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244 U.S.

CLARKE, J., dissenting.

Valdez. That afterwards, but two months before the trial of Valdez, he made affidavit that he and one Mateo Arcilla went to Valdez' house during the early evening of the day of the murder, that Valdez there gave them a shotgun in the village street, and that then the two, without Valdez, went and concealed themselyes on the lot of Yuson and when he came home "I [Gatmaitan) discharged both barrels of the shotgun at him at the same time and then ran to Valdez' house and delivered the shotgun to lim."

Next he gave testimony, such as we shall see, on the trial of Valdez and eight days later made oath in prison that the local constables had tortured him for three weeks, not allowing him to sleep day or night, and thereby had forced him to confess that he and Valdez had committed the murder, when the truth was he did not know who killed Yuson.

Nine days after this, again under oath, he denied all torture and persecution and says that his testimony on the trial of Valdez was true.

And finally the Supreme Court says that on his own trial he repudiated his testimony in the trial of Valdez, denied all knowledge of the crime and attempted to establish an alibi for himself.

Such is the witness who tells the following amazing story on which Valdez is sentenced to death:

I can neither read nor write. I never talked with Valdez but three times in my life. The first time I was looking for sugar cane seed and he said to me that “he wished to win my friendship,”—nothing else and we parted. The second time we met in Valdez' seed field and he offered me a business, which, according to his own statement, was an easy one. I asked him what kind of a business it was and he said to me that I should kill Eusebio Yuson and that he would pay me 900 pesos" ($450). I told him I could not please him because I was very busy with my work

CLARKE, J., dissenting.

244 U.S.

and no one could relieve me in said work. And he told me to say nothing about it to any one and thus we parted. The third time I met Valdez he came to my hut in my sugar cane fields about five o'clock of a Sunday evening (the evening of the murder) and he invited me to return to town and I rode with him in his calesa (carriage) to his home. During this drive of about an hour he said nothing to me. When we arrived at his house he left me in the street and went into the house. When the bell struck the time of evening prayer as he did not come down from the house I thought that he was praying and when he did come down from the house he said nothing to me but handed me a shotgun.

Q. And what did you do when you received the gun?
A. He still invited me to go to Loasan.
Q. What did he do?
A. He followed me.
Q. Where did you go?
A. To the house of Lieutenant Eusebio Yuson."

He says that on the way to Yuson's house he and Valdez stopped at a store and one Figueroa came and told them that Yuson was already there and they then approached Yuson's house and located themselves in the fence near the staircase (outside the house leading to the second story) and when Yuson arrived Valdez ordered the witness to shoot.

Q. And what did you do?
A. I tried to shoot but the gun would not go off.
Q. And then?

A. He approached me and said 'Son of a Whore, he was able to go up and you won't shoot' and he showed me how to shoot and right at that moment the gun went off.”

On cross-examination he says he pulled the two triggers and that the gun would not go off and that then Valdez showed him how to shoot. “I was holding the shotgun this way (indicating) and he was showing me how to shoot,

244 U.S.

CLARKE, J., dissenting:

saying, 'This way,' and without more ado the shot came out, the shot gun fell and I was frightened and ran away from the place and I know nothing more.' He says he had never handled fire arms before, and did not know how to shoot a gun and that he did not tell Valdez that he did not know how to shoot. The shot thus fired was the one fatal to Yuson.

I shall not go into the testimony of the corroborating witnesses for the prosecution, Mateo Arcilla, who is described by the Supreme Court as “a convicted wife murderer, sentenced to life imprisonment for that crime since he appeared as a witness at the trial of Valdez,” and Figueroa who with Gatmaitan and Arcilla the trial judge says pleaded guilty before a justice of the peace to murdering Yuson, without implicating Valdez.

The only motive suggested on the part of Valdez for murdering Yuson is a difference between him or his mother (it is not clear which) and Yuson about some boundary and water rights, which had been amicably settled four years before the murder, and an indefinite business rivalry, which is only remotely alluded to by the widow of the deceased.

A careful reading of this entire record convinces me, and the opinions of the lower courts throughout proceed upon the assumption, that the conviction of Valdez could not be thought of except this story of Gatmaitan which I have thus detailed from the record is believed to be true. Under the authority of the decisions of this court in Wiborg v. United States, 163 U. S. 632, 658; Clyatt v. United States, 197 U. S. 207, and in Diaz v. United States, 223 U. S. 454; I have thus examined this record for the purpose of determining whether there is any substantial evidence to be found in it to warrant the conviction of the defendant, and my conclusion is that there is no such evidence, because after making full allowance for differences of habit, of life and of character of the persons in

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244 U.S.

volved and of the witnesses, I cannot conceive it possible that a man such as Valdez is described to be, even if he desired the death of an enemy or a rival (as to which there is no evidence) would bribe to shoot him an entire stranger of the most ignorant type obtainable, who had never used fire arms; should promise him money to commit the murder; should deliberately hand him, in the early evening, in a village street, the gun with which to shoot the victim; and then should go with the murderer to the scene and participate in the assassination by pulling the trigger which fired the fatal shot.

Comment would be superfluous. The mere narration of the story makes it impossible for me to consent to making it the legal basis for depriving a man of his life, for the testimony of Gatmaitan is not merely mistaken testimony due to faulty recollection or statement, but one of his series of stories is necessarily, consciously and corruptly false, and therefore the other should not be relied upon, especially not in a capital case. It is not uncommon for ignorant and corrupt men to falsely charge others with doing what they imagine that they themselves, in their narrow minds and experience, would have done under the circumstances of a given case, and the surest check, often the only check, on such perjury, is to recognize the impossibility that men of larger instruction and resources and experience could have been guilty of such conduct. It is, of course, possible that Valdez committed or inspired this crime but it is impossible to believe that he would have committed it in the crude, certain to be detected, manner described by Gatmaitan.

This conclusion is arrived at putting wholly aside the defense of the accused, in which he took the witness stand and, so far as the record shows, sustained himself through a searching cross-examination, in a categorical denial of the, to me, utterly incredible stories of the prosecuting witnesses.

244 U. S.

CLARKE, J., dissenting.

But even if the evidence in the case were deemed by me credible I still should conclude that the judgment should be reversed for the purely legal reason which I shall now state.

When the state closed its evidence in rebuttal the. prosecuting attorney requested the court (there was no jury) to view the scene of the murder. To this counsel for the accused assented but with the request that "no testimony be taken because it produced great confusion when trying to examine witnesses at the place of the . occurrence.” To this request the prosecuting attorney replied: "What Mr. Southworth says would be very advisable, but I believe it would be very advisable also not to dispense with the task in which the court may exercise its discretion, so that when said court arrives there it may ask of unknown persons where the deceased fell, where the wad was found, where Gatmaitan was, and where Mateo Arcilla was."

Then this follows:

“The Court: Tie court has no objection to making that inspection after the defense has produced its rebuttal evidence, not showing in the record the result of said inspection.

Mr. Southworth: We have no rebuttal evidence.
The Court: So that we may close the case?
Mr. Chicote: Yes, sir.

The Court: Good, tomorrow you may present your arguments. The session of the court is closed."

The record further shows that the judge visited the scene of the murder, that Valdez was confined in prison several miles away at the time of the visit and that he was neither required nor invited to be present at the view.

The visit to the scene by the judge without the presence of the accused is assigned as one of the reasons why a new trial should be granted, on the ground that such action violated § 5 of the Act of Congress of July 1st, 1902,

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