Mr. Hay to Mr. Hunter.

No. 236.]

Sir: Referring to your dispatch No. 227, July 22, 1899, with inclosure of notes exchanged between you and the minister of foreign affairs of Honduras and of the proceedings had by the Honduranean tribunals in the case of the sentry, Cruz Rosales, for the shooting of Frank Pears, I have the honor to inform you that the case has been carefully considered, with the result that the Department has reached the conclusions which follow.

Mr. Pears was shot in the city of San Pedro Sula, Honduras, on the evening of January 31, 1899, from the effects of which, on February 2 following, he died. On the 16th of that-month a commission consisting of Mr. Fiallos, minister of justice, and Mr. F. H. Allison, United States consul, examined the testimony of five witnesses given before a court of preliminary inquiry, which had been held on the same evening of and immediately following the shooting, while the facts were fresh in the recollection of the witnesses, and there was no apparent motive or attempt on their part to color or distort the facts against their own Government.

On the evidence taken, including the statement of the sentinel himself and the testimony of his four comrades, the captain, lieutenant, sergeant, and corporal of the guard, the following facts were established:

1.
Mr. Pears was shot on the evening of January 31, 1899, by the sentinel, Cruz Rosales.
2.
At the time he was shot he was not fleeing, but advancing toward the sentinel.
3.
The sentinel did not call the guard before he shot.
4.
The other persons with Pears, if any, did not flee until after he was shot.
5.
The sentinel stated that he was instructed by the corporal and sergeant to fire into any group after challenges, receiving no answer.

[Page 686]

On the foregoing facts, which may be accepted as true unless overthrown by the evidence taken in the subsequent trial of Rosales, the conclusion is irresistible that the sentinel, in shooting Mr. Pears, acted in violation of article 41, which provided two safeguards for the protection of Pears, both of which were disregarded, namely: “If the challenged party gives the wrong reply or shall fail to answer he will repeat the challenge three times, and if the same thing occurs he will call the guard to arrest them, and in case they flee, giving by this act a foundation of suspicion, he will shoot them.”

There was no call of the guard; there was no ground of suspicion within the precept of article 41 justifying the shot.

Pears was therefore unlawfully slain. He was intentionally slain, for every man is conclusively presumed to intend the natural consequences of his acts. Rosales stated that he “called out to them ‘Halt! Who comes there?’” in a loud and clear voice; that as they did not reply to any of the challenges, but continued to advance, he fired a shot at them with his rifle and saw one of them fall and the other two ran away. He added that in consequence of this place being in a state of defense the instructions given to him by the corporal and sergeant of the guard were to fire upon any group advancing toward the trenches, if they did not halt upon being challenged three times; that in spite of these instructions he challenged the group four times.

Affidavits of witnesses, taken by the United States consular agent, Mr. J. M. Mitchel, show that Mr. Pears left his office at 8.25 in the evening, and within three minutes thereafter he was shot; that when shot he was standing alone. Mr. Pears himself stated that he “was standing in the light of the street lamp, where the sentinel could see him perfectly well; that he (Pears) stood perfectly still, facing the sentinel;” that he “has been in the habit of passing back and forth between his house and office and had never been challenged before; that when he heard the challenge, although he did not think it was meant for him, he thought best not to move.”

Commander Logan, of the U. S. S. Machias, reports that “it is a fact that martial law was to have ceased on January 6, but as a precautionary measure the Honduranean Government extended the time to January 29, at which time it actually ceased and civil law became supreme.” He reports that “no attack from any direction was expected,” and in corroboration states the fact that “on February 1 the outposts in the barricades were removed and several barricades were torn down,” and “January 31 was a holiday and gambling was going on in all of the streets, which is only permitted on public feast days,” facts inconsistent with any serious apprehension of an impending attack. These facts may be considered in connection with the facts developed before the court of preliminary inquiry on January 31. The further questions arise:

1.
Are the foregoing facts and conclusions overthrown or substantially modified by the subsequent proceedings of the Honduranean authorities?
2.
If there was reasonable doubt as to the liability of that Government in the first instance, does that doubt remain?

On the evidence taken before the court of preliminary inquiry that court decided that Rosales had discharged the duty imposed on him by article 41, and the case then came for trial before Colonel Cabero, special judge of first instance at San Pedro Sula, who, on February [Page 687] 23, returned the record to the military court of peace for further examination of Rosales. Rosales appeared before the latter court and made an unsworn statement, in which, for the first time, he says that he called the guard and the persons in the group ran away in silence and then he shot; that he “fired a shot with my (his) rifle at the said group of persons in order to stop them.” He adds that “even after the shot the other persons in the group continued the flight which they had begun when challenged.” The testimony of his comrades supplies the singular omission in their first testimony of the remarkable facts that Rosales called the guard to arrest the group and that they began to flee before the shot. While it is not remarkable that all of the witnesses did not recall and state all of the facts in their testimony given on the evening of January 31, it is remarkable that not one of the five witnesses did, in their testimony of February 23, then recall and state either of these exculpatory facts.

An order for the arrest of Rosales was then issued and he was arraigned before the special military court of first instance on the charge of manslaughter. Counsel was assigned him, and the court appointed to that responsible position Capt. Francisco Leiva as special prosecuting attorney in the case. The trial began March 7, 1899, and the prosecuting attorney at once entered upon an elaborate defense of Rosales. In stating the case he asked that “If it shall appear in this case that the sentry, Cruz Rosales, obeyed his instructions, the court shall decree a stay of proceedings or the final quashing of this unjust prosecution instituted against a Honduranean soldier who knows how to do his duty.” But even he did not then venture to state that Pears or his companions fled before the shooting.

After hearing the statement of the prosecuting attorney, followed by that of Rosales’s counsel, the court held that there were sufficient grounds for proceeding to the trial, and “the stay of proceedings requested by the prosecuting attorney is (was) refused,” and twenty days were given to take evidence. To this the prosecuting attorney objected. He objected that “the refusal of the stay of proceedings, which he has asked in the present case, and the consequent opening of the case for the hearing of evidence, are not in accord with the law, as the arguments which he has adduced in his request for the stay of proceedings, clearly corroborated by the counsel for the accused, are of sufficient weight to justify such stay of proceedings, as the evidence furnished sufficient proof that the order for the imprisonment of the sentry, Cruz Rosales, ought not to have been issued.” He added the significant statement that “the preparatory judge failed to investigate certain pertinent matters of great importance in the decision of the case,” and that “I do not think it is necessary for the defense to prove the orders which were given to the soldier.”

The evidence of various witnesses was taken tending to show the character of the accused for honesty, sobriety, and peacefulness, as well as his poverty, and to show the public notoriety of an apprehended attack on the city of San Pedro Sula at the time by the Honduranean emigrants.

The judge certifies that “the prosecuting attorney produced no evidence.” Apparently all the efforts of both counsel were directed to the common end of securing an acquittal of the accused. The zeal displayed by the prosecuting attorney is notable. The evidence having been closed he made his statement to the court and asked the court to [Page 688] acquit the defendant; but the case was submitted to the jury on April 24 on seventeen special interrogatories. The prosecuting attorney then opened the case and said “that the clearness of the record in the case removes all idea of the guilt of the accused, as he had maintained in his allegation of evidence.”

Together with answers to other interrogatories the jury found that Rosales, “in firing the shot which wounded Don Francisco Pears, had no intention of wounding or killing him,” and that “in firing the said shot he acted without gross carelessness.” It is unnecessary to add that the jury found every fact which the prosecuting attorney, Rosales, and his counsel could have desired, after a careful study of article 41. The court decided that Pears was killed unintentionally and without gross negligence; that the act of shooting was, under all the circumstances, lawful and innocent, and discharged him.

The trial was concluded on the 24th or 25th of April, and a copy of the proceedings was in the possession of Mr. Caesar Bonilla, minister of foreign relations, when he wrote to the American minister the note dated June 5, 1899, in which it is stated that in the preliminary investigation “the declarations of all the witnesses present at the deed were taken, and are uniform in assuring that the sentinel, Cruz Rosales, fired the shot which caused the death of Mr. Pears after the former kept silence, notwithstanding his being warned three times as military ordinance required.”

In the report dated March 4, 1899, made by the minister of justice, Mr. Fiallos, to the minister of foreign affairs, Mr. Bonilla, he states, after a personal investigation of the affair in company with Consul Allison, that the distance between the points where the sentinel and Mr. Pears stood was 190 feet, or about 75 paces, instead of 40 to 50 varas, or about 137 feet, as required by the military ordinance before shooting. He reports that at the time of the shooting there were reasons for maintaining in the city a vigilance, but that military law had alreadyceased two days previous. Mr. Pears was therefore under the protection of the civil law, and the abrogation of the state of seige on January 27 is sufficient proof that no attack was apprehended, and that the shooting was without legal justification. The position thus stated by the minister of justice, from which the illegality of the act appears, was shifted at the trial by the prosecuting attorney and counsel for the accused, in order to show by the witnesses that the shooting occurred at a distance of 50 varas, or about 137 feet, between the sentinel and Pears, and to show all other conditions necessary to justify the shooting.

Considering the manner of the prosecution before the military court, it is impossible to confide in its findings of facts or in its conclusions. The far more consistent and reasonable view is the one stated in said report of the minister of justice, which was characterized by apparent candor. He says, speaking of the witnesses who testified at the preliminary examination on the evening of January 31, “there being in favor of their declarations the circumstance that they were the best prepared to witness the occurrence, as much on account of the place in which they were situated as because it was early in the evening, and because, being almost strangers to one another, there was no motive to induce them to falsify.” He concedes that the sentinel could and ought to have acted with greater prudence, but the military court exonerated him and thereby justified and approved the act. If there was any doubt of the liability of the Government of Honduras in the [Page 689] first instance for the act, that doubt is dispelled by the later action of its military authorities. Rosales was not even enrolled as a soldier. He was a raw recruit, ignorant and illiterate. It is not necessary to impute malice to his act. But that Pears was wantonly shot through the sentinel’s gross ignorance of his duty and through the gross ignorance or negligence of the officers of the guard and of the post in failing properly to instruct him, can not be doubted. Either this is true, or the alternative conclusion is inevitable, that he was intentionally shot. In either case it was done in violation of the military ordinance. And there has appeared no serious purpose on the part of the Honduran Government to punish either the sentinel or his superiors. Under all the circumstances, the Government of Honduras ought in equity to pay the indemnity demanded.

In view of the foregoing conclusions it becomes the duty of this Government to insist upon the payment of the indemnity of $10,000 demanded in my instruction No. 131, March 16, 1899. You will therefore inform the Honduran Government of the conclusions arrived at by the United States.

I have, etc.,

John Hay.