56 ANDREW J. SHIPMAN MEMORIAL 



by any official, and that (Article 465) he may give his declara- 

 tions or testimony as many times as he likes ; although Mr. 

 Archer does admit that, according to Article 458, the accused 

 may testify "without being required to take an oath," thus re- 

 lieving a prisoner from the charge of perjury if his testimony 

 be false. This last privilege Mr. Archer curiously turns into 

 an excuse for Ferrer's obvious falsehood as to having been at 

 the Casa del Pueblo and having there met with Ardid. The 

 sumario may be extended (Article 548) for further testimony, 

 the ratification of witnesses, and the summons of further wit- 

 nesses may be requested by the accused in cases of "common 

 offenses," or for the "further taking of proof which he thinks 

 would protect his rights" (Article 548). Mr. Archer speaks 

 of the "common offenses," but kindly omits the latter provi- 

 sions. To say that the prosecution was bound to summon wit- 

 nesses for the defense, where the accused and his counsel 

 failed to call them, or to request them to be called, when testi- 

 mony was being taken, is somewhat of a novelty. 



The Auditor pointed this out in his dictamen or opinion 

 rendered in the case ("Process," p. 59) : 



If, as the defense asserts, the affidavits of Soledad Villa- 

 franca and the other associates of the accused, now residing at 

 Teruel, could have exculpated Ferrer Guardia, they had time 

 to make such affidavits in the twenty-eight days during which 

 the sumario lasted, and besides the accused might have sum- 

 moned them in his investigations ; but they would have been 

 required to submit to examination in the same manner in 

 which all such persons were interrogated who had been cited 

 in them. But not having requested any such testimony until 

 after the case had been taken up in plenario, it was not pos- 

 sible to accede to his petition on account of the prohibition 

 of paragraph 5 of Article 552 of our Code. 



In other words, the defense did not answer orally or in 

 writing to the accusations and proofs adduced, did not offer 

 witnesses in his behalf during twenty-eight days, because, as 

 the Auditor points out, they would have been examined, per- 

 haps, so as to incriminate themselves, him, or others. But they 

 waited until the other witnesses were dismissed or dispersed 

 and then made an offer themselves to testify — it does not ap- 

 pear that the accused ever called for them orally or in writing. 

 Mr. Archer gives us to understand that the court-martial 

 should have halted its procedure, which had got past the point 



