TUCSON'S FIRST MURDER TRIAL

  The record of the Tucson murder trial of 1813-1814 is a storehouse of information concerning the social standards and legal practices of the Spanish colony in this desert. These are among the least known years of Spanish occupation.

The military scene is clarified as well. The trial record assures us that even during the golden years of Apache peace, a regular offensive was kept up against renegade bands. The trial officials themselves testified that frequent Apache campaigns slowed down the judicial process, which lasted the better part of a year and a half. Reading between the lines one concludes that Lieutenant Ignacio Sotelo with a Tubac detachment was on his way to Tucson to take part in an "imminent Apache campaign" when he captured the escaped prisoner at La Casita. The elusive succession of commanders at the Tucson presidio is clarified by signatures at different sessions of the trial. These same signatures point up the hegemony of the military with the commandants designating themselves as civil judges as well.

There is a notable contrast between the swift and summary justice, supposedly characteristic of the Anglo frontier, and Spanish preoccupation with legal refinements. One notes also the awkwardness of frontier officials in dealing with these technicalities.

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Due to the length and complexity of the record, this translation ends after the defense attorney's appeal. A full year of backtracking and reviews by higher courts was to follow. The attorney of the commandancy general in Durango sent the whole case back to Tucson because of a defect in the ecclesiastical extradition and because an oath of office had not been administered to the defense attorney.

After a year of legal proceedings, the attorney of the sala del crimen of Guadalajara stepped in with the assurance of Shakespeare's Portia in The Merchant of Venice. He revealed the ineptness not only of the Tucson court but of the commandancy general as well. Murderers had been deprived of the right of ecclesiastical sanctuary since 1787.

Since the Tucson presidial archives have disappeared, the only known copy of the trial record is one made for the ecclesiastical archives of the Diocese of Sonora, where it is found today. Not included in this transcript are the sentence and the record of its execution. From the last and highest legal opinion, however, it can be deduced that Francisco Xavier Díaz was garroted at Tucson toward the end of 1814 - a release he would probably have welcomed much earlier.


ECCLESIASTICAL EXTRADITION

On this twenty-ninth day of August of the year 1 8 1 3, I, Manuel de León, lieutenant of cavalry, acting military commander of Tucson, and civil judge of the same, formally begin the judicial process against Francisco Xavier Díaz.

On July sixth of this year, María Ignacia Castelo was found murdered in the village of San Xavier del Bac. She was the legal wife of Francisco Xavier Díaz, a cowboy in the employ of San Xavier Mission. According to report, it was Díaz himself who killed her. Antonio Narbona, commander of Fronteras and acting commander of Tucson at the time, apprehended the guilty person and consigned him to the guardhouse of the Tucson presidio.

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On July twelfth the prisoner was conducted under guard to a place outside the walls of this presidio. In full sight of the guard, he broke his leg irons and escaped. Because of the mockery Díaz had made of the guard, Narbona ordered a full investigation of the corporal of the guard and his sentries. Every effort was made to recapture the prisoner, especially since before his escape no judicial process had begun because of our involvement with counteroffensives against the Apache.

This morning Díaz was discovered within the presidio walls, where he had taken ecclesiastical sanctuary in our presidio chapel. At first we surrounded the chapel with the hope of keeping him there until the holy days following our patronal feast of San Agustin [August 28] had passed, since judicial proceedings are ordinarily forbidden during these days. Then it occurred to me that I would need the men on guard for the imminent Apache campaign. Therefore I decided to make an exception and appeal immediately to the presidial chaplain to draw up a document of ecclesiastical extradition. I have no intention of defiling these holy days of our patronal feast, but the situation is urgent. We must prevent a second escape. The situation has already disquieted the other prisoners in our guardhouse.

As I was writing these lines, Lieutenant Ignacio Sotelo, commander of Tubac, arrived here. He tells me the following story. Late yesterday he left Tubac for Tucson with a detachment of his company. Near the place called La Casita they sighted a man adjusting the saddle of his horse some distance from the road. As they went to investigate, the man mounted his horse and rode off. Suspecting that he might be an Apache, they gave chase. Overtaking him they found him to be none other than Fran-

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cisco Xavier Díaz. They captured him and, tying his hands behind his back, sent him on ahead in the keeping of a soldier who rode behind him, controlling the rope. During the night the prisoner somehow freed himself and dashed on to Tucson to take ecclesiastical sanctuary in our presidio chapel.

I hereby formally petition our presidial chaplain to extradite this guilty person from the ecclesiastical jurisdiction to our civil court this very day.

MANUEL DE LEON

Before the witnesses Ventura López and Pedro Guevara.

At four o'clock in the afternoon of this same day, the Reverend Father Fray Pedro de Arriquibar, military chaplain of this post and pastor of its civilian settlers, escorted Francisco Xavier Díaz, the guilty man, out of the presidio chapel and, once outside the church grounds, handed him over to a sergeant and picket of soldiers who were under orders to take him prisoner. At the same time the reverend father presented the guilty person with a document attesting to the inviolability of his ecclesiastical asylum and assuring him of safe conduct to a civil court. The prisoner was then taken to one of the cells of our guardhouse where he was confined and, as further precaution, shackled with leg irons.

MANUEL DE LEON

Before the witnesses Ventura López and Pedro Guevara.

PRELIMINARIES OF THE TRIAL

On this eighteenth day of September of the year 1813, I, Manuel de León, lieutenant of cavalry, acting military commander of Tucson, and civil judge of the same, begin

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the formal trial of Francisco Xavier Díaz by drawing up the following questionnaire to be presented to the guilty individual:

Where were you born?

Where do you live now? Who were your parents? What is your name?

Are you a Christian, Apostolic, Roman Catholic? What is your age, occupation, state, and caste?

How many times have you been in jail, why, in what jails, and have you ever broken out?

Do you know why you are in jail now?

Did you know María Ignacia Castelo, where she was born, with whom she was married, and how she died?

Do you know who killed her, at what hour of what day, with what motive, and with what weapons?

How did you plot to escape from our guardhouse, how did you free yourself from the leg irons, and did anyone help you to do so?

When you escaped from the guard detachment outside the walls of this presidio, was this prearranged with the sentries or with the corporal of the guard?

Who supplied you with horses, provisions, and arms on the occasion of your first escape?

When the Tubac detachment recaptured you, did the soldier conducting you to Tucson cooperate in your second escape?

MANUEL DE LEON

Before the witnesses Ventura López and Pedro Guevara.

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FIRST DEPOSITION OF DIAZ

On this twenty-first day of September of the year 1813, in the guardhouse of the royal presidio of San Agustin del Tucsón, Francisco Xavier Díaz swore under oath to answer the questionnaire and testified as follows:

I was born at the mining settlement of Santiago de los Caballeros in the jurisdiction of Sinaloa and was raised at Mocorito in the same jurisdiction. For the last four years I have resided in the jurisdiction of this Tucson presidio. Marcelino Díaz and María Barbara Iturrios are the names of my father and mother. My name is Francisco Xavier Díaz. I am a Christian, Apostolic, Roman Catholic by religion, a Spaniard by caste, a widower by state, and a cowboy by occupation. I am over twenty-four years old.

I was imprisoned for twenty-three days in the Santa Cruz presidio for abducting a woman from there. I cannot say that I broke out of jail on that occasion, since the sentry went to sleep and I simply walked away.

I know that my imprisonment this time is for the crime of killing my wife. Yes, I knew María Ignacio Castelo, was married to her by law, and know that she is dead. This I know because I myself killed her around noon one day early this July. I cannot remember the exact date. The reason I killed her was because of her infidelity. About a year ago she had relations with a Pima, named Juan, from the Tucson pueblito.

Early in the morning of the day of her death, I was sitting outside our house in the San Xavier village drinking saguaro with my friends when this Juan passed by. I looked back toward the house and caught my wife making signals to him. Since I was scheduled to leave San Xavier that morning to round up some mission horses grazing at La Cienega de los Pimas, I took her signals to

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mean that Juan should return when the coast was clear. Then I left with the other cowboys to round up the horses.

As I was nearing the mission on my way back, my horse grew overtired and I lost the horses I was driving. So I dismounted, let my horse go, and climbed part way up a low hill near the village to see if the other cowboys were able to recover my horses. It was from there that I saw my wife let Juan into our house. She then came out to pick up a sleeping-mat that was outside and went back into the house, locking the door with a piece of rawhide. I climbed further up the hill to get a better view of our house, but Juan did not come out. All I know is that when I was finally able to reach home, Juan was no longer there.

When I entered the house I immediately demanded to know what that Pima had been doing there. My wife denied that he had been there. I became enraged and struck at her with my hand. She fended off the blow with her left arm. Then I caught a tress of her hair with my left hand, gouging my thumb into her throat, and dealt her a blow across the face with my right hand. As she fell to the floor, I gave her a kick in the stomach and she immediately went into a death agony. This brought me to my senses and, seized with remorse, I started to pick her up. She died in my arms. Then I left her there and fled the village, intending to take sanctuary here in the presidio chapel. But they caught me on the road and brought me here to the guardhouse.

On the night before my first escape I made an unsuccessful attempt to break out of the guardhouse and reach the sanctuary of the chapel, though no one knew of my attempt or failure. The next day when they took me outside the presidio walls I was able to break the chain of my leg irons by using a sharp edge of the shackles them-

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selves. No one helped me with this nor provided me with any kind of instrument to do so. The corporal and sentries knew nothing of my plan. I escaped on a horse that happened to be tied nearby. No one helped me in this escape by providing me with transportation, provisions, or arms, since no one even knew that I intended to escape.

As to my second escape, it was much the same way. I received help from no one. The Tubac soldier who was conducting me to Tucson dozed as we neared the ranch of San Xavier. The rope fell from his hands, and as his horse kept stepping on it the knots binding my hands began to work loose. By moving my arms about I was able to free myself completely.

Díaz was asked the names of the two witnesses who were drinking saguaro with him outside his house early in the morning of the day of the murder. They were Venancio, majordomo at the mission, and Eusebio, Pima alcalde of the San Xavier village.

After this testimony the entire record was read back to the witness, and he reaffirmed its truth and content. Since he does not know how to write, he marked a cross on the record.

MANUEL DE LEON

Before the witnesses Ventura López and Pedro Guevara.

DEPOSITIONS OF WITNESSES

On the twenty-third day of September of the year 1813, I, Manuel de León, lieutenant of cavalry, acting military commander of Tucson, and civil judge of the same, administered the oath to Venancio Salvatierra at this royal presidio of San Agustin at Tucson and recorded the following testimony:

My name is Venancio Salvatierra. I am the mayordomo of San Xavier Mission. I bless myself with the Sign

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Thumbnail of Mission Indian Vaquero & Link to Full Image [17 Kb]
ILLUSTRATION: MISSION INDIAN VAQUERO

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of the Cross in testimony of the truth of what I am about to say. Yes, I do know Juan, a Pima of the Tucson pueblito, and I saw him in the San Xavier village on the morning of the murder. I did not see him near the house of the deceased, nor did I see him enter that house. I neither knew nor heard it said that there were ever any illicit relations between Juan and the deceased. Though he was my companion in our work of tending the livestock of San Xavier Mission, Francisco Xavier Díaz never mentioned to me that he was even suspicious of his wife and Juan. Nor was there ever any evidence that María Ignacia Castelo was unfaithful at any time or showed any sign of even thinking about being unfaithful.

Yes, it was common knowledge that Díaz beat his wife regularly. That is the reason I did not even bother going over to his house when the women who found her told me that Díaz had done it again. I did not know that she was dead. It is also well known that Díaz has a violent temper, is impulsive and proud, and is usually looking for a fight.

I went to Tucson to bring the padre out for the funeral the next day and it was only then that I saw the body of the deceased. There was a bruise on the side of her face where Díaz had struck her with his hand. There were fingernail marks about her nose and throat which he had inflicted when constricting her throat.

This is all that I know. For the record, I am over forty years old, was born at Aquituni of mixed Spanish and Indian blood, am married, and to attest to the truth of my statement am marking this record with a cross, since I do not know how to write.

MANUEL DE LEON

Before the witnesses Ventura López and Pedro Guevara.

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On this same day, I, Manuel de León, lieutenant of cavalry, acting military commander of Tucson, and civil judge of the same, received the testimony of the Pima alcalde of the San Xavier village, Eusebio, at this royal presidio of San Agustin del Tucsón. Since Eusebio does not speak Spanish, I am omitting the oath and am appointing my official court witness, Pedro Guevara, as interpreter. The good faith of Eusebio is evident and his testimony is as follows:

I was drinking saguaro with Díaz early in the morning of the day of the murder. This I know because I supplied the saguaro. I even stayed to have one more drink after Díaz left, but at no time did I see Juan around his house or even in the village on that day. Neither as an official of the San Xavier village nor otherwise, neither on this occasion nor on another, did I ever have reason to suspect that the deceased would be unfaithful to her husband. I did not know that Díaz ever beat his wife on that day or any other. Afterwards, others told me about the murder. This is all I know.

When the interpreter repeated and explained what is here in the record, Eusebio said that it was true.

MANUEL DE LEON

Before the witnesses Ventura López and Pedro Guevara.

On the same day and at the same place, I, Manuel de León, lieutenant of cavalry, acting military commander of Tucson, and civil judge of the same, received the testimony of Juan whom Díaz has named as the secret lover of his deceased wife:

My name is Juan Francisco Pacheco. I am a member of the Pima nation but am civilized and speak the Spanish language. I understand the oath of this court and take it

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now by making the Sign of the Cross. I know Francisco Xavier Díaz and I knew his wife, Ignacia. It has been explained to me that whatever my relations with Ignacia, I can tell the truth without fear of prosecution or punishment.

I was never a close associate of Díaz or his wife. The only time I was at their house was last St. Peter's Day [June 29], some days before the murder. The game of el gallo26 was being played at San Xavier that day. I was taking part in the game and became very thirsty. I went to their house to ask for some water. Díaz was present and his wife gave me the water. I have never set foot in their house before or after.

I was in the San Xavier village on the day of the murder. My father had sent me out to my sister's place to borrow a water gourd to take on an Apache campaign. I went directly to my sister's house at San Xavier and returned immediately to our house here in the Tucson pueblito. I know nothing of leaning on the fence of Díaz' house or any other house, receiving signals from women,27 or least of all entering into anyone else's house.

In the afternoon, after I had returned to the pueblito, I heard that Díaz had murdered his wife, and in the padre's house they were saying that he had killed her because she was flirting with some Indian and Díaz had seen it all from a nearby hill. If there ever was such an Indian, it was not myself, as the whole village will testify.

For the record, I am twenty years old, an Indian by caste, and a bachelor.

As the witness did not know how to write, he marked a cross on the record to attest to the truth of his testimony.

MANUEL DE LEON

Before the witnesses Ventura López and Pedro Guevara.

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On this twenty-fourth day of September of the year 1813, I, Juan María Baldenegro, commissary of justice at San Xavier del Bac, give the following sworn testimony:

On the sixth day of July of this year it was reported to me that María Ignacia Castelo, resident of this village and married by law to Francisco Xavier Díaz, a cowboy of this mission, lay dying. When I arrived at the house, she seemed already dead, but to preclude any doubt I sent for the priest to confess her. Soon all agreed that she was dead and I returned to the house to examine the body to determine the cause of this sudden death, since there is no one here licensed in medicine or surgery. There was a massive bruise on her right temple that would have required a heavy blow by a clenched fist. The area was black and blue all the way through to the socket of the right eye and no open-handed slap could cause that. The area of her throat covering her windpipe was badly bruised with the places where fingernails had dug in clearly marked, indicating that she had been strangled. There were scratches around her mouth and the fingermarks of the hand that had covered her mouth were still visible in her flesh. All of this convinced me that her husband had done this. I can think of no reasonable motive for this murder, since as constable I have made the rounds of this village night and day as long as this woman has lived here and she has always given evidence of the utmost integrity.

I have given this testimony in this village of San Francisco Xavier del Bac and, since I do not know how to write, swear to it by marking the record with a cross in place of a signature.

SUMMARY BY THE PROSECUTING ATTORNEY

On this twelfth day of November of the year 1813, 8 in the royal presidio of San Agustin del Tucsón, I, Manuel

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Ignacio de Arvizu, lieutenant colonel of cavalry, acting military commander of Tucson, and civil judge of the same, appointed Tomás Ortiz, civilian settler of Tucson, as prosecuting attorney in the case of Francisco Xavier Díaz. His presentation of the case in writing is as follows.

MANUEL IGNACIO DE ARVIZU

Before the witnesses Ventura López and Pedro Guevara.

Tucson.
November 16, 1813.

I have reviewed the two depositions of the guilty party, in which he attempts to mitigate an act of coldblooded murder with the plea of jealousy. He also implies that it was not his intent to take the life of his wife, but only to teach her a lesson. This implication, he would have us believe, is borne out by his not using lethal weapons but only his hands in the act. A bear or a mountain lion does not have to protrude its claws to kill a defenseless lamb or rabbit, since it knows that with one blow of its paw it can kill even stronger animals that have the power to resist.

The constable at San Xavier proves in his testimony the fatal intent and effect of Díaz' attack. The blow to the head was aimed at the vital artery that lies unprotected beneath the temple and it is well known that its damage can cause instant death. The marks on the throat and mouth of the deceased indicate clearly that Díaz was trying to choke off her life's breath just in case any life might be left after the death-dealing blow. AS though all this were

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not enough, he aimed a kick at the vital organs of her body. In summary all three actions were calculated to end her life: the first directed to the artery giving life to the brain, the second to the main passageway of life activity between the head and the body, and the third to the vital organs which account for the body's power of motion.

The jealousy of Díaz would seem to have little foundation in fact. If he in fact did see his wife admit a lover to their house and fasten the door, that would have been the time to confront her with the evidence. If his anger is as uncontrollable as he says, how could he calmly attend to the minor matter of helping the mission majordomo round up the horses?

After his escape from the Tucson presidio on the twelfth of July, Díaz had more than enough time to escape to the safety of his homeland in Sinaloa. Yet he was next seen on the twenty-eighth of August returning to seek sanctuary in the Tucson presidio chapel. This gives us clear insight into the state of his conscience before his Creator and Supreme Judge who was demanding the exoneration of María Ignacia Castelo. Despite overwhelming evidence by witnesses to her innocence, Díaz still cannot bring himself to pay this long overdue debt to his wife.

As to the effect of ecclesiastical sanctuary in reducing the severity of his sentence, I leave that to those more skilled in the law than myself. However, as to whether Díaz was guilty of intentionally killing his wife, the evidence leaves no room for doubt.

TOMAS ORTIZ

SUMMARY BY THE DEFENSE ATTORNEY

On this twenty-fifth day of November of the year 1813, in the royal presidio of San Agustin del Tucsón, I, Manuel Ignacio de Arvizu, lieutenant colonel of cavalry,

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acting military commander of Tucson, and civil judge of the same, appointed Alejo García, civilian settler of Tubac, as defense attorney in the case of Francisco Xavier Díaz. His presentation of the case in writing is as follows.

MANUEL IGNACIO DE ARVIZU

Before the witnesses Ventura López and Pedro Guevara.

Tucson.
November 26, 1813.

I have reviewed the records of this trial to date. In every deposition Díaz openly and without hesitation admits to the act of killing his wife. With the same candor and directness he denies that he intended to kill her. The prosecution insists that "there is no room for doubt" that this was intentional murder. It must be noted that the prosecution carefully omits some facts of the case and the facts adduced are not conclusive evidence of intentional murder.

The immediate remorse of Díaz, omitted by the prosecuting attorney, introduces a substantial doubt as to whether this was indeed an intentional and cold-blooded murder. Since the death of his wife was not his intent, Díaz immediately did everything in his power to help her when it appeared that she might die.

The parallel of brute animal life, which the prosecution does adduce, also gives us many examples of vengeance for infidelity. If this instinct is strong in innocent lambs and simple doves, how much stronger it has to be

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in a reasoning man. In man, to instinct is added the power of will, queen of all human faculties, which conquers even the power of reason in carrying out a human act.

The prosecution correctly points out the time lapse between the awakening of Díaz' suspicion while he was still on the hill and the confrontation with his wife in their home. This delay did not aggravate the guilt, as the prosecution would have us conclude, but reveals the laudable effort of the offended party to control himself. If Díaz had really premeditated a plan for murder, he would have waited much longer and killed his wife in an isolated place where blame would have immediately been laid to the Apaches. Not a day goes by that someone does not die at their hands in the isolated areas away from the presidio.

As to the innocence of his wife the evidence is once again not conclusive. Her suspected lover was indeed in the village that morning. The fact that witnesses saw nothing amiss might only mean that they had no reason to notice, whereas Díaz with suspicions backed up for over a year had reason to observe with more care.

Despite the hardships of imprisonment and death by execution staring him in the face, Díaz does not cease to grieve for the spot on his honor that he claims his wife's infidelity has placed there. At the same time he is the first to admit that to wipe off that spot he chose the vilest rag he could find, which has left his own image more tarnished than ever. It was for this reason that he sought the sanctuary of a sacred place, knowing full well that he was handing himself over to authority by doing so. Poor Díaz is like the ermine in flight from its hunters. Falling into the slime of the swamp, it allows itself to be drawn out easily by its captors in the hope that they will clean its beautiful coat.

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Thus did Díaz himself upon the mercy of the church in the hope that the authority that condemns him will follow the lead of divine mercy.

ALEJO GARCIA28

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Desert Documentary by Kieran McCarty - Chapter 18
Tucson, Arizona: Arizona Historical Society, 1976.

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