The Case of Luis F. Velázquez

by Pedro Albizu Campos

Date: 11 de January de 1935

Source: Pedro Albizu Campos, Obras Escogidas 1923-1936, Tomo II (San Juan: Editorial Jelofe, 2013)

Country: Puerto Rico

The case of Luis F. Velázquez

Introduction On June 14, 1932, an event was held at the Municipal Theater of San Juan (now Teatro Tapia) in homage to the North American flag. The governor, James R. Beverly, and the Chief Justice of the Supreme Court of Puerto Rico, Emilio del Toro y Cuebus, participated. Mr. del Toro was, in turn, the President of the Celebration Committee of the Bicentennial of the Birth of George Washington. Luis F. Velázquez, a member of the Nationalist Party, went the next day, June 15, to the office of Judge Emilio del Toro. He arrived in front of the Judge and said: “The acts such as the one last night that have been perpetuated in the country and that you so conspicuously sponsor, constitute an open challenge to our Homeland; and that offense that you inflict on the country I have taken up to return it to you for being a traitor and a scoundrel”. Immediately he approached him and slapped him in the face. For this act, Mr. Velázquez was accused in the Municipal Court (now District Court) for the crime of attacking and assaulting a public official in the performance of his duties. He was decla- red guilty and sentenced to one year in prison. Not satisfied with his conviction, Velázquez, through his attorney Lcdo. Albizu Campos, requested and obtained a trial de Novo before the District Court (now Superior Court), San Juan Division. He was tried and convicted of the same crime and sentenced to the same penalty. Velázquez then appealed to the Supreme Court of Puerto Rico.

In the Supreme Court, Chief Justice del Toro, recused himself. It was up to the four associate justices to resolve the case: the Americans Adolph G. Wolf and Harvey M. Hutchinson, and the Puerto Ricans Félix Córdova Dávila and Pedro de Aldrey.

The appellant Velázquez alleged that the events occurred in the Office of Judge del Toro in the Supreme Court of Puerto Rico, then located on the second floor of the Cuartel de los Dominicos (known as the Convento de los Dominicos). This building had become the property of the United States government, so the courts of Puerto Rico lacked jurisdiction to judge him. His argument was rejected. In an opinion signed by Judge Wolf, the Supreme Court of Puerto Rico affirmed the appealed sentence. (See: Pueblo v. Velázquez, 45 D.P.R. 905, 1933). The accused appealed, through his attorney Lcdo. Albizu Campos, to the United States Court of Appeals for the First Circuit, located in Boston. This Court reversed the Supreme Court and ordered the filing of the complaint against Ve- lázquez. (See: People v. Velázquez. 77 F 2nd. 431, 1935, ехре- diente número 2923). The Court concluded that, effectively, the government of Puerto Rico lacked jurisdiction over the properties transferred to the government of the United States. It also noted that it constituted an act of mere tolerance on the part of the United States government that the military authorities allowed the Supreme Court of Puerto Rico to occupy part of the building of the Cuartel de los Dominicos, which did not confer juris- diction to the government of Puerto Rico. The government of Puerto Rico appealed to the Supreme Court of the United States but it refused to review the case. (See: People v. Velázquez, 296 U.S. 602, 1935). Here we have included part of the transcription of the evidence of the case; an allegation of assignment of errors; a motion on lack of jurisdiction; and the allegation submitted by Albizu Campos to the Court of Appeals in Boston.

IN THE DISTRICT COURT OF THE JUDICIAL DISTRICT OF SAN JUAN, PUERTO RICO THE PEOPLE OF PUERTO RICO LUIS F. VELAZQUEZ, Accused.

TRANSCRIPTION OF EVIDENCE

Hon. Pablo Berga, Judge.

On June 30, 1932, this case was called to oral trial, appearing the People of Puerto Rico, represented by Hon. Domingo Massari, Prosecutor, and the accused, Luis F. Velázquez, by his attorney Lcdo. Pedro Albizu Campos.

The parties announced that they were ready for the hearing of the case, proce- ding as follows: SWORN STATEMENT OF HON. EMILIO DEL TORO SR. ALBIZU CAMPOS: Q To which act was the accused referring that had just been celebrated on June 14?

R In reality, he did not refer to any act, but I infer that he could refer to the only one I performed the day before: it was to intervene by pronouncing the opening words in an event held at the Municipal Theater of San Juan on Flag Day, on June 14. During this year, the bicentennial of the birth of George Washington is celebrated in the United States and even throughout the world. I am the President of the Insular Committee, which is in charge of the celebration of the bicentennial in Puerto Rico, and which is composed of representatives of all the activities of the island. The plan for celebrating that bicentennial is that it covers from February 22 to Thanksgiving Day, in November, remembering all the glorious dates in history American, and giving lectures in attention to the personality of

George Washington, the father of the country. On June 14, it was organized by the Sub-Committee of Civic Acts of the Insular Committee the act to which I refer, at the request of the representatives of the sons of the American Revolution, and I was asked to open the act. In the act took part the Governor of Puerto Rico, Monsignor Torres, representing the Catholic Bishop of Puerto Rico, the President of the Senate, Mr. Asenjo… The program was directed by the Executive Secretary of Puerto Rico, Mr. Saldaña, and I opened the act. Perhaps only to that one can this gentleman have referred. I cannot explain of another public act in which I intervened during the day of yesterday, which was June 14. Q To which homeland is Your Honor referring? R To the homeland United States of America. Q And to which homeland was Your Honor referring a moment ago when he said “the Father of the Homeland”? R United States of America. Q Are you, in your capacity as judge, obligated to sponsor these acts? SR. FISCAL: That is asking the witness for an opinion. R I have said that I am ready to answer everything in this case. I am not obligated as President of the Supreme Court to participate in those acts, but as a citizen of Puerto Rico and President of the Supreme Court that I am also I intervene in those acts in full awareness that I am carrying out a noble, patri- otic, good work and that I am acting in the fulfillment of my duty. Q Have you sponsored other acts of this nature in Puerto Rico? R I have sponsored, I have intervened for many years in acts of this nature. Q Do you believe that they are compatible with your functions as judge, when those acts are political, bitter and partisan in Puerto Rico? R That act is not political in the partisan sense nor is it bitter, as you say: it is a fundamental act. It is a celebration held in the entire nation, and we attend it to realize and disseminate the principles that the flag of the nation symbolizes. It is not, therefore, a partisan act or a bitter act, but an essentially fundamental act.

Q To which nation is Your Honor referring? R I am referring to the United States of America. Q Where were those acts celebrated? R In the Municipal Theater of San Juan. Q In which country were they celebrated? R They were celebrated in the territory of Puerto Rico. Q They were celebrated in Puerto Rico. Do you know of the reception that that specific act had in the country, before it was celebrated?

SR. FISCAL: I wish to state that, although the witness is willing to answer all the questions that are asked of him regarding this incident, I make my opposition so that Your Honor sustains me. SR. ALBIZU CAMPOS: The question is aimed at discovering the motives that the accused had, which is to distinguish this case from the current cases that come before Your Honor and the public environment, since the witness has said that he sponsors these acts as a national good, as a general good. It is good that the Judge, to appreciate the value of that testimony, it is good that he knows that that act was harshly criticized, not only by the nationalists, but by opposing sectors; and we have press such as La Linterna, which is from the Unión Republicana, and La Corres- pondencia de Puerto Rico, which is also from the Unión Republicana, harshly criticizing those acts and as the witness says that it is a good. SR. FISCAL: The circumstance that a sector of opi- nion can censure certain acts, does not exclude in absolutely the opinion of the witness as to that he has considered it fundamental.

R Judge, do you want to allow me an observation? I have worked for so many years in the Supreme Court and I know how the facts are purified there and how the mind and conscience of judges is always inclined to recognize as many rights as may exist in favor of the accused, that I would like that if the law is going to be interpreted, it is interpreted with all amplitude for the accused. This same trial is demonstrating the greatness of the institutions that we enjoy and the security of freedom in Puerto Rico, and how neither the Governor nor any official, nor anyone can abuse anyone on the island of Puerto Rico, without their right

is purified and guaranteed and granted, how much last atom of right may have in its favor. Therefore, Judge, if in something I can influence you, and forgive me if I make this statement in a court of justice, it is so that all the amplitude is given to the accused that is possible, interpreting the law in the most ample form that is possible, so that he can demonstrate everything he wants to demonstrate before the courts of justice. Q The question is if Mr. del Toro knows the opinion of that act, or knew the opinion, before it was celebrated, manifested by press contrary to nationalism. R I did not know it. Q Do you not know the editorial of the newspaper La Linterna, dated June 18, after that act? R No sir, I do not know it. Q Newspaper that is from the Unión Republicana. Did Your Honor know the opinion issued in the edition of La Correspondencia of Friday, June 17 about that act? R I do not know it. Q Newspaper also that belongs to the Unión Republicana. Does Mr. del Toro know that those acts were considered offensive for the great majority of Puerto Ricans? R I do not know it nor can I imagine it even. They can only be consi- dered offensive by minds really misled, that some day will open to the light. Q Do you not believe that those who sponsor those acts are more misled? R No, no; to achieve for this country the rooting of the institu- tions that we enjoy is to fight for its liberalization. If ever it could be founded in the future any republic in Puerto Rico, it would be through the practice of these great institutions, following the path that they mark. Q You, as President of the Committee of the Bicentennial of the Liberator of the United States, where were you seen? R Well, undoubtedly I was seen, more or less, in my office, in my house, in the different meeting places; generally the meetings of that committee have been held, for being more accessible, the offices of the Executive Secretary; almost all the meetings have been held in the offices of the Executive Secretary of Puerto Rico. Nothing more.

SWORN STATEMENT OF LUIS F. VELAZQUEZ SR. ALBIZU: Q What is your name? R Luis F. Velázquez y Rodríguez. Q What is your age? R Forty-two years. Q Are you married or single? R Married. Q Do you have children? R Yes sir, I have two boys who are in the room, one is in the University and another has passed to the first year; and a girl more who is in seventh grade. Q What do you do for a living? R Commissions. Q Do you belong to any society in this community? R Yes sir, I belong to the Oriente of the Gran Logia Sobera- na of Puerto Rico. I am a member of the Asociación Zeus; I belong to the Board of Directors of the Association of Parents and Teachers of the school Julián E. Blanco; and I also belong to the National Board as a member of the Nationalist Party of Puerto Rico. Q Please declare what happened on the day of the events between you and Mr. del Toro. R I, on Monday 13, in the morning, read as usual, El Mundo, and I learned of a celebration that was to be held the day following, 14. This celebration was the object of a proclamation signed by the Governor of Puerto Rico dated Saturday 11, and which was published to the community of Puerto Rico in the newspaper El Mundo of Monday 13. As a celebration in atonement to the Puerto Rican flag for the events that occurred in the Capitol of Puerto Rico had been celebrated by the Nationalist Party, in which I militate, I, in my sentiments as a son of this land, felt offended that in a so unusual and almost compulsive form tried to make a repulse to the effectiveness of that patriotic celebration celebrated in the southern part of the island six days before that proclamation was signed. I really considered that the time had come to put a stop to this feeling that prevails in the country where prominent men are doing an unpatriotic work. I went to visit Mr. Emilio del Toro, as President of the Celebration Committee of the Bicentennial of George Washington, liberator of his

homeland, not ours. Consequently, on the morning of the 15th, Wednesday, I visited the office of the corridors of the place where he could be considered accessible, and a concierge told me that he was not there, but that if I wanted to see him the most opportune moment was at a quarter past one, when he rested in his office of the Court. Then I came at that precise time, which was a quarter past one when I was going up the stairs, and I found the two concierges who were in the corridor, and who have just testified at this moment. I inquired if Mr. del Toro was visible; then the first gentleman who declared told me that he was, but that he had to wait a moment, because he was resting. Then I sat in the corridor and as a matter of two or three minutes this gentleman who spoke to me got up, came inside and returned with a block of paper begging me to put my name on it. I then told him that it was not necessary, that I had my card. In my cards I put my address, because these cards I use of the houses that I represent. We, the commission agents, do not have personal cards, but we enable these cards that the houses that we represent provide us. I gave him the card and I hear that Mr. del Toro, from inside, tells him, “Please let that gentleman pass”. Then, this first witness who declared of thick glasses, went to the door and says to me, “Caba- llero, please come in”. I then got up, followed towards the place where this gentleman was, I turned around, I pushed a screen and I was facing Mr. del Toro, who was standing in front of his desk, looking towards the part where I was entering. The gentleman, very affable, says to me, “Good morning”. I answered the greeting and says, “Please sit down”. I say, “It is not necessary, thank you very much, it is a matter of a moment”. And then I took several steps to approach him. The table is quite extensive. On the table it seems that there were glasses and debris of food or fruits, in the middle of the table. As I approached and stood in front of him, I say, “To begin with, I have to warn you that I am a nationalist”. This phrase I said to him in a very slow tone, calmly, in the consciousness of what was the effect that I expected to operate in this gentleman. He received them as a shock, that is, as a strong blow, and he says to me, “Well, please, sit down, have calm, let’s talk”. I say, “We do not have to talk about anything. You are going to do me the favor of hearing what I have to tell you”. And then,

immediately afterwards, I say to him: “The acts such as the one last night, have been perpetuated in the country and that you so conspicuously sponsor, constitute an open challenge to our homeland; and that offense that you inflict on the country I have taken up to return it to you, for being you a traitor and a scoundrel”. And with my right hand I gave him on his face, not with the idea of doing him bodily harm, but with the idea of inflicting on his dignity as a man, an offense that he could settle on any other ground. But Mr. del Toro seems that he did not understand that. Then he started in this form, to throw jinque- tazos at me. I did not lose control. I did not return the blows that he threw at me, because he never reached me in any part of the body. I would not have allowed it. Then I began to retreat with all the calm of a man who is going to make a visit, as I did to the gentleman who I expected to visit. Then, going backwards I passed the screen, and the two concierges, who were there, seeing that I was leaving in that form, with my back, that I did not attack, but that I protected myself, they remained absorbed looking at me, I turned around and continued ade- forward through the corridor, I went down the interior staircase, I fell to the patio and I left the local. That is all that has happened. Q Do you know if Mr. del Toro despite being a Judge, is dedicated to this systematic Yankophile propaganda? R Yes sir. Many times I have criticized in meetings of friends and strangers this attitude of Mr. del Toro. Q Do you know what happened to Mr. del Toro for that propaganda at the University of Puerto Rico with the students? FISCAL: I object, for being immaterial. SR. ALBIZU: That goes in regards to the reputation of the witness principal of the accusation. THE COURT: The court sustains the objection. SR. ALBIZU: With our exception. Q Do you know if that act sponsored by Mr. del Toro was censured by the press adverse to nationalism? SR. FISCAL: I also object to that question. THE COURT: The court sustains the objection. I am not interested. SR. ALBIZU CAMPOS: With our exception. Nothing more with the witness. SR. ALBIZU CAMPOS: We offer and submit as proof aimed at proving that the motive of the accused is not a criminal motive, it is not ánimo furandi, nor a vulgar criminal who comes before Your Honor, the edition of La Correspondencia de Puerto Rico, a newspaper of this capital, of Friday, June 17, 1932, which contains an article entitled “The homage to the flag in the municipal theater”, by Mr. S.M. Alfaro. The intention of this accused is vital. If the Prosecutor does not prove that it is a criminal attempt, this accusation cannot be sustained; and this goes aimed at denying any criminal intent of the accused.

SR. FISCAL: The newspaper is inadmissible evidence also. THE COURT: The court sustains the objection, seen section 4 of the law on Aggravated Assault and Battery, establishing the defenses for the same. So that the newspapers can remain as evidence offered and not admitted.

SR. ALBIZU CAMPOS: We take exception. The edition of La Correspondencia de Puerto Rico is offered-so that it is clearly stated in the record a newspaper of this capital, and of it the article entitled “The homage to the flag in the municipal theater”, by Mr. S.M. Alfaro, stating that that newspaper is organ of the Unión Republicana, antinationalist party. A newspaper that is not nationalist. And it is offered for the same purpose, with the permission of the court, number 347 of La Linterna, weekly that is published in this city of San Juan, edition of Saturday, June 18, 1932, the editorial of said edition harshly censuring the celebration of the act to which Mr. del Toro referred; stating that this newspaper is also an organ of the Unión Republicana, which is a party that is not nationalist.

SR. FISCAL: Of course, it is understood that when making the objections to this evidence that the Prosecutor has not admitted that these newspapers are organs of a certain political party. THE COURT: The court does not admit them but orders that the articles remain in the record as evidence offered and not admitted.

SR. ALBIZU CAMPOS: With our exception. And that is our evidence, Judge.

THE PEOPLE OF PUERTO RICO V. LUIS F. VELAZQUEZ, Accused

ALLEGATION

To the Honorable Tribunal: The accused through his attorney who subscribes respectfully submits to the consideration of the Honorable Tribunal the following allegation: ERROR ASSIGNED The lower court erred fundamentally:

1. In holding that the accused had committed the crime of Assault and Battery;
2. In holding that he had committed that crime with aggravating circumstances;
3. In imposing on the accused, in the event that he had committed the crime imputed to him an unusual penalty;
4. In sustaining the objection of the Prosecutor to prevent the accused in his direct testimony to answer this question: “Do you know what happened to Mr. del Toro for that propaganda in the University of Puerto Rico with the students?” (p. 23 of the record);
5. In sustaining the objection of the Prosecutor to prevent the accused in his direct testimony to answer this question: “Do you know if that act sponsored by Mr. del Toro was censured by the press adverse to nationalism?” (p. 23 of the record);

6. In declaring inadmissible a number of the edition of the newspaper La Correspondencia, of June 17, 1932, non-nationalist newspaper that is published in San Juan de Puerto Rico and that contains an article entitled “The homage to the flag in the municipal theater”, by Mr. M. Alfaro;

7. In declaring inadmissible the editorial of La Linterna, non-nationalist weekly that is published in San Juan de Puerto Rico (p. 25 of the record).

CIRCUMSTANCES The parties involved in this case represent the extremes in matters of political opinion in Puerto Rico. Mr. Velázquez, the accused, is a radical separatist, Mr. del Toro is an annexationist, devoted to the cause that he believes is good. This court is aware of the political environment that prevails in a nation intervened like ours by a foreign power, and is aware of the special political environment in which we are debated. In the serene and just appreciation of that situation that worries everyone deeply because it entails nothing less than the definitive status of our country, lies the justice of the ruling that must fall in this case. That serenity is invoked from a court whose President is the aggrieved party, and, in which two natives of the United States of North America sit as magistrates, and, it is invoked, to the gentlemen judges, as judges and gentlemen, an accused, who is a consecrated separatist, and has obeyed the noblest and most respectable impulse, which is patriotism. Appears before you, this gentleman accused before the judicial power created by the North American intervening nation, in serene expectation of the justice that must emanate from judges and gentlemen representatives of the nation that the accused marks as enemies of his homeland. We are before history and before posterity. The sentence that falls in this case will have a transcendent significance. It is about the clash between the principle of our own national determination and the expansionism of a foreign power that invades us. The penal sanction is necessary to maintain the peace of an organized society, when the individual, acting for antisocial motives, attacks and attacks those who with him are engaged in the conservation of that social unit to whose existence all are consecrated.

It is necessarily inapplicable to this state the case of Puerto Rico, in which the Puerto Rican society, with its atavisms, tradi-

tion, language, and its own Christian civilization struggles for its existence against an assimilation of the foreign that however estima- ble it may be, it is foreign, and that has always been enough to produce the most bloody clashes in history.

Not an aggressor is being judged who has been moved by material interests, not even by a matter of personal honor. The fiscal evidence confirms that it is an extraordinary motive: to demand a reparation in the field of gentlemen for a grievance that he believes perpetrated to the Puerto Rican dignity.

Nor is it a hallucinated person. Mr. Velázquez is a prestigious gentleman who occupies a position of responsibility as father of family, businessman and public man as will be clearly seen in the record.

Nor is the grievance in vain. It is of public domain that a few days before the date of the events, a magna national pilgrimage in atonement to the national flag for attempted attempt to convert it into a colonial flag was celebrated on the South Coast. It seemed to everyone a reply to that solemn act, the homage, immediately after, to the flag of the United States of North America celebrated in the Municipal theater of San Juan, act sponsored by Mr. del Toro. Even the non-nationalist press harshly censured that ceremony. It was considered an imposition that had to be disdained. (La Correspondencia and La Linterna, editions that formed part of the record). It resulted in a tarnished act, because not even the North Americans residents attended it. (La Corresponden- cia, id.).

Besides, Mr. del Toro confessed to having always sponsored acts of that nature, although he could not understand why they were repudiable by the majority of Puerto Ricans. (Decla- ration of Mr. del Toro).

It is also illustrative that Mr. del Toro believes his homeland is the United States of North America. (Declaration of Mr. del Toro). CONSIDERATIONS OF THE ERRORS ASSIGNED

1. Absence of Mens Rea. From the evidence is detached the absence of Mens Rea. To require a gentleman to offer repara- tion in the field of gentlemen does not constitute public crime. The declaration of Mr. del Toro clearly confirmed that that was all that it was about. He confesses to have been slightly touched, and, that although he, Mr. del Toro, assaulted Mr. Velázquez several times, he

did not answer and withdrew. There was no treachery, nor any of the circumstances that nimbus the commission of a crime. Mediated a card, with name, and address of Mr. Velázquez, which is what is customary in cases of honor, so that the aggrieved person knows where to address.

The most demanding judicial power, and, even if it were illegitimate, cannot evade the consideration of the social norms that prevail among gentlemen, in all circumstances, either to exonerate or either to attenuate the penalty.

It was to be expected within the norms that prevail among us, that Mr. del Toro would not allow that this matter would even be treated in the courts. We have heard his point of view when declaring, that he has done so, to comply with an order from a court, but, we cannot understand him in this case.

The legislation covers only the situations in which the indi- viduo wants to break the norms of the society in which he lives, but does not pretend to cover those norms because it would be absolutely inne- cessary.

We trust that the gentlemen magistrates will see this situa- tion with all the objectivity that excludes the possibility of Mens Rea.

1. The statute by which the accused, Mr. Velázquez, has to be judged, is taken from the almost identical statute of Texas. The jurisprudence of Texas establishes the requirements to fix the commission of this crime: We copy from the English Text:— “To constitute an aggravated assault on an officer, it must appear that the person assaulted was an officer in the discharge of his duties and that the assault was made as an interruption of his official duties.” Curlin v. State 209 S. W. 666.

“For an assault upon a person who is an officer to be aggravat- ed assault, within Penal Code 1895 art 601, which provides that when an assault is commited upon an officer in the lawful dis- charge of his duties etc. it must appear that the person assaulted was an officer in the actual discharge of his duties, and that such assault was made as an interruption of his duties. Jeannes v. State 132 S.W. 352, 60 Texas Cr. 440.

From the evidence it is detached that Mr. Velázquez did not go to deal with Mr. del Toro nothing concerning the charge of Mr. del Toro.

Mr. del Toro declares that he was resting, that that was the time of his “lunch”, what he had just done; that he was taking a few walks; that to treat matters unrelated to his charge, such as those of the Bicentennial of the Liberator of the United States, he received visits in his office. Mr. del Toro was not fulfilling any duty of his charge, nor could he be interrupted in the fulfillment of any duty.

The Prosecutor did not present a single official duty that Mr. del Toro was fulfilling at that moment.

It seems to us that the own jurisprudence of this court is definitive in excluding any possibility of aggravating circumstances.

1. The penalty of one year of reclusion in jail in a case like this is unusual. Unusual penalties are repudiated because with them goes the loss of confidence in the justice of the courts what provokes the need to do justice by oneself. It is the method most effective to restore violence on a large scale.

We have ransacked the jurisprudence, and we have not found a penalty of that magnitude in a case of this nature.

If the judges are to show themselves not already unjust but inhuman, they are inviting the commission of serious crimes, so that the accused can find if not justice, at least humanity in a jury, that reveals more sensitivity and respect for the feelings more expensive for every gentleman.

1. In the direct examination of the accused Mr. Velázquez, the defense asked him this question:

“Do you know what happened to Mr. del Toro for that propaganda at the University of Puerto Rico with the students?”

The Judge, sustained the objection of the prosecutor, and prohibited that the witness declare.

In the direct examination of the witness there was perfect right to ask him that question, because Mr. del Toro had declared that he considered his duty to sponsor acts like the one that provoked the incident causing this accusation, and, it was necessary so that one could understand the spirit of the accused, the reaction that a similar act had provoked Mr. del Toro in the first teaching center of the country. At least that fact, with all its amplitude, would have mitigated the rigor of the penalty. The accused was deprived of that right.

5., 6., and 7 The same reasons we can adduce to determine those errors of the lower court. What is more, the Prosecutor made those objec- tions without giving legal reason that sustained him, and, the Judge, declared them with place, in the same form. Even more the lower court showed prejudice against the accused when he said that he was not interested in that evidence. (p. 24 record).

The judges are not there to consider the evidence that they are interested in, but the evidence that gives light and allows to impart justice. If the lower court had learned how the press of the country, and non-nationalist press had opined censuring the act sponsored by Mr. del Toro, very different would have been his sentence. Serene expects this accused the justice of the gentlemen magistrates that constitute this court. San Juan de Puerto Rico, November 18, 1932.

Respectfully, PEDRO ALBIZU CAMPOS Attorney of the Accused.

THE PEOPLE OF PUERTO RICO vs. LUIS F. VELAZQUEZ, Accused. MOTION ON LACK OF JURISDICTION

The accused appears, through his undersigned attorney, and respectfully states: 1.- That the lower courts that have intervened in this case, that is, the Municipal Court of San Juan and the District Court of San Juan, and this Hon. Tribunal that is currently considering the appeal filed by the accused, lack jurisdiction in this case. The accused bases this allegation on the judgment rendered in the case of Estados Unidos vs. Iglesias, Puerto Rico Federal Reporter, volume 13 p. 282, which establishes that in crimes committed in this building where this Hon. Tribunal holds its sessions and where the accused allegedly committed the crime he is accused of, the jurisdiction of the United States Court for the District of Puerto Rico shall be exclusive. The accused formulates this motion after a thorough study of the case of Rivera vs. Lawton, 35 Federal Reporter, 2d series, page 823, which was supposed to be contrary to the principle set forth in the case of Estados Unidos vs. Iglesias, supra, but which is actually in perfect harmony with said judgment. THEREFORE, the accused requests the Hon. Tribunal to declare the judgment rendered in this case null and void due to lack of jurisdiction in the courts that have intervened in it.

San Juan, Puerto Rico, January 24, 1933.

Respectfully submitted, P. ALBIZU CAMPOS Attorney for the Accused

Archive of the Supreme Court of Puerto Rico.

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

OCTOBER SESSION, 1933 NUM: 2923

LUIS F. VELAZQUEZ, Accused — Appellant, VS. EL PUEBLO DE PUERTO RICO Plaintiff — Appellee

APPELLANT’S BRIEF

STATEMENT OF THE CASE

On June 20, 1932, a complaint was submitted in the Municipal Court for the Judicial District of San Juan, Puerto Rico, Second Section, by Lic. D. Masari, District Attorney for the aforesaid district, accusing the appellant of committing the crime of Aggravated Assault allegedly committed against the person of the Honorable Emilio del Toro, President of the Tribunal denominated Corte Suprema de Puerto Rico, while the aggrieved party was in the performance and fulfillment of his duties. (Rec. p. 2) The case was heard before the Judge of the aforesaid Municipal Court, without a jury, and the accused was sentenced to one year in prison plus costs.

This pleading, submitted in English by Albizu Campos to the Court of Appeals of Boston, belongs to the archive of Lcdo. Jorge Luis Landing. The translation into Spanish was carried out by the nationalist hero Oscar Collazo. It was reviewed, to adjust it to the legal terminology, by fellow Lcdo. Hiram Sánchez and Vanessa Rossy.

Upon appealing this sentence to the District Court for the District of San Juan, Puerto Rico, a new trial was held before the Judge of said Court, without a jury, the sentence being confirmed on June 30, 1932. (Rec. ps. 3-4) Therefore, the case was taken on appeal to the Tribunal denominated Corte Suprema de Puerto Rico. (Rec. p 4) Said Court, after holding due trial, confirmed the sentence imposed on the accused-appellant on December 14, 1933. (Rec. p. 32) From this judgment of the Corte Suprema, this appeal is raised before this Court, based on these: ERROR ASSIGNED

1. The Corte Suprema erred in not upholding the allegation of the accused that El Pueblo de Puerto Rico had no jurisdiction over the Santo Domingo Barracks, the place where the alleged assault and battery was carried out due to its erroneous interpretation of the following laws of the United States Congress: Organic Act of Puerto Rico, April 12, 1900, Section 33; Act of July 1, 1902, to authorize the President of the United States to preserve certain buildings and lands, Section 1st.

2. The Corte Suprema erred in its interpretation of the 8th. Section of the 1st. Article of the Constitution of the United States in its application to this case.

3. The Corte Suprema erred in upholding the decision of the Corte de Distrito de San Juan that there was criminal intent.

4. The Corte Suprema erred in upholding the ruling of the Corte de Distrito de San Juan, upon motion of the Prosecutor, without allowing the appellant in his direct testimony to answer the following question: “Do you know what happened to Mr. Del Toro with the students because of this propaganda at the Universidad de Puerto Rico?”

5. The Corte Suprema erred in upholding the ruling of the Corte de Distrito de San Juan, upon motion of the Prosecutor, in not allowing the appellant in his direct testimony, to answer the following ques- tion: “Do you know if this action, sponsored by Mr. Del Toro, was adversely criticized in the Press hostile to the nationalist cause?”

6. The Corte Suprema erred in upholding the ruling of the Corte de Distrito de San Juan, refusing the following evidence presented by the appellant: The article by Mr. M. Alfaro, entitled “The homage to the Flag in the Teatro Municipal”, published on June 17, 1932 in “La Correspondencia”, a newspaper that is not nationalist.

7. The Corte Suprema erred in upholding the ruling of the Corte de Distrito de San Juan, refusing the following evidence presented by the appellant: The Editorial of “La Linterna”, a weekly that is not nationalist, edition dated June 18, 1932.

8. The Corte Suprema erred in upholding the ruling of the Corte de Distrito de San Juan alleging that this was a case of assault and aggravated battery.

9. The Corte Suprema erred in upholding the ruling of the Corte de Distrito de San Juan alleging that the Prosecutor’s Office had proven the case of assault and aggravated battery beyond any reasonable doubt.

10. The Corte Suprema erred in upholding the ruling of the Corte de Distrito de San Juan alleging that the sentence imposed was not un- usual nor unduly severe.

San Juan, Puerto Rico, January 12, 1934.

(Rec. p. 33) Respectfully, Attorney for the Appellant

The appellant did not have the benefit of a jury trial because the alleged crime committed is classified as a misdemeanor and the laws prevailing in Puerto Rico at present deny the right to a jury trial in such cases. JURISDICTION The appellate jurisdiction of this Court to review decisions of the Corte Suprema de Puerto Rico is conferred by Paragraph 4th. of Subdivision (a) Section 225, Title 28 of the Judicial Code and Judicature, under which this Court may review final decisions.

“In the Corte Suprema de Puerto Rico, in any civil or criminal case, in which the Constitution or a Statute or Treaty of the United States or some authority in a subordinate position is involved.”

1. The Corte Suprema erred in upholding the ruling of the Corte de Distrito de San Juan, refusing the following evidence presented by the appellant: The article by Mr. M. Alfaro, entitled “The homage to the Flag in the Teatro Municipal”, published on June 17, 1932 in “La Correspondencia”, a newspaper that is not nationalist.

2. The Corte Suprema erred in upholding the ruling of the Corte de Distrito de San Juan, refusing the following evidence presented by the appellant: The Editorial of “La Linterna”, a weekly that is not nationalist, edition dated June 18, 1932.

3. The Corte Suprema erred in upholding the ruling of the Corte de Distrito de San Juan alleging that this was a case of assault and aggravated battery.

4. The Corte Suprema erred in upholding the ruling of the Corte de Distrito de San Juan alleging that the Prosecutor’s Office had proven the case of assault and aggravated battery beyond any reasonable doubt.

5. The Corte Suprema erred in upholding the ruling of the Corte de Distrito de San Juan alleging that the sentence imposed was not un- usual nor unduly severe.

San Juan, Puerto Rico, January 12, 1934.

Respectfully, Attorney for the Appellant (Rec. p. 33)

The appellant did not have the benefit of a jury trial because the alleged crime committed is classified as a misdemeanor and the laws prevailing in Puerto Rico at present deny the right to a jury trial in such cases. JURISDICTION The appellate jurisdiction of this Court to review decisions of the Corte Suprema de Puerto Rico is conferred by Paragraph 4th. of Subdivision (a) Section 225, Title 28 of the Judicial Code and Judicature, under which this Court may review final decisions.

“In the Corte Suprema de Puerto Rico, in any civil or criminal case, in which the Constitution or a Statute or Treaty of the United States or some authority in a subordinate position is involved.”

The decision whose review is requested here involves the inter- pretation of certain provisions of the Organic Act of Puerto Rico, of April 12, 1900, Section 33; the Act of Congress of the United States of July 1, 1902, to authorize the President of the United States to preserve certain buildings and lands, Section 1st; and Section 8th. of Article 1st. of the Constitution of the United States in its application to this case.

Matters arising under an Organic Act are federal issues reviewable by this Court. Gallardo v. Porto Rico Railway, Light and Power Co, 18 Fed. (2d.) 918, 921; Fed. (2d.) 545. Tax Cases, of Puerto Rico, 16 Fed. (2d.) 545. If it appears from the record that clearly and necessarily the federal issue must have been directly involved so that the Corte de Puerto Rico could not have rendered judgment without deciding the issue, that would be sufficient to confer jurisdiction on this Court. Powell v. Supervisor of Brunswick, Co. 150 U.S. 433. Even if some of these issues had not been adequately considered in the lower courts, this Court, in its discretion, may consider issues involving the denial of rights conferred by the Federal Constitution or by the Organic Act of Puerto Rico. Weems v. U.S. — 217 U.S. 349.

ERROR ASSIGNED First Assignment The Corte Suprema erred in not upholding the contention of the ap- pellant that El Pueblo de Puerto Rico had no jurisdiction over the Santo Domingo Barracks, the place where the alleged assault due to its erroneous interpretation of the follow- ing laws of the United States Congress: Organic Act of Puerto Rico of April 12, 1900, Section 33; Act of July 1, 1902, to authorize the President of the United States to preserve certain buildings and lands, 1st. Section. This issue was decided according to the contention of the appellant in the case of…

U.S. v. Iglesias — Puerto Rico, Fed. R. XIII, p. 282. Judge Odlin rendered the following opinion:

“The matter submitted to this Court at present for its determi- nation is of the utmost importance and the peculiar facts surrounding it make it absolutely one of first impression. The Federal Prosecutor and the Attorney for Juan G. Iglesias have submitted to the office of the Clerk of this Court a statement of facts agreed upon, containing fourteen paragraphs and is so carefully coordinated that I cannot but incorporate it as part of this opinion in the following manner: AGREED STATEMENT OF FACTS “It is hereby stipulated and agreed between Ira K. Wells, Federal Prosecutor, representing the plaintiff and Juan B. Soto, Attorney, representing Juan G. Iglesias, defendant, that for the purposes of consideration and determination of the matter of jurisdiction of the Federal Court in this case, the following facts, considered pertinent to such consideration, are hereby admit- ted as true and indisputable:

1. That the Santo Domingo Barracks, including the piece and parcel of land located on the Island of San Juan, in the City of San Juan, Puerto Rico and known as the Santo Domingo Barracks, adjacent to the Church of San José, are property of the United States of America.

2. That the aforementioned Santo Domingo Barracks and the lands on which they are located constitute a portion of the property ceded to the United States of America under Article 8 of the Treaty of Peace between the United States of America and the Kingdom of Spain signed in Paris on December 10, 1898 and promulgated on April 11, 1899.

3. That possession of said property was delivered by the duly accredited representatives of the Government of Spain to the military authorities on or about August 12, 1898, which took possession of it and has administered it as an instrumentality of the Federal Government.

4. That until the approval of the Act of July 1, 1902, all lands, buildings and other properties acquired from Spain remained under the control of the Federal Government, except to the extent that it granted temporary control to the Insular Government under and by virtue of S-13 of the Act of Congress approved on the 12th of April of 1900, known as the Foraker Act (31 Stat. at L. 77 comp. Stat. S 3760, 7 Fed. Stat. Anno 2d ed. p. 1266) which provided: “all property that had been acquired in Puerto Rico by the United States under cession from Spain in said treaty of peace in relation to public bridges, roadmen’s houses, aqueducts, roads, rivers not navigable and their courses, groundwater, mines, minerals underground in private lands, all property that for the time of the cession belonged to Spain under its current laws, port works of Puerto Rico, the port coasts, docks, piers, reclaimed lands (not including port areas or navigable waters) are hereby placed under the control of the government established by virtue of this Act to be administered for the benefit of El Pueblo de Puerto Rico; and the Legislative Assembly created by this law shall have the authority, subject to the limitations imposed on all its actions, to legislate with respect to all those waters as it deems prudent.
5. That on July 1, 1902, the Congress of the United States approved an act entitled “Act Authorizing The President to Preserve Public Lands and Buildings on the Island of Puerto Rico For Public Use and To Grant Other Public Lands and Buildings to the Government of Puerto Rico and For Other Purposes” S-1 of which reads as follows: “That the President is hereby authorized to make, within the year from the approval of this Act such preservation of public lands and buildings owned by the United States on the Island of Puerto Rico, for military, naval, lighthouse, naval hospital, postal, customs, federal court and other public purposes as it deems necessary and that all buildings and public lands, not including port areas, navigable rivers, bodies of water, and the submerged lands adjacent to them, owned by the United States in said Island and not reserved as such are hereby transferred to the Government of Puerto Rico to retain or dispose of them for the use and benefit of the people of said Island; stipulating that said transfe- rence is made under the express condition that the Government of Puerto Rico, by its own authority, relieve the United States of all interest or claim it has against or on the buildings and lands reserved by the President under the provisions of this act, and that it be further stipulated that nothing herein shall be interpreted as affecting any legal or equitable right

acquired by the Government of Puerto Rico or by any other party, under contract, lease or license made by the authorities of the United States prior to May 1, 1900” (32 Stat. at L. 731 chap. 1385, Comp. Stat. S 3761, 7 Fed. Stat. Anno Supp. p. 1281).

1. That in accordance with said Act of Congress approved on the 1st of July 1902, the President, by executive order dated June 30, 1903, reserved for military purposes certain described lands, with the buildings located there, located on the Island of Puerto Rico including, among others, the following: “All that plot or parcel of land located on the Island of San Juan, in the City of San Juan, Puerto Rico and known as the site of the Santo Domingo Barracks, adjacent to the church of San José.”
2. That after the Act of Congress of the 1st. of July 1902, was approved, the Legislature of Puerto Rico passed an Act approved on February 16, 1903 (Ses. Laws 1903, p. 110) entitled “Act to Authorize the Governor of Puerto Rico to transfer certain lands to the United States for naval, military and other public purposes”, SS 5 and 6, which hereinafter reads as follows: “Section 5.- That the consent to the United States to acquire, for naval, or military or other public purposes, by purchase or compulsory expro- forceful, any lands in the Island of Puerto Rico, and when were acquired in this way, and the United States has taken possession of them, all jurisdiction over such lands by “El Pueblo de Puerto Rico” shall cease and end ipso facto. Provided, however, that if subsequently the United States alienate any or all of the lands acquired in this way, El Pueblo de Puerto Rico shall again have jurisdiction over them. “Section 6.- That exclusive jurisdiction be and is hereby is hereby ceded to the United States over any and all lands that they may hereafter acquire in the Island of Puerto Rico by purchase or compulsory expropiation; over any and all lands and banks or margins thereof, including streets and other roads and public roads, transferred to the United States by the Governor of Puerto Rico by the provisions of this Act; and over any and all lands in which any interest, right or claim of “El Pueblo de Puerto Rico” may later be

waived in favor of the United States by the Governor of Puerto Rico, in accordance with this Act. Provided, however, that in and over any lands acquired by the United States, or transferred to them by the terms of this Act, of the Island of Culebra, El Pueblo de Puerto Rico shall retain concurrent jurisdiction with the United States over offenses and crimes committed within the limits of the lands so transferred; such jurisdiction, however, shall be exercised only when they are taken over by the naval officer, or other officer of the United States in charge of them”. (Compilation 1911, SS 1674, 1675).

1. Under the provisions of an Act of the Legislative Assembly of Puerto Rico of March 10, 1904, the attorney Juan Hernández López in the name and on behalf of the Most Reverend Bishop of the Diocese of Puerto Rico in the Supreme Court of Puerto Rico, claimed, among others, title to property over what was formerly known as the Convento de Santo Domingo, that being the same property herein described as the Santo Domingo Barracks and the Supreme Court, by decision dated December 15, 1906 (11 P.R.R. 466) ruled in favor of the Catholic Church as to certain properties, but declared without merit the complaint regarding the Convento de Santo Domingo and adjoining lands, which is the property herein described as the Santo Domingo Barracks.
2. As a result of the controversy over the title of the aforementioned properties involved in said lawsuit before the Supreme Court of Puerto Rico and in order to put an end to the controversy in relation to certain property claimed as its own by the Catholic Church of Puerto Rico and retained in part by the United States and in part by El Pueblo de Puerto Rico, an agreement was reached on August 12, 1908, by a commission composed of two persons appointed by the President of the United States, two persons representing the Catholic Church and two perso- nas representing El Pueblo de Puerto Rico, appointed by the Governor, with the intention of creating the bases for a transac- tion of all matters in dispute between the Catholic Church of Puerto Rico on the one hand and the United States and El Pueblo of Puerto Rico on the other, which provided, among other things, as follows: “The United States shall pay to the Catholic Church of Puerto Rico the sum of $120,000.00 Dollars as final settlement of all claim,

of any nature whatsoever, in relation to the properties claimed by the church, which are now in the possession of the United States, described and specified in the decision rendered by the Supreme Court of Puerto Rico in certain lawsuit no. 1, submitted by the Church against El Pueblo de Puerto Rico, in the Supreme Court of Puerto Rico, by which the Church cedes all rights and actions related to said properties, these becoming the exclusive property of the United States”.

10- By law approved on March 4, 1909 (35 Stat. at L. 1018, Cap. 299), the Congress of the United States approved an item for the purpose of giving effect on the part of the United States the basis of said transaction the portion of said law in relation to the matter reads as follows: “Payment to the Catholic Church in Puerto Rico. To give effect, on the part of the United States, to the basis of transac- tion in all those matters in dispute between the Catholic Church of Puerto Rico on the one hand and the United States and El Pueblo of Puerto Rico on the other, signed in San Juan, Puerto Rico, on August 12, 1908, by the commissioners of the United States, the Catholic Catholic Church of Puerto Rico and El Pueblo de Puerto Rico, respectively; the Secretary of the Treasury is hereby authorized to pay to the Bishop of Puerto Rico, as representative and trustee of the Catholic and Roman Church in that Island and for the exclusive benefit of the Catholic Roman Church of Puerto Rico, the sum of One Hundred Twenty Thousand Dollars ($120,000.00) as final settlement of all claim, of any nature whatsoever, relating to the properties of the Catholic and Roman Church in Puerto Rico, currently in possession of the United States, namely: The building known as the Santo Domingo Barracks and the lands belonging thereto and the site of the building formerly known as the Infantry Barracks both properties located in San Juan de Puerto Rico; provided that the Catholic Roman Church shall guarantee the title thereto and shall cede all rights and actions relating to said pro- perties and that said properties shall belong exclusively to to the United States; provided further, that upon receipt of this sum, the Catholic Roman Church shall waive all claims, of any nature whatsoever, against the United States, arising in Puerto Rico prior to the approval of this Act”.

1. Later, to wit, on May 17, 1909, the United States paid to the Catholic Church of Puerto Rico the sum of

$120,000.00 as final settlement of all claims for properties considered by the Catholic and Roman Church of Puerto Rico, as its own, then in the possession of the United States, among others: the buildings known as the Santo Domingo Barracks and the lands belonging to them and on that date an official record of sale by the Bishop of Puerto Rico was executed, transf- ferring to the United States all the rights of the Church of Puerto Rico over the Santo Domingo Barracks, also known as “El Convento de Santo Domingo” purchase of which was authorized by said Act of Congress of March 4, 1909.

1. On March 2, 1917, the Congress of the United States approved an act entitled, “Act to Provide a Civil Government for Puerto Rico and For Other Purposes”. (39 Stat. at L. 951, Chap. 145, Comp. Stat. SS 3803c, 3803cc Fed. Stat. Anno Sup. 1918, p. 612, SS 7 and 8), which reads as follows:

Section 7. All property that had been acquired in Puerto Rico by the United States, by virtue of the cession made by Spain in the treaty of peace celebrated on December 10, 1898, in public bridges, roadmen’s houses, water power, roads, non-navigable streams and their beds, groundwater, mines or minerals under the surface of private lands; all property which at the time of the cession belonged, by virtue of the laws of Spain then in force, to the different boards of port works of Puerto Rico; all the shores of the ports, docks, piers, reclaimed lands and all public lands and buildings not heretofore reserved by the United States for public purposes, are hereby placed under the dominion of the Government of Puerto Rico, to be administered for the benefit of El Pueblo de Puerto Rico and the Legislative Assembly of Puerto Rico shall have authority, subject to the limitations imposed on all its laws, to legislate with respect to all such matters as it deems convenient; Provided, that the President may from time to time, at his discretion, transfer to El Pueblo de Puerto Rico those lands, buildings or interests in lands or other properties belonging at present to the United States and within the territorial limits of Puerto Rico, which in its judgment are no longer needed for purposes of the United States. And he may from time to time accept from Puerto Rico, by legislative concession, any lands, buildings or

other interests or properties that may be necessary to the United States for public purposes.

Section 8. The surface of the ports and the courses and extensio- nes of navigable waters and the lands submerged under them within and around the Island of Puerto Rico and the islands and adjacent waters which now belong to the United States and have not been reser- vados by the United States for public purposes, are hereby placed under the dominion of the Government of Puerto Rico, to be administered in the same manner and subject to the same limitations as the properties enumerated in the preceding article; Provided, that all laws of the United States for the protection and improvement of the navigable navigable waters of the United States and for the preservation of the interests of navigation and commerce, shall be applicable to said island and waters and its adjacent islands and waters, except in those in which the same are locally inapplicable; Provided further, that nothing contained in this Act shall be construed in any way affect or impair in any way the terms or conditions of any authorizations, permits or other facul- faculties legally granted until now by the Secretary of War or other authorized official or agent of the United United States in or in relation to said waters and submerged lands in and around said island and its adjacent islands, or until now exercised legally in or in relation to the same waters and lands; and Provided further, that the Act of Congress approved on June 11, 1906, and entitled “Act granting granting power to the Secretary of War, under certain restrictions, to authorize the construction, extension and maintenance of piers, piers and other works on lands under surfaces of ports in rivers and navigable waters, within or around Puerto Rico and its adjacent islands”, and all other laws and parts of laws that are in contradiction with this article, are hereby repealed.

1. That possession of the same having been effected by the military authorities of the United States, all the buildings of the Santo Domingo Barracks and its contiguous lands have been occupied by the United States for military purposes, except that the second floor of said building, now occupied by the Insular Courts, was for May 17, 1923 and for many years

prior to that date, occupied by the Supreme Court of Puerto Rico, for courtrooms, chambers, offices of court officers and assistants, under the permission and tolerance of the military authorities.

1. That Francisco Palacios Salazar, for whose crime the defendant is accused, was shot while ascending the stairs leading to the second floor of the Santo Domingo Barracks on or around May 17, 1923, dying in the hallway at the end of said stairs where he had fallen. That the person who fired the shots that resulted in the death of Francisco Palacios Salazar was on the stairs leading to the second floor of the Santo Domingo Barracks when firing the fatal shots. (Signed) “Ira K. Wells, Federal Prosecutor — Juan B. Soto, Attorney-Defendant”.

There is only one fact of importance that was omitted, only one. The defendant Iglesias was tried for the death of a man named Palacios in the Insular District Court of San Juan before he was tried before this Court for the same murder. As of the date of the indictment before this Court, I was aware of the indictment before the Insular Court, but I was of the opinion that the Insular Court had no jurisdiction; therefore, I allowed the Prosecutor Federal to present the case before a Grand Jury of the Federal Court. It then happened that the Federal District Attorney was backed in his claim that Iglesias should be tried only in a Federal Court by an opinion rendered by the Solicitor General of the United States and also by an opinion rendered by the learned Judge General of the Army of the United States; the attorney for the defendant refused to argue against the jurisdiction of this Court. “Since, however, Iglesias had previously been tried in the local Insular Court and that an opinion had been rendered by the Solicitor General of Puerto Rico that the trial should have been held in that Court and not in a Federal Court and as I wished to obtain all the possible information on the question of jurisdiction, an invitation was extended to the Procu- Prosecutor General of Puerto Rico to argue the matter as amicus curiae. During the absence of the Honorable H.P. Coats in the United States and while the Honorable Miguel Muñoz Morales was acting as Interim Solicitor General of Puerto Rico, the argument on this question of jurisdiction was made. “It is a matter of utmost importance to the defendant that he be tried before the proper Court. It is also clearly the duty of

the Federal Court not to assume jurisdiction over this case unless the facts, as they have been accepted, place the case absolutely within the limitations of the Federal Court in Puerto Rico. Mr. Muñoz Morales has presented a capable and ingenious argument in defending his allegation that Iglesias must be tried only by an Insular Court and that the present indictment, brought by a Federal Grand Jury, must be dismissed.”

“It would be very pleasing to the one who subscribes to this opinion if he could discern clearly to concur with the ideas so ingeniously expressed by Mr. Muñoz Morales and suspend the case from the calendar of this Court. It is not a pleasant task to preside over the trial of any man accused of murder. I completely agree with the views of Mr. Muñoz Morales that there is no presumption in favor of the jurisdiction of this Court; moreover in case of doubt this Court, must resolve it against the presumed jurisdiction and not in favor of retaining it. Nothing have I read in a long time that expressed my views in relation to this matter so explicitly as the language used by the Honorable David J. Brewer, who was Associate Justice of the Supreme Court of the United States at the time of his death and who, presiding as Circuit Judge in the year 1885, issued an important opinion in the case of Kansas v. Bradley, published in 26 Fed. 289, in the final paragraph of his opinion, on page 292, states the following: “It must be borne in mind that when there is doubt as to their jurisdiction, the Federal Courts must return the case. They should not be greedy but rather detached in regard to jurisdiction. The overburdened list of litigation of this Court should not be crowded with cases brought unless their jurisdiction is clear and the mandate of the law makes it imperative”.

“Of course, that case was a civil litigation and involved a matter of transfer and return, but the principle stated by Judge Brewer should be followed more faithfully in a case where a man’s life is involved than in one where only his property is involved. Therefore, it is my duty to dismiss this charge and return the defendant Iglesias to the Insular Court unless after careful study and determination, I am convinced that only the Federal Court has jurisdiction to try him.”

“The question of jurisdiction or the absence thereof in this Court depends entirely on the proper interpretation of the word exclusive found in the statutes of the United States Congress and which defines federal jurisdiction. In other words, if on May 17, 1923, at the time of the alleged homi- cide, the Government of the United States had exclusive control of the building in San Juan known as the Santo Domingo Barracks, Iglesias can be properly tried in this Court; if on the indicated date the Government of the United States did not have control of the building known as the Santo Domingo Barracks, Iglesias should be tried in an Insular Court. It has been admitted by all interested parties that Palacios was shot while he was on the stairs leading to the second floor of said building. It is also admitted that said build- ing was delivered to the officers of the United States Army when Spain withdrew from Puerto Rico at the end of the year 1898. The ground floor of this building has been constantly used by the army of the United States as a police station and the upper floor has been occupied by the Supreme Court of Puerto Rico and by the District Courts S1 and S2 of Puerto Rico -the latter is a one-Judge Court with Jury by permission granted for that purpose by the military authorities because they did not need the upper floor of the building and the Insular Courts were allowed to remain there, without payment of rent, until their own courtroom was built. This permanent courtroom has not yet been built.

“Of course, it would be absurd to say that the Insular Courts are trespassers on someone else’s property and have no business on the second floor of the Santo Domingo Barracks, but it would be equally ridiculous to say that they were there as a contracting party. There was no lease agreement, no rent has ever been paid. It seems to me that it is exactly similar to the case of the person who makes a legal visit to the Commander in Chief of the Army at the White House in San Juan. The visitor goes to the White House on a legitimate errand, but while he is there, he commits an act that in common law is a crime, for example, theft. Mr. Muñoz Morales argues very ingeniously that if the title to the stolen property had been in the name of the Government of the United States, the thief, although a visitor and not a trespasser, could have been tried in a Federal Court; but if the property

stolen belonged to a private individual, then the thief could be tried before an Insular Court.”

“Judge Rose tells us in his recent work on Federal Jurisdiction and Procedures, that if two men get into a fight in the post office building in the city of Baltimore, Maryland, the offenders would be punished by the Federal District Court and by no one else. Mr. Muñoz Morales argues that if he enters the Post Office building in San Juan and finds that a thief has stolen his mail from the mailbox, the offender may be properly tried before this Court, but if the thief steals from him directly from his pockets in that building, he may be properly tried in an Insular Court. In short, it is about distinguishing, with respect to crimes committed on federal soil in the Island of Puerto Rico, between crimes that are offenses against the United States exclusively and crimes that are offenses under common law. Then the discussion continues and an attempt is made to impose on this Court the conclusion that, in the action for which Iglesias is accused, no official of the Government of the United States was involved, but the action itself was against all law; in other words, words, there was no distinctly federal crime and the trial should be held before an Insular Court, even though the building that was the scene of the crime is the property of the Government of the United States only.”

“I wish I could agree with that opinion as far as my desire not to try this unpleasant case is concerned but of course, where a judge, after carefully considering all the decisions that weigh on the case, finds that his mind is free from any doubt about the jurisdiction of his Court, concludes that the only appropriate order he can issue is to retain jurisdiction.”

“Only a few more observations are necessary. A very interesting portion of the argument of the Honorable Muñoz Mora- les rests on the claim once made by the Roman Catholic Church to the Santo Domingo Barracks. It seems that sometime after the treaty between the United States and Spain was signed, a lawsuit was filed on behalf of the Church to recover the building, on the theory that the title on the date of the change of sovereignty did not belong to the Spanish Kingdom, but to the Church. The case never went to trial. The proper representatives of the

United States considered it prudent to settle the lawsuit. The Congress of the United States approved a certain amount of money, the Church Catholic Roman received the money and the deeds of transfer of release were executed. I cannot see in what way this can affect the present matter. Assuming that the true title was held by the Roman Catholic Church, said title, without without a doubt, passed to the United States through the deed of release; but if the Church did not possess a genuine title, but only an unjust claim, then the execution of the deed of release from the Church for the benefit of the United States could not have taken part in the increase or creation of rights for the People of Puerto Rico.”

“In another part of the very ingenious argument, the Honorable Mr. Muñoz Morales made statements to the effect that the Law of the Legislature of Puerto Rico that authorizes a deed for the benefit of the United States did not operate to transfer any title because the Legislature of Puerto Rico has no power to approve such a Law. Even if it is true that the Legislature had no power to approve said law-a point on which I do not think it necessary to comment- such step on the part of the Legislature of Puerto Rico could not possibly possibly operate in any way to the detriment of the jurisdiction of this Court, which rests entirely on the Laws of the Congress of United States.”

“In addition to the case referred to by Judge Rose, mentioned earlier by me, in which two men get into a fight in the hallway of the post office building in Baltimore and their trial is held before a Federal Court, there is also an unreported case of a extremely ruthless thief who took money belong- longing to the American Red Cross, during the World War, from a booth placed in the hallway of the Post Office building in the City of New York that for purposes of public collection had been authorized to the officers of the American Red Cross to place tempo- rarily in that place. This thief was tried before the Court Federal. It seems that it was never thought of trying him before a Court of State. It should also be noted that the land on which the post office building in the City of New York is located are property of the City of New York and that the building was con- built there by contract signed between the Government of the United States and the City of New York, a contract that stipulates that the

Government of the United States may use the lot for fifty years. The fifty-year period had expired before of the robbery; however, the Federal Court maintained its jurisdiction because the building has not yet been demolished even though the United States is under the obligation to do so and to restore possession of the lot to the Municipal Government. Despite those peculiar facts facts, it was held that the Federal Government had exclusive jurisdiction over the property.”

“I will have to admit freely that I felt very impressed by the abstruse and ingenious oral argument submitted by the Honorable Muñoz Morales and it was necessary for me to study it extensively in order to expose its falsehood. The best way to do this is by demonstrating the logical results that would be obtained from the adoption of his theory, which is that this Court has jurisdiction over those properly federal crimes if have been committed on federal property, but does not have jurisdiction in those crimes that are governed by common law. Let’s see how this works:

“A servant employed in the Barracks of Colonel Ross, Commanding Officer of the United States Army in San Juan, steals a wristwatch and an alarm clock. The investigation indicates that the wristwatch is the personal property of a member of the family of Colonel Ross and that the alarm clock belongs to the Government of the United States. This thief would have had to be tried twice according to the theory of the Honorable Muñoz Morales. He would have been tried in this Court for the theft of the alarm clock and in the proper Insular Court for the theft of the wristwatch.”

“Once again, let us suppose that at the Artillery Barracks in the City of San Juan a large shipment of harnesses is received and and that upon opening the boxes the army officers come to the conclusion conclusion that the harnesses do not conform to specifications, so which the manufacturers in the United States are informed that the harnesses will be retained here pending their instructions. The manufacturers maintain that the harnesses conform to the specifications and present a lawsuit before the Court of Claims in Washington, to recover the sale price. While the trial is pending some climbers enter the Artillery Barracks and take away the harnesses. Before these criminals can be tried, of

in accordance with the theory of the Honorable Muñoz Morales, both the Insular Court and the Federal Court would be obliged to wait until obtain the decision of the Court of Claims of Washington, since it would have been impossible to determine whether the right of ownership of the harnesses fell to the Federal Government or to the manufacturers. In the meantime, the Statute of Limitations probably come into play and unless both Courts try the climbers, they would go unpunished.

“Again, let us take the case of property found on a military reservation, kept there awaiting the claimant and whose owner is unknown. Under these circumstances, some thieves enter the place and rob. As the owner is unknown and the United States could seize the property by forfeiture if the claimant never appeared, how would it be possible to determine with certainty the jurisdiction properly recognizable for such a crime?

“I am in complete agreement with the views of the Honorable Muñoz Morales that in case of doubt a Court Federal should decline its jurisdiction; and it would be extremely pleasant for me if I could see my way clear to dismiss the charge by the Grand Jury of this Court and hand over the accused Iglesias to the Prosecutor of the Insular District Court. But the more I have studied this case, the more convinced I have become that only this Court has jurisdiction and, therefore, I feel obliged to order Iglesias to appear for trial to answer the indictment against him by the Grand Jury of this Court, despite the fact that he was previously charged by a Grand Jury of the Insular District Court. It is extremely important for Iglesias that he be tried by a Court that has legal jurisdiction over him, so that in case of acquittal, said acquittal is final and conclusive. His own defense attorney has not objected to that the trial be held in this Court. I have carefully considered and examined the claims presented by the representatives of the Insular Government as amici curiae but, as has been expre- expressed before, I cannot agree with those points of view.”

“Iglesias will be tried before this Court; the trial will take place during the month of May 1924 on the date decided by the Federal Federal Prosecutor and by Iglesias’ Defense Attorney. In case they do not could not agree, the Court will set the date.”

As an additional consideration, we must indicate that juris- diction is territorial, that is, based on the possession of the land. The Federal Government has allowed the Supreme Court to use part of the second floor, while the rest of that floor and all of the first floor have been used continuously for military military purposes, such as Garrison Barracks. The most exclusive federal jurisdiction is maintained over territory dedicated to military purposes, even when said terri- territory has been ceded to the Federal Government for such purposes by a state. (Section 8, Article 1 of the Constitution of the United States). This is so by necessity, since the military military establishment, its equipment or its Armed Forces could be used against some state or states by the Federal Government in case of emergency. If the theory of the Supreme Court were to be in effect, the Municipal Court of San Juan would be competent to intervene in a crime committed by a member of the Armed Forces of United States on the first floor; or against such person or by or against a Judge or any other official of the Supreme Court while while crossing or standing in the lobby of the first floor. The Supreme Court did not decide that the People of Puerto Rico had joint jurisdiction with the Government of the United States States over the first floor. What kind of jurisdiction is this that ceases when when touching the ground that is under the exclusive jurisdiction of another sovereign? The historical reason for allowing the Supreme Court, as territorial hearing, the use of the Santo Domingo Barracks appears in the wise opinion of Judge Odlin, Supra. Said Court is the successor to the old Territorial Audience under the sovereignty Spanish and the Armed Forces of the United States offered it the best protection. It is needless to say that the current Ameri- American regime is seen with deep hostility by the great majority of the Puerto Rican Nation and the agencies of the Government of the United States whether judicial or administrative are considered adverse to the dignity and interests of the nation. As a precau- precaution elementary United States, in its exercise of imperial power in this country, took sufficient military precautions to

protect this territorial audience renamed Court Supreme of Puerto Rico, committed in its duties to be a faithful judicial interpreter of fundamental imperial policy.

Puerto Rican patriots hold the nationalistic view that the Treaty of Paris and all subsequent actions of the United United States in Puerto Rico are null and void in as far as Puerto Rico is concerned, because our nation, on the date of the signing of said treaty, enjoyed personality international and Spain could not negotiate any treaty that compromised Puerto Rico, except if it was negotiated by plenipotentiaries of Puerto Rico and ratified by the parliament of Puerto Rico. (Charter of Autonomy of Puerto Rico). The recognition of international personality by the Mother Country is valid for all sovereigns of the family of nations. (Victoria, Suárez, Calvo and all authorities on international law agree on this). After the promulgation of the Charter of Autonomy, the relations between Spain and Puerto Rico were regulated by means of treaties, from sovereign to sovereign. (Charter of Autonomy of Puerto Rico). This compendious explanation has been made to explain the bitter feeling in this country against the American regime, which forced the United States to take as many repressive military measures repressive measures as the one at hand.

Accepting the reasoning (the validity of the Treaty of Paris and the subsequent actions of the United States in Puerto Rico, for all purposes), the theory of the Supreme Court of Puerto Rico that the People of Puerto Rico obtained jurisdiction over the second floor of the Santo Domingo Barracks because the Government of the United States tolerated this use.

The “People of Puerto Rico” is a legal entity created by fíat of the Congress of the United States and as such has only those those powers that are expressly conferred upon it by laws of the Congress, which has happened in the case of every territory under the American flag. This entity should not be confused with the Puerto Rican nation, whose sovereign rights are inalienable.

Within the present regime, the Supreme Court of Puerto Rico may be established by law of the Congress of the United States, anywhere under the American flag, aboard a merchant or war ship, in the Bay of San Juan or on the high seas, in the Philippines, Guam, Boston, or Washington; however, “The People People of Puerto Rico” would not acquire jurisdiction over such ships or places.

In reality, this Court is the Court of Appeals of Puerto Rico and the Supreme Court of the United States is the Supreme Court of Puerto Rico and therefore “The People of Puerto Rico” have no jurisdiction over the places where these courts are located. The problem of jurisdiction is between two Courts of the United States, one called the Supreme Court of Puerto Rico and the other the Federal Court of the United States for the District of Puerto Rico. (U.S. v. Iglesias, supra). The most absolute military regime establishes the precise jurisdiction of its agencies, be they judicial or administrative. If it were found that the jurisdiction in question is exclusively “Federal”, the defendant has the right to a jury trial; if the jurisdiction is joint, he may be deprived of that right if the indictment was first made in the name of the “People of Puerto Rico”, in which case he is placed at the mercy of judges who have received political appointments and who cannot feel humanly free to act in a case in which the fundamental policy of the regime is involved as in the present case, as will be demonstrated later. (Post). SECOND ERROR ASSIGNED The Supreme Court erred in its interpretation of Section 8 of the 1st Article of the Constitution of the United States as to its application to this case. Said section refers to a territorial cession of the provinces to the United States and there is no possible analogy with the present case which involves, if anything, a tolerance of United United States in the use of a second floor of a building by a Territorial Court. We have not been able to find any precedent in the jurispru- dence applicable to the case before this Court.

THIRD ERROR ASSIGNED The Supreme Court erred in upholding the ruling of the Court of District of San Juan that there was criminal intent. The case concerns the challenge of one gentleman to another in the chivalrous tradition of the Hispanic race. There is no element of surprise; no weapon of any kind; no undue violence. A gentle- man hands over his card with his name, address, occupation and telephone number and goes in search of his adversary when he is free to act, in the place where his office, away from his home so as not to disturb the peace of the latter. The purpose of the procedure is to give the offended party the opportunity to choose the weapon. (Cabrignana, Code of Honor). The motive is not based on any material interest, nor even on a personal matter of honor; it is based on the highest highest sense of duty, patriotism. The defendant walked unarmed armed among the armed sentinels who could have shot him in the act. Perhaps the crime of challenging to a duel could have been technically sustained to a duel, but that of serious assault is a crime repul- repulsive to the sense of a highly civilized society such as ours ours, raised in Christian chivalry. The defendant is a gentleman well known in the community. (Rec. p. 14). Mr. del Toro instead of facing this matter in the traditional way in which gentlemen respond to such situa- situations, has testified against a patriot, a chivalrous adversary, to place him in the clutches of judges appointed by the imperial power that subjugates this country by armed force. No criminal intent can be found, unless free men, lovers of the independence of their country, compare the fine feelings of a brave patriot with the passions of a vulgar criminal. No matter of honor is brought before the Courts of Puerto Rico by gentlemen. In the case of a challenge to a duel in the due form, if the parties are arrested, none will testify against the other. against the other. This is the soul of our social structure; the indisputable law law that does not need legislatures for its consecration.

FOURTH ERROR ASSIGNED The Supreme Court erred in upholding the ruling of the Court of District of San Juan, corresponding to the motion of the Prosecutor, to prevent the defendant, in direct testimony, from answering the following following question: “Do you know what happened to Mr. del Toro with the students when taking this propaganda to the university?” Mr. del Toro testified from the witness stand that, despite the fact that he was Chief Justice of the Supreme Court, he believed he was fulfilling his duty to do political propaganda in favor of the present American regime. (Rec. p. 9-10). Men dedicated to such propaganda are paid officials salaried and represent a small minority in this country. His attitude attitude, naturally, is considered as very offensive. As far as Mr. del Toro personally is concerned, his attitude has earned him the most severe public repudiation. The question question that was asked of him during the cross-examination would have brought up that fact, necessary for this Court to form a judgment based on on true justice. The question was logically pertinent to the due com- understanding of the circumstances surrounding this extraordinary case. The Court of first instance, however, believed it was subject to the rules of evidence applicable to jury trials. This abortion of proceedings is due to the judicial influence American. The highly scientific Spanish procedure was abandoned and replaced by the American procedure in jury trials jury trials; judges make no distinction between trials by right and jury trials. The result is a serious blow to to the due administration of justice, as judges refuse voluntarily to hear logically relevant evidence, based on on technical grounds of the law of evidence created for the jury trials and therefore, issuing decisions without knowing the circumstances surrounding the case. This is, certainly, a blind administration of justice. FIFTH ERROR ASSIGNED The Supreme Court erred in upholding the ruling of the Court of District of San Juan, upon motion of the Prosecutor, to prevent the defendant, in direct testimony, from answering the following question: “Do you know if this action sponsored by Mr. del Toro was

adversely criticized by the press enemy of the nationalistic cause?” The Court of first instance refused to hear anything of the matter based on the same grounds already indicated in the Fourth Error Assigned. The answer to such a question would have made evident the general repudiation of the public towards that propaganda and the most severe severe criticism against the participation of the judges in the annexationist propaganda. Mr. del Toro insisted during his direct testimony that that he considers the sponsorship of such propaganda as part of his official duties. (Rec. p. 10). The minority that honestly believes in statehood for Puerto Rico detests such propaganda, as they aspire to join the American Federation as bona fide Puerto Ricans, with their Spanish language, the religion of their ancestors, their customs traditional and their cult to national heroes. SIXTH ERROR ASSIGNED The Supreme Court erred in upholding the ruling of the Court of District of San Juan refusing to accept the following evidence presented by the defendant: “The homage to the Flag in the Municipal Theater”, by Mr. Alfaro, published on June 17, 1932 in “La Correspon- dencia” a non-nationalist newspaper.” (Rec. p. 18). The article offers the point of view of those who have been defending Americanism in Puerto Rico and clearly shows the circumstances surrounding the case. However, the Court of first instance refused to give it course because it was inadmissible under the rules of evidence and because it did not constitute a defense. (Rec. p. 17). SEVENTH ERROR ASSIGNED The Supreme Court erred in upholding the ruling of the Court of District of San Juan, refusing the following evidence presented by the defendant: The Editorial of “La Linterna” a non-nationalist weekly, in its edition dated June 18, 1932. (Rec. p. 21).

The Court of first instance refused to read it for the reasons already indicated under the Sixth Error Assigned. (Supra). EIGHTH ERROR ASSIGNED The Supreme Court erred in upholding the ruling of the Court of District of San Juan, which held that the case was one of aggravated assault.

The local statute establishing the crime of assault and aggravated assault is an exact copy of the same statute of the state of Texas.

As we had no precedents in Puerto Rico, we have had to resort to those statutes of Texas. In Curlin v. State 209 S. W. 666, the Court expressed: “To constitute an aggravated assault, it must appear that the person attacked was an officer in the performance of his duties and that the assault was carried out with the intention of interrupting such duties.”

And in Jeannes v. State, 132 S.W. 352, 60 Texas, Cr. 440, the Court expressed: “In order for an assault against a person who is an officer constitute aggravated assault, as provided in the Penal Code of 1895, Article 601, the assault must have been committed against an officer who is fulfilling the legal duties of his etc… It must appear that the person assaulted was an officer in the actual performance of his duties and that said assault was carried out as an interruption of his duties.”

From the evidence it is clearly seen that the defendant did not go to visit Mr. Toro for any matter affecting the official duties of the latter.

Mr. del Toro himself testified that he was resting, that he had just had lunch as usual, that he had walked after lunch; that he could be seen in his office for other matters not related to his official duties. (Rec. p. 6-12).

The Prosecutor could not show a single official function in which Mr. del Toro was engaged at the time of the alleged aggression.

NINTH ERROR ASSIGNED The Supreme Court erred in upholding the ruling of the Court of District of San Juan that the Prosecutor had proven beyond all

reasonable doubt a case of assault and aggravated assault. We are convinced that this Court will find, upon reading the printed evidence and the law related to the matter, that there is no case of assault and aggravated assault. TENTH ERROR ASSIGNED The Supreme Court erred in upholding the ruling of the Court of District of San Juan affirming that the penalty was not unusual nor unduly severe. The defendant was deprived of a jury trial in the Court Federal, first by reading the indictment in the Municipal Court of San Juan in the name of the People of Puerto Rico. The Prosecutor knew very well that the People of Puerto Rico had no jurisdiction over the place of the facts. In U.S. v. Iglesias that matter had already been decided. (Supra). The Attorney General of Puerto Rico intervened in said case. However, the indictment was brought in the name of the People of Puerto Rico because deprived of a jury trial under the local statutes, a guilty verdict was a sure thing. Then, relegated to that so costly and distant justice, the defendant would have have had to suffer this humiliation, as the Prosecutor expected. It is certain that no jury would have found the accused guilty. A sentence of one year plus costs, imposed by judges judges who are supposed to be freer from prejudices and fears than juries, seems repulsive. The judges owe their positions to political appointments and are at the mercy of the will of the Governor of Puerto Rico, represen- representative in Puerto Rico of the power of the United States. Without a doubt doubt, they did not feel free to act in this case. The decision of the lower Courts must be reversed.

Respectfully submitted, PEDRO ALBIZU CAMPOS Attorney for the Accused-Appellant In San Juan, Puerto Rico, on January 11, 1935.