File No. 212.11G16/13.
[Inclosure 2.]
Ambassador Wilson to the Minister for
Foreign Affairs.
American Embassy,
Mexico, June 21,
1910.
No. 295.]
Mr. Minister: I have the honor to
acknowledge the receipt to-day of your excellency’s note of the 18th
instant (No. 32479) with reference to the provisional detention of
Heliodoro Garcia, who is charged with assault with intent to commit
murder in California.
Your excellency requests to be advised whether the proofs, as
required by treaty, have been received by the embassy; and in the
event that they have not, asks to be informed when they can be
presented. Your excellency furthermore states that the 40-day
detention period, as prescribed by treaty, has expired.
With regard to the formal proofs I have the honor to advise your
excellency that I have this day requested the necessary information
from my Government, which will be communicated to your excellency in
due time.
With regard to the second point in your excellency’s note, I regret
that your excellency differs from the principles accepted by the
department for foreign affairs in its note of April 12, 1909, which
was an acquiescence in the policy of extending the 40-day
provisional detention period when, because of distances, unavoidable
delays in securing testimony, or for some other unforeseen reason,
it was not possible to submit the proofs within those limits;
because while it is true that Article X of the extradition treaty
does prescribe a 40-day detention period, your excellency will agree
that the extradition treaty was intended primarily to serve the ends
of justice; and if a fugitive, against whom there is a clear case,
is allowed to go free because of a strict adherence to this article,
it is apparent that the true ends of justice will not be furthered;
and furthermore, while the crime is of course primarily an attack on
society in the place where it was committed, it is nevertheless
certain that a criminal at large constitutes a menace to and an
offense against the society of any place where he may be found,
which goes to show, and I am sure your excellency will agree with
me, that justice is not confined to one community, but is
international; and that by extradition not only is the justice of
the place where the crime was committed satisfied, but also the
justice of the place where the fugitive may be found is
vindicated.
It is, however, not necessary to discuss at length the various
equities, acquiesced in by your excellency’s Government, of this
policy, because, strictly speaking, the question of an extension of
the 40-day period has no bearing on the case now under
consideration.
As your excellency will note, my request of April 15 asked for the
provisional arrest and detention of Heliodoro Garcia on the charge
of murder, on which charge he was apprehended on April 23. My note
of June 4, however, withdrew this charge, and asked for his
provisional arrest and detention on the charge of assault with
intent to commit murder. After a careful study of the extradition
treaty in force between your excellency’s and my Government, I have
not been able to find any provision prohibiting the rearrest of a
fugitive on a second charge, whether the first one was not proven or
whether, as in this case, it was withdrawn; and inasmuch as
paragraph 21 of Article II of the extradition treaty declares
assault with intent to commit murder to be an extraditable crime, it
would appear that even if the 40-day detention clause were to be
interpreted literally, Garcia’s detention can only be considered as
commencing prior to June 4, which was the date on which his
apprehension on the charge of assault with intent to commit murder
was requested.
I have entered thus fully into a discussion of this case for the
reason that I fear my two previous notes may not have been entirely
understood; and I have the honor to request the provisional arrest
and detention of Heliodoro Garcia on the charge of assault with
intent to commit murder in California.
I avail, etc.,
