this was owing to the fact
that Lieutenant Preciado had disposed of the money.
Evidence of these facts was sent by the extradition agent at Matamoros to
the extradition agent at Brownsville, Texas, together with his
requisition, which bore date of June 28, 1887, and in which it was
stated that immediately after having committed the crime, Preciado had
fled to Brownsville.
The case was examined by the judge of Cameron County, Texas, on the 6th,
7th, and 20th days of July, 1887.
Preciado then asked, through his counsel, that his case might be
investigated, and that evidence might be received. The judge, who is
also an extradition agent for the State of Texas, heard the military
witnesses who were sent from Matamoros. Preciado declared that the
charge against him of appropriating public funds had been duly examined,
and that it had been shown that he had paid $49 to the company and
returned $50 to the paymaster, and in proof of his innocence he alleges
the fact that he had continued in active service, making his payments as
before, until September, 1886, when he left the Mexican army. He added
that the extradition papers sent by the extradition agent at Matamoros
did not furnish sufficient proof of the crime in order that the
extradition could be granted in pursuance of the treaty with Mexico, and
that the certification of those documents by Consul Sutton did not state
that he (Sutton) was the principal consular officer of the United
States, as provided by the treaty.
On these grounds the aforesaid judge acquitted Preciado of the charge
preferred against him, notwithstanding the fact that in the first of the
reasons on which his decision was based, he states that the case* is
“subject to further consideration and revision of [the] United States
laws relating to this charge, and until the final hearing of this cause
the exception is temporarily overruled.”
This was done on the ground of the vagueness of the charge and lack of
evidence.
It appears from the evidence in this case, a certified copy of which I
have the honor to send you, that Preciado was prosecuted as soon as it
was learned he had embezzled this money, that is to say, on the 13th day
of May, 1886.
Notwithstanding this, he continued to serve in the battalion to which he
belonged up to September 30, 1886, when he deserted from the prison
guard at Matamoros, enabling two criminals who were under sentence of
death to escape.
Article I of the treaty signed by Mexico and the United States on the
11th of December, 1861, provides that extradition shall be granted “when
the fact of the commission of the crime shall be so established as
[Page 1310]
that the laws of the country
in which the fugitive or the person so accused shall be found, would
justify his or her apprehension and commitment for trial if the crime
had been there committed.” The embezzlement is proved in this case by
the confession of the accused himself before the military judge who
conducted the preliminary examination of the case, by the statement of
the captain who gave him the money, and by those of Sergeant Taylor and
private Lobato. All these were sent as evidence with the requisition of
the extradition agent at Matamoros, who is the municipal president of
that city, the first civil magistrate thereof, and duly authorized by
the governor of Tamaulipas; consequently, the requisition was made in
accordance with Article II of the treaty.
The consular certificate, of Mr. Sutton, United States consul-general at
Matamoros, was declared insufficient by Judge Forto on the ground that
it did not state that Mr. Sutton is the principal consular officer of
this country in Mexico, as required by the laws of the State of Texas.
As there is no consular office in this country higher than that of
consul-general, it is not easily seen how the judge of Cameron County
could consider Consul Sutton’s certificate as being insufficient.
As the treaty does not specify what kind of documents must accompany a
requisition, and as those sent by the extradition agent at Matamoros
clearly showed that the crime had been committed, they should have been
sufficient to secure the extradition of the accused.
The Government of Mexico thinks, moreover, that the judge of Cameron
County, Texas, had no power to acquit Preciado of the crime of
embezzlement, for which he is under prosecution in Mexico. This crime
was committed on Mexican soil to the detriment of the federal treasury
of Mexico, by a Mexican citizen, who was an officer in the army of the
Republic, and in nowise affects the interests of the United States.
Consequently, the jurisdiction of the Mexican courts is full and
exclusive.
Be pleased, etc.,
[Inclosure
1.—Translation.]
Record of the Court of Examination of the Fourth
Military Zone.
I, Ignacio Hernandez Sanchez, having been appointed by the
general-in-chief of the fourth military zone to investigate the
crime of embezzlement with which Paulino Preciado, second lieutenant
of the fourth battalion of infantry, is charged, do hereby certify
that on folio two of this case is found the following statement:
Battalion No. 4.—Second captain. I, the undersigned, have the honor
to inform you that I had occasion to send Paulino Preciado, second
lieutenant, to get a hundred-dollar note changed, $92 of which money
belonged to the second company, which is under my command. This was
yesterday, and he has failed to appear until now, a quarter past 8
o’clock, when he come to see me, but without returning the money to
me or giving me any account of its payment, and as I think that he
has spent it improperly, I have thought proper to order him to be
placed under arrest until a decision in his case shall have been
reached by the proper superior officer; this I have done because it
is a case in which the funds of the company are involved.
Jesus Torres,
Second Captain, the Officer in Command of the
Battalion, Present.
Heroic, Matamoros, May 14, 1886.
On folio No. 1 a seal containing the words: “Mexican Army, Division
of the Rio Bravo. General-in-Chief.” Matamoros, May 14, 1886. Let an
investigation be held of the case of Paulino Preciado, second
lieutenant of the fourth battalion, charged with the crime of
embezzlement, for which provision is made in article 3714, section 1
of the Code of Military Justice, and to this effect Lieutenant
Colonel Ignacio H.
[Page 1311]
Sanchez is appointed examining judge, Captain (First Adjutant)
Francisco Muñoz is appointed attorney, and Ensign Ramon Castañares
is appointed secretary. Let the promise of the first two to perform
their duties faithfully he received, and let this paper be handed to
the examining judge.
Ascension Gómez,
General in Chief.
On folio 3 the citizen examining judge decided to go, in company with
the citizen attorney and the undersigned secretary, to the quarters
of the fourth battalion, where the accused is. Having arrived there,
and having entered the flag-room, the examining judge informed the
accused, who was present, of the order issued by the citizen
general-in-chief, and of the statement made by Captain Jesus Torres,
of the fourth battalion. He was likewise informed who were to
examine the charge of embezzlement that had been made against him.
(He said that) he knew who the persons were who were to compose the
court appointed by the general-in-chief, and that he agreed to the
charge made against him, and he signed with me, the examining
judge.
Ignacio H. Sanchez,
Lieutenant-Colonel.
Paulino Preciado,
Second Lieutenant.
Ramon Castañares,
Ensign, Secretary.
On folio 4 a report which says: On this day the citizen judge ordered
Captain Jesus Torres to appear before him for the purpose of
ratifying the statement which he had made to the effect that Second
Lieutenant Paulino Preciado had made improper use of the funds
belonging to the company under his (Torres’) command. His statement
having been read to him, and he having been asked whether he
ratified it, answered that it was the same one that he had made at
headquarters, and that he ratified it in all its parts. He then
signed in presence of the judge and the undersigned secretary.
Ignacio H. Sanchez.
Jesus Torres,
Captain.
Ramon Castañares,
Secretary.
Paulino Preciado, second lieutenant of the fourth battalion of
infantry, being present, was then urged to tell the truth, and
having promised to do so, was asked the usual questions concerning
his personal status, in reply to which he said: “My name is as above
written; I am a native of Guadalajara, in the State of Jalisco;
thirty-one years of age; unmarried, and by profession a soldier.”
Being informed of the charge preferred against him by Captain
Torres, and being questioned about as much of that matter as had
reference to him, he said: “On the 12th instant I received from
Captain Torres a hundred-dollar note belonging to the fund for
paying the second company; I was told to get it changed which I did
not do, because soon after going out, and while I was making
arrangements to get the money changed I met three friends who
invited me to drink a glass with them; I accepted their invitation,
and at the place where we went we drank not only one but several
glasses, because I thought that it was incumbent upon me to return
the compliment which had been paid me, and I ordered a number of
drinks. I was now beginning to feel badly, when my friends urged me
to go to a gambling house, which, owing to the condition in which I
was, I consented to do. Before I left I had lost the note at play, I
think, however, that I committed no crime, because I have been
informed that the company has been paid.” He then signed, together
with the judge and the secretary.
Ignacio H. Sanchez.
Paulino Preciado.
Ramon Castanares.
The court then decided to examine a non-commissioned officer and a
private be longing to the second company, for the purpose of
ascertaining whether they had received their pay for the 12th, 13th,
and 14th days of this month. It therefore summoned the first
sergeant of the second company and also one private to appear before
it. Juan Taylor, first sergeant of the second company, having
appeared, declared that he would tell the truth. He was then
informed that, if he failed to tell the truth he would render
himself liable to punishment, and was told to what punishment he
would be liable. He then said: “I am a native of Victoria, the
capital of this State; I am unmarried, thirty years of age, and by
occupation a soldier.” Being asked whether his company and he
himself had received their pay he said no, adding that
[Page 1312]
Pay was due them for the
12th, 13th, and 14th; that on the last of the days aforesaid he was
under the necessity of applying to the captain of his company, Jesus
Torres, to whom he complained that he had not been paid; he said
that Captain Torres told him that he did not know why the company
had not been paid, because he had given Second Lieutenant Preciado
the money to do so. He was then asked whether he knew that
Lieutenant Preciado had spent the money, in reply to which he said
that he had heard some officers say that Lieutenant Preciado had got
drunk and had gambled away $100 belonging to the company. This, he
said, was all that he knew concerning the matter, and he said it
under “the responsibility of the promise (to tell the truth) made by
him. He then signed with the judge and the secretary.
Ignacio H. Sanchez.
Juan Taylor,
First Sergeant.
Ramon Castañares,
Secretary.
On folio 5: Immediately afterwards, Jesus Lobato, a soldier of the
fourth battalion, second company, being present, declared that he
would tell the truth, and was informed what penalty was provided by
law for those who give false testimony. He then said that he was
from the State of Puebla, thirty-eight years of age, married, and by
occupation a farmer, although then serving as a soldier. Being asked
whether the company to which he belonged had been paid, he said that
it had not; that the second company, which was the one to which he
belonged, had not received its pay since the 12th instant; being
requested to state whether he knew why it had not been paid, he said
that he had heard several non-commissioned officers and superior
officers say that the captain had given Second Lieutenant Paulino
Preciado the amount necessary to make the payment, and that he had
gambled it away and drank it up with some friends; this he said was
all he knew about the matter, and that he made his statement under
the responsibility of the promise which he had made, and signed with
the judge and the secretary.
Ignacio H. Sanchez.
Jesus Lobato.
Ramon Castañares.
And on my word of honor I issue this certificate to the end that the
municipal president of this city may make application to the
American authorities for the extradition of Paulino Preciado, second
lieutenant of the fourth battalion, now residing at Brownsville.
Done at Matamoros
this eighteenth day
of June, one thousand eight hundred and
eighty-seven.
Ignacio H. Sanchez,
Lieutenant-Colonel.
[Inclosure 2.]
Mr. Torres to
Mr. Forto.
City of Matamoros, State of Tamaulipas,
Mexico,
June 28,
1887.
Sir: I would respectfully represent to your
honor that I am Melquiades Torres, president municipal and ex officio extradition agent of the United
States of Mexico, and in that capacity I now make this requisition
on you as an ex officio extradition agent for
the extradition and deliverance to the authorities of said
Government of Mexico of one Paulino S. Preciado, under and by virtue
of the treaty of extradition now existing between Mexico and the
United States.
In this connection, and as grounds and reasons for making this demand
and requisition for the body of the said Preciado in the name and by
the authority of the Federal Government of Mexico, I would to your
honor respectfully show:
That in the State of Tamaulipas, and in the Republic of Mexico, on or
about the 14th day of May, A. D. 1886, the said Paulino S. Preciado
was an officer of the Federal Government of Mexico, to wit, second
lieutenant of the fourth battalion infantry of the line, and was as
such officer a receiver and depositary of public money belonging to
the said Government of Mexico, and as such officer, by virtue of
said office, he then and there had in his possession and charge the
sum of $100 in Mexican money, the same being public money belonging
to the said Government of Mexico, and he did then and there
unlawfully and fraudulently take the said sum of money and convert
the same to his own use.
[Page 1313]
That immediately after the embezzlement of said public money, as
aforesaid, and before he could be dealt with and suffer the penalty
imposed according to and by the laws of Mexico, the said Paulino S.
Preciado fled beyond the frontier limits, and is now a refugee from
the justice and laws of this country in Brownsville, Cameron County,
Texas, in which place he is now or lately was a resident.
That said Paulino S. Preciado is a native-born Mexican citizen; that
the Mexican Government is ready, willing, and now offers to pay any
and all the costs and expenses attendant on and connected with the
apprehension, trial, and extradition, as herein requested, of the
said Preciado, or to give security for the same, as your honor shall
require.
That herewith I extend and show to your honor written evidence, duly
authenticated, according to the statutes of the United States in and
for such cases made and provided, which shows the guilt of the said
Preciado, as aforesaid, and in connection therewith am ready to
establish his said guilt by such other and further oral evidence as
your honor may deem necessary.
The premises being considered, I request and demand, in the name of
the Federal Government of Mexico, under and by virtue of the said
treaty of extradition, now existing and in force between the
Government of the United States of America and the United States of
Mexico, that, after due proceedings had with this object in view,
you turn over and deliver to the Mexican Government or its lawfully
authorized agent or agents the body of him, the said Paulino S.
Preciado, to be dealt with and tried for his infraction and
violation of the laws of this country, as aforesaid.
Respectfully,
[seal.]
Melquiades Torres,
Presidente Municipal, Ex Officio Extradition
Agent.
United States
Consulate-General,
Matamoros, Mexico,
June 28, 1887.
I, Warner P. Sutton, consul-general of the United States of America,
for Matamoros, etc., do hereby certify that the foregoing six pages
of manuscript, numbered from 1 to 6, both inclusive, are properly
and legally authenticated according to the laws of Mexico, so as to
entitle them to be received as evidence of the criminality of
Paulino S. Preciado, the person therein referred to and mentioned by
tribunals of Mexico.
In witness of which I have hereto signed
my name and affixed my official seal at
Matamoros
this 28th day of
June, A. D. 1887.
[
seal.]
Warner P. Sutton,
Consul-General.
Statement of the case and ruling of the court in
re Paulino S. Preciado, before Hon. E. C. Forto, county judge
Cameron County, and extradition agent of Texas.
demand for extradition.—statement
of the case.
This requisition by the Hon. Melquiades Torres, president of the
ayuntamiento of Matamoros, as extradition agent of Mexico, on
affidavit of Lieutenant-Colonel Ignacio H. Sanchez, of the Mexican
army, filed on the 28th day of June, 1887, alleging that on or about
the 14th day of May, 1886, the accused, Paulino S. Preciado, native
Mexican citizen, was a second lieutenant of the fourth battalion of
infantry of the line of the regular army of the Republic of Mexico,
and by virtue of his office was by law a receiver and depositary of
public money belonging to that Government; that at the date named he
had in his possession as such receiver and depositary the sum of
$100, the same being public money, and that he did unlawfully and
fraudulently take the said sum of money and misapply, embezzle, and
convert the same to his own use and benefit.
The requisition also sets forth that immediately after the
embezzlement of said public money and before he could be dealt with
and suffer the penalty imposed according to and by the laws of
Mexico he fled beyond the frontier limits thereof, and is now a
fugitive from the justice and laws of his country, in Brownsville,
Texas, in which place he is now a resident.
Counsel for the relator filed a document in the Spanish language,
accompanied by a translation in the English language, said to be a
copy of a military investigation instituted against the accused by
Lieutenant-Colonel Sanchez, and to which was attached a certificate
of the Hon. Warner P. Sutton, consul-general of the United States of
America for Matamoros, etc., declaring the same to be properly and
legally authenticated according to the laws of Mexico, so as to
entitle it to be received as evidence of the criminality of Paulino
S. Preciado, the person therein referred to and mentioned by the
tribunals of Mexico.
[Page 1314]
A warrant having been issued on this complaint, and the accused
arrested on the 29th day of June, an examination was postponed until
the 6th day of July, at the request of the accused, to afford him
time to procure the assistance of counsel and prepare his
defense.
On the 6th day of July the accused, represented by Hon. F. E.
Macmanus and Messrs. Mason and Celaya, as his attorneys, filed: (1)
exceptions to the complaint; (2) exceptions to the report of the
investigation, etc.; (3) answer to complaint and requisition for
extradition; (4) motion to fix amount of bail for accused.
The exceptions to the complaint allege the same to be vague and
incoherent, and fails to set forth any offense for which he may be
lawfully extradited under the provisions of our treaty with Mexico,
or any offense whatever. (2) That it fails to make a complaint under
oath against the accused for any crime known to the laws of Texas
that would justify his apprehension and commitment for embezzlement
had the pretended offense been committed in the State of Texas. (3)
That while said affidavit alleges that the accused misapplied,
embezzled, and converted to his own use the funds in question, it
fails to set forth that such proceedings were without the consent of
his principal or employer or of the owner of the same.
The exceptions to the report of the military investigation are to the
effect that it is not admissible as evidence under the laws of the
United States nor the stipulations of its extradition treaty with
Mexico of December 11, 1861. That the certificate attached to the
same, signed by Consul-General W. P. Sutton, dated June 28, 1887, is
not the certificate of the principal diplomatic or consular officer
of the United States resident in Mexico, hut is merely that of a
consul-general of a district thereof. That such certificate was
given improvidently, and is not true in fact. That the said copy
certified on the word of honor of Lieutenant-Colonel Sanchez is not
certified to contain the entire report of such investigation, and
does not contain the final action thereupon, such final action being
the withdrawal of the complaint, the dismissal of the cause, and the
restoration of the accused to duty, which he continued to discharge
for four months and a half after the date of said complaint without
further molestation on account of it. That the said document and
complaint are mere pretexts used by his political enemies to obtain
the extradition of the accused, in order that they may be enabled to
punish him for political action on his part against them.
The answer of the accused denies all the essential matters contained
in the affidavit and report of investigation. Admits that, as second
lieutenant, he received from his captain a fifty-dollar bank bill
and several others of smaller denominations, amounting in all to
$99; to have same changed into coin. That he returned $49 to Juan
Taylor, sergeant of his company, to be paid to the men, and next day
returned the $50 to his captain. That the report of the
investigation fails to show that the complaint was dismissed and he
restored to duty. That on the contrary after the withdrawal of the
complaint and his restoration to duty in May he remained in the
discharge of his duties until the 30th of September, or four months
and a half after the commission of the alleged offense.
That on said 30th of September he abandoned the Mexican army, came to
Brownsville, and, joined by his family, has continually made his
domicile here, and entered on the business of editing and publishing
a newspaper in this city. That he declared his intention to become a
citizen of the United States, as per annexed certified copy thereof.
That, impelled by a sense of public duty to his native land, he has
criticised the actions of certain politicians therein, which has
aroused their animosity and that of their friends against him, and
that the requisition for his extradition, supported by fabricated
testimony, is designed solely for the purpose of placing him at the
mercy of his political adversaries in Mexico, so that they may, by
an abuse of the power of extradition, be enabled to wreak vengeance
on him for political offenses. That this and not the pretended
embezzlement of $100 is the true ground of his attempted
extradition. This answer is sworn to.
Arguments on the exceptions having been heard on the 6th and 7th, the
matter was taken under advisement, and the case postponed until the
20th of July.
ruling of the court.
Upon a careful consideration of the exceptions of the accused to the
complaint, I find that under the law and practice of the State of
Texas this exception is well taken, but subject to further
consideration and revision of United States laws, relating to this
charge, and until the final hearing of this cause the exception is
temporarily overruled.
The exception to the consular certificate attached to the certified
copy of a report of a military investigation in Matamoros appears to
be well taken. Section 5271 of the United States Revised Statutes
was originally adopted in 1848, and as amended in 1876 prescribes:
“That the certificate of the principal diplomatic or consular
officer of the United States resident in such foreign country shall
be proof that any such paper is authenticated in the manner required
by this section.”
[Page 1315]
The certificate should show upon its face that the officer giving it
was or is the principal diplomatic or consular officer of the United
States resident in Mexico.
The certificate was granted by Consul-General W. P. Sutton, and
recited that “he is consul-general for Matamoros, etc.,” which is by
no means a declaration that he is the principal consular officer of
the United States resident in Mexico, as required by law (see
Wharton’s International Law, sec. 277, p. 821, citing 10 op. Atty.
Gen., 501, Coffey, 1863. Tarez in re, 7
Blatch., 345). And as parol proof is not admissible to remedy this
defect, the exception must be sustained.
I have also carefully considered the motion of counsel for the
accused “to fix bail” in this cause, and in the absence of positive
authority in law on this subject (see “Bump’s Federal Procedure, pp.
723”) the motion is denied and overruled.
The objections to the evidence of Lieutenant-Colonel Ignacio H.
Sanchez having been overruled, he was permitted to testify.
From his testimony it appeared that better evidence of the statements
made by him were in existence in Matamoros (the original official
record of the investigation) made at the time of the alleged
offense, and for this reason on motion of counsel for the accused
the oral testimony of the witness was stricken out.
At this point Mr. John C. Scott, counsel for the relator, proposed to
have the cause dismissed, to which the accused, by his counsel,
objected on the ground that the examination having been commenced on
evidence heard, he was entitled to a verdict. The objection being
sustained, the accused was then offered and sworn as a witness in
his own behalf.
He corroborated the statements made in his sworn answer, as given
above.
This court can not fail to consider the fact admitted by the relator,
that the said accused, Paulino S. Preciado, did not flee beyond the
frontier limits of the Republic of Mexico immediately after the 14th
day of May, 1886, and before he could be dealt with in accordance
with the laws of Mexico, as alleged by the Hon. Melquiades Torres in
his said requisition, but on the contrary he remained in the city of
Matamoros, Mexico, unrestrained of his liberty and performing duty
as an officer of the Mexican army, until the 30th day of September
of the same year.
And in view of the law and evidence offered in this case, as above
set forth, it is considered, ordered, and decreed by this court that
the said Paulino S. Preciado be, and he now is hereby, discharged of
the accusation as aforesaid, and that he go hence without day.
Witness my hand, this 21st day of
July, A. D., 1887.
E. C. Forto,
County Judge, Cameron County, Texas, and Extradition Agent
for Texas.
State of Texas, County of Cameron:
I hereby certify that the foregoing is a correct copy of the
original now on file in my office.
Witness my hand this 3d day of
November, A. D., 1887.
- E. C. Forto,
County Judge and Extradition Agent,
Cameron County, Texas. - C. Romero,
Secretario.
