Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 3, 1888, Part II
No. 796.
Mr. Bragg
to Mr. Bayard.
Mexico, June, 18, 1888. (Received July 6.)
Sir: I had the honor to transmit to yon on the 8th day of March last, as an inclosure to my No. 5, copy of my note addressed to Mr. Mariscal, on the 6th of that same month, touching the alleged acquittal, re-arrest, retrial, and conviction of one Henry Brudigam, who claimed to be a citizen of the United States, for comic de.
Herewith I have the honor to inclose the following papers: Copy of a second note from me to Mr. Mariscal, dated 24th March last; text and translation of a note from Mr. Mariscal, dated the previous day but not received till the 26th, and covering transcript of letter from the governor of Chihuahua; note (in Spanish and English) from Mr. Mariscal, of date the 28th of March, and my reply of the following day; my note of May 5 last, inclosing certificate of application for naturalization by Brudigam; and copy and translation of Mr. Mariscal’s note of the 16th ultimo, inclosing extracts of testimony in the case, and the finding and sentence of the appellate court.
The point made by Mr. Mariscal that declaration of intention is not sufficient evidence of citizenship to warrant the Mexican Government in recognizing the right of intervention on the part of the United States is a grave question, and I respectfully request full and explicit instructions of the views of the Department thereon.
It seems to me that the declaration of intention, followed by an appeal to the United States for protection, makes a prima facie case; and they can only meet it by showing an abandonment by Brudigam of the territory of the United States sine animo revertendi. Brudigam was a German by birth. He has not applied to the German Government for protection, as Mr. Mariscal says “he has been informed.” The facts are (and I have them from the German legation), Brudigam’s partner in business and alleged accomplice in crime, is a German, and applied for German protection. But Brudigam did not apply to the German, but to the American consul. Brudigam’s mother in Germany applied for German protection, not he.
[Page 1206]It will be seen that every extract of evidence, disjointed and disconnected, that standing by itselt, without the context, can cast a shadow upon Brudigam, is carefully compiled; and standing as it does alone, furnishes not a shadow of legal evidence to establish his guilt.
You will notice that the only direct evidence is the declaration of a witness that certain parties told him Brudigam was going to or did take part.
Take the circumstances of the watch in this case, which it is said was taken from Brudigam, and is a strong circumstance used against him. “He stated that he bought it, when he bought it, and how he paid for it; and he took it voluntarily to the officer and gave it to him, telling him it might aid him in search of the murderer, as the murdered man had other watches of the same make, and the robbers took them away, and might offer to sell, and hence a clue could be had, etc.” But none of this is in the record.
The record, you will notice, makes another strong point against the prisoners—they failed to prove an alibi. They stated where they were and who they were with, and the party named could not remember whether or not he was there at the precise hour named.
Another thing to which I call attention is the ideo consideratum clause these judges assign among the facts establishing the guilt of the prisoners “other causal propositions of the Attorney-General.”
The original record of the court of first instance nowhere appears. That judge saw these witnesses. He was inquisitor, and knew just how much credit should be given the statements, and he acquitted the prisoner.
This judgment and conviction is from the appellate court, supported by the garbled statements and fearful torturing of evidence that I have referred to, without ever seeing a witness or the parties.
The governor appoints and removes judges at his pleasure and all the subordinate police officials; so that he controls absolutely the life, liberty, and property of all within his State.
I am, etc.,
Mr. Bragg to Mr. Mariscal.
Mexico, March 24, 1888.
Sir: I have the honor to call your attention to a note of your excellency dated March 7, advising me of your forwarding to the governor of Chihuahua my note requesting information concerning the case of Henry Brudigam, and to which note, as far as this legation is advised, the governor of Chihuahua has not yet replied.
I trust your excellency will excuse me from the charge of impatience when I again call your attention to this matter, as the question involved is quite a grave one, affecting the rights and liberty of an American citizen.
I repeat, etc.,
Mr. Mariscal to Mr. Bragg.
Mexico, March 23, 1888.
Mr. Minister: As I had the honor to promise your excellency in my note of the 7th instant, relative to the case of the American citizen Henry Brudigam, I have now the [Page 1207] satisfaction to advise your excellency that, under date of the 14th instant, the governor of the State of Chihuahua informs me as follows:
“In reply to your esteemed note of the 7th instant I have the honor to report to you as follows: The foreigner Enrique Brudigam was absolved in the court of first instance, and was illegally set at liberty before that court’s sentence could be effected; for the time allowed by law for appeal from determined sentences had not as yet expired, nor had the public prosecutor expressly consented thereto.
“As was natural, Brudigam was re-arrested, and the case was submitted to the supreme court to decide whether a second hearing should be ordered. The first chamber of the supreme court, in conformity with its prerogatives, revoked the decision absolving Brudigam, and convicted Brudigam as the perpetrator of the murder of Domingo Steiner.
“As can be seen at once, there has been no violation of constitutional guaranty, nor of the personal rights of Brudigam, for he has not been tried twice for the same offense. In all nations of the civilized world there exist superior tribunals charged with the modification, revocation, and annulment of the proceedings of lower courts, nor can it be therefore alleged that various trials have been practiced.”
I embrace this opportunity, etc.
Mr. Mariscal to Mr. Bragg.
Mexico, March 28, 1888.
Mr. Minister: I have the honor to acknowlege receipt of your excellency’s note dated the 24th instant, in which you recall my attention to the case of Henry Brudigam.
Up to the present I have in my correspondence conceded the American nationality of Brudigam. But upon reviewing the papers in this case, on file in this department, I find that this point is at least involved in doubt. It therein appears that he is German by birth; and although he may say that he is a naturalized American, as he has not proved the date nor concurrent circumstances of his naturalization, it does not seem to me that his simple statement should be credited in the matter. I would therefore desire, before all, that your excellency would be pleased to advise me whether it is certain that the party alluded to has been, as he alleges, naturalized.
I renew, etc.,
Mr. Bragg to Mr. Mariscal.
Mexico, March 29, 1888.
Sir: I have the honor to acknowledge receipt of your excellency’s note dated yesterday, in which you make inquiry concerning the nationality of Henry Brudigam, at Chihuahua. I have taken steps to establish that point, and will communicate with your excellency as soon as I receive the data.
I beg, etc.,
Mr. Bragg to Mr. Mariscal.
Mexico, May 5, 1888.
Sir: In further reply to your excellency’s note, of the 28th of March last, I have now the satisfaction herewith of inclosing a certified copy of the record of declaration of intention by Henry Brudigam to become an American citizen, and would respectfully thank you to advise me of the receipt of same.
I take pleasure in renewing, etc.,
Mr. Mariscal to Mr. Bragg.
Mexico, May 16, 1888.
Mr. Minister: I have the honor to acknowledge receiptor your excellency’s esteemed note, dated the 5th of the present month, inclosing the certified copy, referred to, of the declaration of intention made in 1879 by Henry Brudigam to obtain American citizenship.
Your excellency doubtless is aware that such declaration can only be considered as the first step in obtaining the aforesaid citizenship. Therefore, until proof of greater weight is produced, there is at least ground for suspecting that Brudigam, in asserting that he has secured naturalization, has deceived the Government of the United States.
But be that as it may, considerations of courtesy toward the United States Government constrain me, and I have the honor to advise your excellency as follows:
As promised by me on the 7th of March last, I had the satisfaction, under date of the 23d of that same month, to communicate to your excellency the report on this case furnished to this department by the governor of the State of Chihuahua.
It appears from that report that Brudigam was tried on the charge of homicide, perpetrated in the person of the Swiss Domingo Steiner. He was absolved in the first instance. The public prosecutor appealed from this decision within the legal term, and. Brudigam was re-arrested. The supreme court of justice in Chihuahua revised the decision of the lower tribunal and revoked it, condemning the prisoner under existing laws.
I have now the honor to inclose for your excellency’s information copy of the sentence passed upon Henry Brudigam, on February 11 last, by the first chamber of said supreme court. The perusal of this document suffices to demonstrate that the party in question has been tried in due accordance with the law; that his re-arrest and the decision rendered in second instance by the Chihuahua supreme court were consequent upon the appeal taken by the public prosecutor from the decision of the court of first instance which had absolved the accused and ordered his liberty, and that therefore a new trial for the same offense had not been ordered, as was stated to the United States Government maliciously or in complete ignorance of our laws.
I should repeat that through courtesy I have made the foregoing explanation, and should add that my purpose was to vindicate the Mexican Government once more from unjust charges against its administration of justice. Furthermore, it is impossible for me to admit the American citizenship of Brudigam, as proof thereof is lacking, and having also been informed that the said individual applied likewise to the German Government for protection.
I renew, etc.,
Record of the supreme court of Chihuahua in the case of Brudigam.
[Seal, Mexican Republic, supreme court of justice of the State of Chihuahua, first chamber, office of secretary.]
I, Eduardo Montes de Oca, clerk of the first chamber of the supreme court of the State, do certify that, on the second page of the proceedings instituted against Henry Brudigam and accomplices, for homicide and robbery perpetrated in the person of the late Domingo Steiner, the following sentence doth appear:
Chihuahua, February 11, 1888.
Proceedings instituted in reference to the murder and robbery on the night of February 9, 1885, of Mr. Domingo Steiner, Swiss by birth, against the following parties accused: Henry Brudigam, Refugio Martinez, Federico Fichen Juan Garcia, and Santiago Icusa; the first named, fifty-four years of age, unmarried, baker by trade, native of Germany and living in this city; the second, forty-four years of age, butcher by trade, native of Zacatecas and living in this city; the third, twenty-one years of age, unmarried, a baker, a native of Germany and living in Cosihuiriachic; the fourth, thirty-three years of age, married, a carter, native of Guadalajara and now living in this city; and the last, twenty-nine years of age, unmarried, a telegraph operator and pork butcher, native of Spain And living in Mexico.
[Page 1209]It appearing, first: On the 10th of the aforesaid February, the policeman, Cárlos Ramos, reported to the second justice of the peace that he found the Swiss jeweler, Domingo Steiner, dead in his house in Calle de Aldama. The judge repaired thither and took note of the sudden death of Steiner, whom he found lifeless, stretched upon the floor, lying in a large pool of blood in one of the rooms of his house, and close to the deceased was a stick shaped like a “macana” (wooden implement or weapon edged with flint), with which it is presumed he was killed, for he had various wounds produced by some weapon designed to effect contusions. One of the wounds was in the forehead, another on the right temple, which had crushed in the skull, and another on the left side of the head which laid the skull bare; the deceased had besides two additional wounds, made evidently with some edged weapon, one of them above the left eye about an inch long, and the other on the right side of the neck directly above the shoulder, one inch in length and slashed downward toward the breast. The judge further took note of the objects found in the house of deceased, and which are invoiced on pages 42 to 46.
It appears, second: The physicians, Miguel Marquez and Luis G. Muñoz, who were appointed to examine the body of the deceased Steiner and locate his injuries, made their expert examination in the Charity Hospital, and their verdict, found on page 53, is as follows: One fracture with the frontal flat and parietal bones badly crushed in; one wound, made evidently with some sharp instrument, in the neck, on the left side; flesh wound in cellular formation, along the jugular vein and carotid artery, and the above wounds had caused the abundant hemorrhage. These wounds result in immediate death.
It appears, third: The civil judge having been advised, then issued the burial certificate of the foreigner, Domingo Steiner, on the 10th day of February, 1885, that is upon the day following the occurrence, as can be seen by the certified copy from that functionary, on page 39.
It appears, fourth: Proofs of Brudigam’s guilt are found in the testimony of Angel Terrazas, which testimony, on the seventh page, reads as follows: During the two or three days preceding the murder and on the day of the occurrence itself he noticed, under suspicious circumstances, an American, short of stature, stout-built, with black whiskers, large head, and accompanied by some Mexicans. Ruperto Martinez, on the sixty-sixth page, testified on May 30, 1885, that the watch referred to on page 62, which the mayor found on the prisoner’s person, was not seen by the witness, but that the latter did see in the prisoner’s possession the chain belonging thereto; that touching the kneading sticks in the bakery when Brudigam went into his work, there were two large and three small ones, all of which yet exist; that concerning the death of a foreigner, Steiner, living in Dipo, witness was asked if he knew who had killed the jeweler, and whether any of the kneading-sticks were missing from the bakery, as everybody was saying that it was Mr. Brudigam who had killed Steiner. The same Martinez, on page 73, states that he saw in the possession of Brudigam and Ficken four watches similar to the one in the court, Brudigam giving two to Ficken, the deponent being ignorant as to where Brudigam obtained them.
It appears, fifth: The accused Brudigam (see page 62) recognized the watch taken from him by the mayor as being one he purchased from Steiner in the sum of $82, which he paid in four installments, once by an order for $60 on Messrs. Macellanus, and on the other occasions under different dates; the payment of the $60 being made on November 27, 1884; that Berstchten, Francisco, and David N. knew of the purchase of the watch, and that on the night of the murder he was in their house with his partner and George, a German; and added Brudigam, without being questioned thereto, that on the same day that Steiner was found dead he (Brudigam) delivered to the chief of police the selfsame watch, stating that he had purchased it from Steiner, and adding that he, the deponent, had five, six, or seven others of the same kind, and that four or five days after he gave all the watches to his companion, Ficken, in exchange for the watch of the chief of police, which was given over to him. Brudigam, on page 74, stated that his partner, Frederick Ficken, knew of the two first payments for the watch, and that he does not know whether Ficken knew of the two last, as he (deponent) does not remember of having told him. On pages 92, 93, and 94 mention is made of two written papers and an envelope, all recognized by Brudigam, which are referred to later on.
Brudigam, in his additional testimony on pages 143 (reverse) and 264 and 269, referring to Cárlos Miramontes and to the kneading-stick, said that it was in this jail that he had made the acquaintance of the said Miramontes when called out of his cell to meet him, but that he had never spoken to him before, nor did he remember ever to have seen him before; and as to the club or kneading-stick, he had never seen it, and did not know it; that he has one hard-wood stick which he has never used and which he showed to Judge Amparán. Being cross-examined (see page 221) concerning the Spaniard José Antonio Mauricio, Brudigam said he did not know him; but, being counseled by the court to state the truth, he admitted that he did know him, and that he lived, so [Page 1210] Ficken, who acted as interpreter, told him, in the Cuartos de Hermosillo, at one time when the Spaniard went to his bakery to arrange for the purchase of some bread for sale in a stand occupied by Leonhard, and that some days after the Spaniard proposed to the deponent that the latter should go into partnership with him, but deponent refused, and since that time he has not seen him; that on the night of February 9th he, the deponent, was not in the jewelry store of Steiner, nor did he speak with him there; tor it was twelve or fifteen days since he had been there; that it is not true that on the night of the 8th of February he was in the house of Leguinazabál drinking with some other parties, and that upon Steiner passing on the side-walk he had called out to him that on the following day he was going to buy a watch from him for his sweetheart, and that while such might have occurred it must have been not at night, but between three and four o’clock in the afternoon; he, the deponent, remembering that George Springer then told him that Steiner was just going by with Albert Meyer, and that, just then, as Steiner and Meyer were passing by Leguinazabál’s store, and Springer called his attention to them, the deponent went out and after saluting Meyer, said to Steiner, in a joke, that the next day he would buy the little watch from him for his sweetheart.
It appears, sixth: The accused, Santiago Icusa, on pages 199 to 209, referring to Brudigam (see page 201) in answer to the 13th question, said: That on the 7th of February, in a room in Hermosillo’s house, he found Antonio Mauricio and Carlos Miramontes drinking tequila,* and that they told him that they were going that night to kill the Swiss jeweler for the purpose of robbing him, and asked witness to go with them, adding that their companion, the American, had engaged to kill the jeweler with a club prepared already, and which he had wrapped up in an American newspaper; that Icusa at the same time said that he himself could take no active part in the affair; that they then told Icusa not to give them away, and that they would pay him, and that Icusa then promised to say nothing; that on the day of the occurrence, about 10 o’clock in the morning, Mauricio stated that he had consulted with his companion the American, who was acquainted with the jeweler Steiner, and it had been agreed that the blow should be given at the time that Steiner was accustomed to put up his wares; and that when Steiner should turn his back and go towards the safe the American was to strike him from behind with the club, as in effect he did, the first blow from behind, and all the blows falling upon the head; that the proceeds of the robbery were distributed in the house of Miramontes between Mauricio, Miramontes, the American companion, and, he presumed, Ficken also, who was associated with them; that Don Antonio asked the American to blindfold Steiner, but the American replied that Steiner knew him too well, and that he must not let him survive; also that the American assured him that the iron safe was closed with a combination lock, which only he who fastened it could open.
Icusa, in his additional testimony (see page 212) stated: That he did not recall the date when Don Antonio Mauricio became associated with the Germans of the bakery; but Don Antonio had told him that he had requested employment from the Germans now in the jail (whom Icusa recognized as Brudigam and Ficken), to whom he had been introduced by Hermosillo; that he had been twice in the bakery of Henry Brudigam, but was always attended to, not by the whiskered Brudigam, but by the other boy called Ficken. Icusa, on pages 218 to 220, ratified to the mayor in substance his testimony concerning Brudigam, as well as on pages 263 and 267, adding that Cárlos Miramontes, Antonio Mauricio, Henry Brudigam, and Ficken were the four persons who assaulted the house of the jeweler, Steiner, Brudigam and Ficken being Germans, the former (Brudigam) not being an American, as he believes the mayor first believed wrongfully, Brudigam being the direct murderer of the jeweler Steiner; that Icusa, in his cross-examination before Brudigam, reiterated this testimony (see page 272), the latter denying it, and averring that he knew nothing of what Icusa accused him, because he never had crossed words with Antonio Mauricio, whom he only saw twice in his own bakery, where Mauricio went to see the prisoner touching a copartnership, of which he was advised by Ficken.
It appears, seventh: In the confrontation of Brudigam and Ficken (see page 96) the latter made a feeble effort to sustain himself, Brudigam claiming that he became disassociated from Ficken merely because the bakery business was not paying enough for the two; and that it is true that he said to Ficken that he had purchased the watch and chain for $69, as it was a more common one than he now had, though it looked very much like it, which might, account for Ficken’s mistaking the two; that he did not remember, however, telling Steiner about the exchange made in the chains; as to the strickle which Ficken says he (Brudigam) bought from a party from El Paso, and which he said he bought for 35 cents, Ficken, he claimed, did not see the transaction but was merely told of it by Leonhard; that Ficken left this city on the 18th of March; nor was Ficken certain as to the month in which Brudigam purchased the watch and chain, [Page 1211] nor did he know that the latter had been exchanged or that another had been bought in its place. Finally, Ficken stated that he did not know anything about the little box.
It appears, eighth: Albert Meyer, on page 216, stated that on the 7th of February, before Steiner started out to supper, he called in and they were chatting up to the usual time for starting; that shortly before Steiner told deponent that Henry Brudigam had just been there, pretending that he wanted to buy a small gold watch; that Brudigam annoyed him constantly, pretending he wanted to buy something, and never doing so, except on one occasion when he bought a watch; that on the 8th they were returning from supper to Steiner’s house, and Brudigam came out of Leguinazabál’s place of business, where he was drinking with some other parties, and said to Steiner that on the following day he was going to buy a small watch from him for his sweetheart; that among the watches brought from El Paso there were seven or eight like the one shown him, but that he is not positive that this is really one of them; also that he saw some chains in Steiner’s possession like the one shown him.
In the cross-examination Brudigam and Meyer sustained in each other’s presence (see page 230) Meyer re-affirmed what Steiner had said to him, Brudigam also insisting on his statements; Meyer reiterating his assertion that on the night of February 8, about 8 o’clock, Brudigam said to Steiner that upon the following day he intended to buy a small gold watch from him for his girl; Brudigam said he did not wish to contradict Mr. Meyer, and that perhaps it was at the hour Meyer said, for he (Brudigam) was then quite drunk.
It appears, ninth: Icusa, in his testimony (see pages 199 to 207), confesses himself guilty of participation in the crime now under consideration, as explained in his additional testimony (pages 207 to 209 and 220), as well as other testimony given at the time of his confrontation with Miguel Mórril (pages 228 and 229).
It appears, tenth, that Ficken, in his preliminary testimony, pages 86 (reverse) and 90, and his subsequent declaration (page 146), stated that there were, he believes, five strickles in the possession of himself and Brudigam, three large and two small, and that the watch and chain shown him he recognized as belonging to Brudigam, who told him that he had bought them for $69 from the jeweler Steiner, but was not sure whether in December or January last; that Brudigam showed him (Ficken) the watch and chain the same day that he purchased them and the deponent delivered them to the chief of police on the day Steiner was found dead; that he had seven or eight just like them; that two or three days after having given them to the chief of police he took back the aforesaid watch and chain, by order of Brudigam, and returned to the chief of police his own watch; that he went to the jeweler’s twice to repair that same watch shortly after it had been sold; and he is of opinion that his partner did not go to the said jewelry store very often, for he seldom saw him there; that of the five large strickles in the bakery, he received one from Saint Louis, Mo., another was made here by the carpenter Bait (now absent), another was purchased by a party in El Paso, and two other small ones were with the furniture that they bought from Kooski; that on the afternoon and evening preceding the murder he remained indoors in his house, but does not recall with whom, but thinks it was with his partner and Jorge (George) Springer; that Brudigam spoke to him about the murder, but he does not recollect what he said, nor did he see any watches like the one shown him; that this was the only one which he has seen in possession of Brudigam; nor does deponent know aught concerning the little box; that when he separated from Brudigam he did not take stock of the strickles in the bakery, but is certain, that they were all there; one of the three shown him being the one made by the carpenter, the other brought from El Paso, and the other from Saint Louis.
In the cross-examination of Ficken before Ruperto Martinez, the latter sustained that he saw in Ficken’s possession two watches similar to that in the court, which were given Ficken by Brudigam, and when he took the small box, with sawdust, over there, Ficken was still associated with Brudigam. Ficken (see page 146) being questioned as to whether he was acquainted with Miramontes, replied that he now knows him, having seen him in the jail, but did not remember ever having seen him elsewhere. In the cross-examination (page 225) in the presence of Icusa, the latter said he was acquainted with Ficken, whom he has on three or four occasions taken to the depot in the carriage of Mr. Elecxiri, and added that the murder of Steiner was accomplished by Mauricio, Brudigam, Ficken, and Miramontes; to which Ficken rejoined that he took no part in the transaction. Icusa further stated that the stolen effects were carried away by Mauricio in a blanket, and he was accompanied by Brudigam and Ficken; the latter replying that possibly Icusa knew him (Ficken) but that he (Ficken) did not remember having known him (Icusa). Ficken, in his additional testimony (page 224), stated that it was not Brudigam who killed Steiner, for he was in his house and did not leave it on the night in which the said Steiner was murdered; and, in his additional testimony, on page 268, he added that he did not recognize the kneading stick shown to him, nor were Icusa’s statements concerning him (Ficken) at all true.
It appears, eleventh: That Maximo Below affirms, on page 277, that Ficken went [Page 1212] under the name of Fritz in Cosihuiriachic, which Fritz is the diminutive in German of Ficken; and that when he asked Ficken himself what his name was he had an idea that the latter told him his name was Christian Christiansen, but he is not very positive as to the name Christian; that he well remembers being told by Ficken that his name was Christiansen; that he knew him under that name as having written to Francisco Reimers, clerk of the house of Ketelsen & Degetan; and that when thus recognizing Ficken the latter told him that some people called him Ficken and others called him Christiansen. Being interrogated upon this point (see page 279), Ficken replied that he never went under the name Christiansen, although he remembered that when he came to this city, at the summons of the judge, on presenting himself at the store of Messrs. Ketelsen & Degetan, Mr. Reimers twitted him that he had changed his name from Frederick to Christiansen, which he (Ficken) denied, as in his cross-questioning before Maximo Below (see page 280).
It appears, twelfth: In the investigation touching Refugio Martinez, he (pages 111 and 259) declared that one day in March he said to Miramontes that he had been informed by the Spaniard Santiago that the Gringo had been killed; that Miramontes replied that it was true, and Martinez himself (page 129) when confronted with Miramontes, stated that he was told by Juan Garcia that Miramontes had killed Steiner, that Garcia told him so in the Despedida Jardin, Martinez then saying to Garcia that Carlos Miramontes did wrong in talking publicly, and that all Chihuahua would learn of it; that Garcia (see page 112) ratified his former statement; and in his confrontation with Refugio Martinez (see page 259) Serafin Terrazas (page 109) confirmed the statement of Garcia.
It appears, thirteenth: On page 108 Juan Garcia begins by declaring that he does not know Miramontes, but on the 112th page he himself admits that he knew him, and was also present at a conversation he had with Refugio Martinez, when the latter inquired what persons had killed the American, to which Miramontes answered that in case they denounced him, he (Martinez) should have to appear as a witness, provided he were charged with making away with the American; that a few days later he saw him (Miramontes) in the office of Refugio Martinez, who showed some resentment against Miramontes becaase the latter had not paid him the hire of a horse; that therefore Martinez said it would be well to denounce him; that the deponent (Garcia) did not comply with his duty of informing the authorities, for fear of doing an injury to Miramontes.
And considering firstly: That, from the deductions of the process and from the statements embodied in fractions first, second, and third, it appearing that the fact is established of the violent death and of the robbery of the late Domingo Steiner, as well as the existence of a well-founded criminal act punishable by the law, and subject to criminal process according to the provisions of the one hundred and twenty-first article of the code of penal procedure;
It is considered second, That upon investigation of the charges laid to the presumably guilty parties it appears (under the head of fourth) that the weight of evidence of the witness Angel Terrazas operates against Brudigam, inasmuch as the witness deposes having seen, two days before the occurrence, and on the day itself of the murder of Steiner, an American, short in stature and stout in build, with black whiskers and large head, all of which answer substantially to the description of the accused, Brudigam; that this description is somewhat corroborated by the statement of Ruperto Martinez (see the same fourth heading), who, when speaking to a foreigner at the depot, was asked by the foreigner who had killed the jeweler, and whether any kneading-club was missing, as everybody was saying that Mr. Brudigam was the one who had killed him; that while Martinez denied having seen in Brudigam’s possession the watch found upon his person, he (Martinez) did, in his subsequent declaration, say that he saw in the possession of Brudigam and Ficken four watches similar to that found on Brudigam, which circumstance, in view of the fact that Steiner had some such watches in his stores, gives a color of reason and certainty to the statement of Martinez.
It is considered, third, That Brudigam, in his general denial of participation in the crime, and in his effort to prove an alibi, by stating that on the night of the commission of the crime he was in his house with Ficken and George Springer, has completely failed, for George Springer declares that at 6 or 7 o’clock on the night of February 9 he (deponent)left his work at the house of Edward William, and does not remember whether or no he was afterwards in Brudigam’s bakery; while Ficken declares that from 4 or 6 o’clock he and Ruperto Martinez always start out to deliver bread almost everyday, but that on that day he remained indoors, with whom he does not recall, but supposes it to be with his partner and perhaps with Springer, but is not certain.
It is considered, fourth, That to the above is superadded the weighty circumstance of the delivery by Brudigam to the chief of police on the day of the morning on which Steiner was found dead of the watch, which he said he purchased from Steiner, giving at the same time as a reason for the delivery that Steiner had five or six similar watches, thus apparently endeavoring to establish his innocence in the eyes of the officials, but [Page 1213] which action, far from removing suspicion from Brudigam only serves to intensity the proofs of his complicity; for if he had really bought the watch and no investigation as to its place of purchase were instituted by the authorities, this officious action of Brudigam’s would imply that Brudigam was a self-accuser of the crime.
It is considered, fifth, That Brudigam has not given a satisfactory explanation to rid himself of the imputations written under the fifth heading, wherefore the said imputations strongly indicate his complicity, and his statement referring to Meyer, who told him that he had a little money on deposit with Steiner, and that there was a spy there (Smith), who went every day to ask him about the murder, is easily explainable in the light of Smith’s remark to Ruperto Martinez in the depot.
It is considered, sixth: That while at first Brudigam denied having been in Leguinazabál’s place of business on the night of the 8th of February, he afterwards, when confronted with Albert Meyer in cross-examination (see page 230), admitted that what Meyer had said might be true, and that it might have been at the hour stated, for he (Brudigam) was very drunk then.
It is considered, seventh: That while the testimony of Icusa under the sixth heading serves only for the purpose of inquiry, several facts are deduced from his testimony which go to confirm his statement, such as the kneading-club wrapped up in an American newspaper and other correlative circumstances set forth in the said sixth heading, all tending to prove that Brudigam participated in the crime, striking the deceased with the club; that this fact was more and more proved by the presumptive evidence brought forward in the seventh and eighth headings by the different contradictory statements and the untruths uttered by Brudigam, and finally by other causal propositions from the attorney-general.
It is considered, eighth: That the conjunction of presumptive evidence, as detailed, presents demonstrative proof of the guilt of Brudigam; and that the court holds the said proof as being clear and convincing (see article 408 of the Code of Penal Procedure). That the court so regards it, and considering Brudigam guilty, declares him as amenable to the sentence of capital punishment as provided in articles 49, 560, and 561 of the Penal Code, for the crimes of robbery and of deliberate and premeditated homicide, with malice and forethought.
It is considered, ninth: That the confession of Icusa, referred to in part of the ninth heading, bears the character of full proof against the accused Icusa, who had himself delivered it (see article 395 of the Code of Penal Procedure). And that the proof aforesaid constituted him an accomplice in the crime under consideration (article 50, paragraph 4, of the Penal Code) for having consented to the impunity of the offense by virtue of the agreement which preceded that of participating in the stolen effects; that therefore he should be considered as such accomplice; and, in consequence, the penalty of ten years’ hard labor should be applied to Icusa. (See article 219 of the Penal Code in connection with the first fraction of the one hundred and ninety-seventh article of the same.)
It is considered, tenth: That as in the case of the accused Icusa there only operate the aggravating circumstances cited in article 45, paragraph 12, and of article 47, paragraphs 1, 4, and 14, for failing to speak the truth, for having admitted retribution, for having had the assistance of other persons, and for having created great alarm in society by a crime where aggravating circumstances all combine and there are none such attenuating; that, therefore, the penalty is subject to increase from the term of ten years, as prescribed in article 35 of the Penal Code, and that the average of ten years should be taken; that, under the stipulations of article 231 of the Penal Code, when solely aggravating circumstances exist, the penalty is augmented from the mean term to the maximum, which is calculated (article 69 of the Penal Code) by adding one-third to the mean or medium period; that, therefore, the penalty of ten years is increased by three years and four months; and the convicted Icusa shall therefore suffer at hard labor for thirteen years and four months.
It is considered, eleventh: That the penalty to be sustained by Icusa, exceeding two years, he should understand that he is to suffer the same, with an addition of one-fourth of time, as specified in articles 71 and 72 of the Penal Code, and that he is entitled to the grace allowed by the seventy-fourth article of the code aforesaid.
It is considered, twelfth: That as regards Frederick Ficken, the reply he made to Icusa, and which is mentioned under the tenth heading, operates strongly against him, for it implies a confession of participation in the crime; that Ficken, when replying to Icusa, upon the latter stating in the cross-examination that he, Ficken, Mauricio, Brudigam, and Miramontes murdered the jeweler, asked Icusa whether he (Icusa) did not participate in the murder; that this reply by Ficken, clearly substantiated as it is, is a confession on his part of participation in the crime, or of being a principal therein; and therefore article 395 of the Code of Penal Procedure is operative against him.
It is considered, thirteenth: That there is another circumstance that weighs against the aforesaid Ficken; that according to Ficken’s statement there should have been five [Page 1214] kneading-sticks in the bakery—three large and two small—all of which he insisted were complete when he left Brudigam’s employ, while the fact is that one of the clubs is missing.
It is considered, fourteenth: That further damaging evidence against Ficken is found in the fact that he delivered, by Brudigam’s order, the watch to the chief of police, as well as his statement that he did not know what Brudigam had said to him touching Steiner’s death; that something was said to him is reasonably certain, nor is it possible that Ficken should altogether forget what was said to him about an occurrence so atrocious and so well known; nor was it a circumstance of less moment that he should have changed his name at Cosihuiriachic, as is testified by Maximo Below and Francisco Reimers, and admitted even by Ficken himself, who said that some called him Ficken and others Christiansen; and that, finally, he was unable to establish an alibi to the effect that on the night of the murder he was in his house; that, therefore, in view of the weight of presumptive evidence (article 408 of the Code of Penal Procedure) and, above all, Ficken’s own confession, there is full proof of his guilt as principal in, and abettor of, the crime, and that he is deserving of capital punishment (see articles 49, 560, and 561 of the Penal Code) for the crime of robbery and premeditated homicide with malice and forethought, perpetrated upon the person of the late Domingo Steiner.
It is considered, fifteenth, that, touching Refugio Martinez, he, as is set forth in the twelfth heading, knew, not only through Miramontes, in the month of March, 1885, of the murder and robbery of Steiner, but, even before that time, knew of the occurrence from the Spaniard Santiago, who is none other than Santiago Icusa, alias Bustinzar, and was told also by Juan Garcia, to whom, in this connection, Martinez said that Cárlos Miramontes did wrong in talking about it, for thus all Chihuahua would learn of the occurrence; that in view thereof Martinez appears in the rôle of harborer of crime of first class (article 56, paragraph 2), for, being in duty bound not to impede the investigation of the crime and the punishment of the guilty (article 1, paragraph 3 of the penal code), he acted in contravention to this course of justice and is therefore held to undergo the penalty specified in article 220 of said law, as a harborer of crime.
It is considered, sixteenth: That the accused Juan Garcia, being in like category with Martinez, he should be considered also, according to his own confession, as a harborer of crime, and subject to like penalty with Martinez. In view of the foregoing the court doth hereby issue the following findings:
- First. The legal decision of the lower tribunal of date October 28 last, is modified in the following tenor:
- Second. The penalty of capital punishment, to be executed according to law, is imposed upon the accused Henry Brudigam and Frederick Ficken as principals in the robbery and murder committed on February 9, 1885, on the person of the late Domingo Steiner.
- Third. The penalty of thirteen years and four months’ imprisonment with hard labor is imposed on the accused Santiago Icusa, alias Bustinzar, for complicity in the said crime; the said penalty to commence from the date of his imprisonment, subject to retention and reprieve.
- Fourth. The penalty of eleven months of “arresto mayor” (detention for from one to eleven months) is imposed on Refugio Martinez as accessory to the crime in question, in harboring the same, the time of his sentence being computed from the date of his imprisonment; and the said Martinez is to be at once reduced to jail.
- Fifth. It appears that Juan Garcia having suffered in excess of the penalty assigned to accessories in crime, he shall be at once set at liberty and his sentence be considered as being fulfilled.
- Sixth. The right of civil procedure is left intact, to be employed by whomsoever may use it, against the accused Brudigam Ficken, and Bustinzar alias Icusa, and the prisoners are so advised.
- Seventh. The case remains open against the prisoner Antonio Mauricio, as he is still at large.
- Eighth. Let this testimony be referred back to the judge of first instance, and copy thereof be taken to send to the governor of the State for its publication. Advise Hon. Miguel Aldaz, magistrate of first instance of the supreme court of justice of the State, passed upon appeal and adjudged and sentenced.
I attest.
Miguel Aldaz. [rubric]
E. Montes de Oca. [rubric.]
Secretary.
Secretary.
- Intoxicant made from the maguey plant.↩