Wednesday, March 30, 2011
Page 7
PERSPECTIVES (Column)
Sutherland Serves as DA at Time When the Legal System Is Primitive, Safeguards Lacking
By ROGER M. GRACE
142nd in a Series
THOMAS W. SUTHERLAND, district attorney for Los Angeles County, had done what was right in supporting an April 23, 1851, bail application by three men charged in the District Court with a double-murder. Art. I, §7 of the state Constitution provided:
“All persons shall be bailable by sufficient sureties; unless for capital offences, when the proof is evident or the presumption great.”
The offense was a capital one, but the evidence was frail.
Nonetheless, release of the men was disfavored overwhelmingly by the Anglo citizenry of the City of Los Angeles which was convinced that defendants Francisco Lugo Sr. and Francisco Lugo Jr., native Californians, and Mariano Elisalde, from Sonora, Mexico, were guilty.
During two days of hand-wringing tension on April 25 and 26, described in the last column, lynching of the three was a prospect…as was them being gunned down by the “Red” Irving Gang which contended that the father of the “Lugo Boys” had promised to pay them $10,000 to break the suspects out of jail, then reneged. At the hearing, the judge, the attorneys, the sheriff, the clerk, and the outlaws in the spectators’ section had come armed. Violence might well have erupted had it not been for the tranquilizing presence of the cavalry which had fortuitously shown up that morning, and whose maneuvers before and after the hearing were choreographered by the defendants’ lawyer, Joseph Lancaster Brent.
Sutherland was DA of the First District, serving both San Diego and Los Angeles counties. Based on his acquiescence in the bail motion, voters in Los Angeles might well have evinced their displeasure with him had his name been on ballots here in the September election.
However, legislation enacted April 29, 1851, mandated a separate DA for each county, and if Sutherland had run, it would no doubt have been in San Diego County where he and his wife and child resided. As it turned out, however, he didn’t enter the DA’s race, having gone off to San Francisco.
Zooming out from the events of April 25 and 26, today’s column takes a look at what happened before and after those two historic days. What is seen is a legal system that mimicked that of the eastern United States in form, but was raw and rough in the execution. The following doesn’t have much to do with Sutherland, the current focus of this series on past DAs, but rounds out the last account.
The episode started with the theft by Ute Indians of horses belonging to the Lugo Boys’ father, Jose Maria Lugo. The incident is reported in a Feb. 4, 1851, letter from Lewis Granger—who would become district attorney of Los Angeles County later in the year—to Abel Stearns, a state senator. That letter, the original of which is at the Huntington Library, advises:
“The Utahs have been in the [San Bernardino] valley within a week past, and drove off all of Jose Marie Lugos[’] Caballada [herd], amounting to 75 horses. Fifteen men (paisanos [in context, Californios] and Sonorans) started in pursuit, came upon the Utahs 100 miles from the Cahone [Cajon] pass, attacked them, but were repulsed with the loss of one man, a Sonoran, who fell at the first fire, pierced with five balls. Had it not been for the darkness of the night, the party in pursuit would have been all killed, as the Utahs were 50 strong, armed with rifles and revolvers. They were on guard and under arms, being no doubt apprized of the approach of the party in pursuit.”
The fray, whether it occurred in the morning or at night, took place on or about Jan. 27.
When it was over, the posse returned home, through the Cajon Pass, between the San Bernardino and San Gabriel mountains. Soon after that, dead bodies of two men and their cart and mules were discovered in the pass by soldiers. At a coroner’s inquest, Jose Maria Lugo, who had led the party that chased the Indians, as well as others in the posse, acknowledged that both coming and going, they had seen the two men. They disclaimed knowledge as to the circumstances of their deaths.
The coroner’s jury proclaimed that the deaths were caused “by criminal and violent means” and it identified seven members of the posse. An inquiry commenced in the courtroom of Justice of the Peace Jonathan R. Scott. A statute provided that when an allegation was “laid before a Magistrate of a public offence, triable within the county, he must examine, on oath, the informant or prosecutor, and any witnesses he may produce,” preparatory to possible issuance of an arrest warrant,
There was much testimony, but little shown by it. Then came what was either a break-through or a set-up. It’s described in a 1978 book by Roy Elmer Whitehead, “Lugo, a Chronicle of Early California”:
One member of the Lugo group who had been with them while they were pursuing the Indians was Ysidio Higuera, a Sonoran who had been arrested and put in the county jail while the investigation was going on. He was accused of stealing a horse together with its expensive harness. The jailer at the time was George W. Robinson, and the defending attorney was Scott, the Justice of the Peace. On March 10 Robinson stated that Higuera had something more to say about the murder case. A deposition, dated and signed by Higuera on March 10, 1851, was then taken at the jail by one of the prosecuting attorneys; this is what Higuera testified:
He had been a member of the Lugo group who had pursued the Utes into the Mojave Desert, and on their return to the south side of Cajon Pass….Jose Maria Lugo took some of the party to his ranch, but four of the group including himself [that is, Higuera] remained all night near the Pass. The other three were the two sons of Jose Maria Lugo, Francisco Lugo Senior called Chico, and Francisco Lugo Junior called Menito, and Marino Elisalde. Chico was the ringleader of the four, and asked Higuera to obtain a weapon from his home. The Lugo boys believed that they had been intentionally given false directions by the two men in camp, which had led to the ambush. The four returned to the camp of the Irishman and the Indian in the morning, Chico shot McSwiggen in the head, and they killed Sam and returned home.
This new evidence changed the complexion of the case. The judge issued a warrant for the sheriff to arrest the two Lugo brothers and Elisalde and put them in jail (calabozo) located on a hill west of town overlooking the courthouse. When they arrived, they found their accuser already there and all four were put in irons.
The sole evidence at that time, and to this date, against the Lugo Brothers and Elisade was the uncorroborated statement of a jailhouse informant.
In my last column, I indicated that Higuera was a “convicted” horse thief. Actually, he was an accused horse thief, who had everything to gain by cooperating with authorities. In a slim book by Brent on the Lugo case (coupled with his account of a Civil War battle) is a recitation that Higuera—who signed the confession but was illiterate—“was never brought to trial” for any offense.
But why would authorities want to frame the sons of a beloved ranch owner, one of the wealthiest men in the state?
Brent had a theory, one sounding in facts and reason. Robinson, the jailer, was more than a tad biased against the Lugos. He was, in fact, suing Jose Maria Lugo and Francisco Lugo Jr., and had been the complaining witness against them in a recent criminal action. Robinson not only kept the Lugo defendants behind bars but in shackles, 24 hours a day, and denied them visitors, except Brent.
The genesis of this was that Robinson’s wife had been taken into the Lugo hacienda and performed chores there; Robinson came one day to fetch her, and manhandled her; Jose Lugo and Chico Lugo subdued him with force, the latter apparently drawing a sword; and Robinson brought charges.
Hand-written District Court minutes, maintained at the Seaver Center for Western Studies, show that on Oct. 18, 1850, when William C. Ferrell was DA, the Lugos were arraigned, pursuant to a grand jury indictment, for “assault with a deadly weapon with intent to commit great bodily harm upon the person of Robinson.”
Now Sutherland bobs back into the picture. He prosecuted the Lugos before a jury, and obtained a verdict of guilty. The minutes of Feb. 15, 1851, reflect the sentence: the defendants were “each to pay a fine of two dollars and fifty cents” and “to pay the costs of prosecution.” The fine, in terms of modern dollars, was only about $72.50.
It was less than a month later that Robinson, whose civil action against Jose and Menito Lugo was still pending, obtained Higuera’s purported confession implicating members of the Lugo family. Scott, Higuera’s lawyer, acting in his capacity as magistrate, issued a warrant for the arrest of the Lugo Boys and Elisalde, and the proceeding already in progress before him continued.
The prosecutor was not Sutherland, but County Attorney Benjamin Hayes. (A statute provided: “In the absence of the District Attorney, the County Attorney shall...attend all examinations in his county before Magistrates, of persons charged with offences cognizable in the District Court.”)
Scott found that Hayes had a case, and denied bail. Hayes was Scott’s law partner.
Now who do you suppose were the lawyers representing Robinson in his civil action against Jose Lugo and a son of his? Jonathan Scott and Benjamin Hayes.
At trial of that action, there was a hung jury on June 13. Historian W.W. Robinson says in his book “People vs. Lugo” that the case “drifted on for years and then, apparently, was switched to another county because Robinson’s attorney (Hayes) had become District Court judge.”
A legal system was in place in those early days, but not a system of justice.
This is evidenced not only by the foregoing, but by the official reaction to the killing on or about May 27, 1851, of John “Red” Irving and 10 members of his gang by Indians who had apparently acted as agents of the Lugos.
The May 31 edition of the Los Angeles Star reports that the “bandits had gone to the ranch of Jose Maria Lugo’s” and “stole various articles.” It continues:
“It is the prevailing opinion that the object was to murder the two young Lugos. Various circumstance tend to strengthen this belief. Their animosity towards the Lugos was very strong, and if they had fallen in with them, undoubtedly would have assassinated them.
“Irving had been heard to say that he would take the scalps of the young Lugos, and there can be little doubt that he was bent on murder as well as plunder.
“Not finding the Lugos at home, Irving left the premises, and struck into a road leading to the mountains. He must have supposed that he could gain the valley beyond, or he would never allowed himself to be surrounded in the manner which he was.
“The [Indians], many of whom are domicillated at Lugos, followed up Irving’s party, and attacked them with bows and arrows and lances. Irving followed the road into a ravine, the steep banks of which prevented his egress, and here it was that the whole party was slain. Not one was left to tell the tale.”
(One did survive: the gang’s first lieutenant, George Evans, whose threats to Brent were related in the last column. In a Nov. 20 issue of the Star, he is quoted as confirming that the objective had been to kill the Lugo Boys.)
The May 31 article notes:
“It seems probable that the Indians were impressed with the idea that they had authority to pursue these men. Years ago the authorities here gave to the chief of the Apolitans mission a direction to capture all thieves who might infest their neighborhood, and it is stated that more recently this authority has been renewed by the Judge of one of our courts.”
And the outcome?
A coroner’s jury found that Irving and his men “had broke into and robbed the houses of Jose Maria Lugo and [his bother] Jose Carmel Lugo, in consequence whereof they were pursued by a party of Indians of the Camilla nation, whose aid had been sought by the owners of said houses and of the stolen property, and the said deceased were killed by said Indians, after being called upon to surrender themselves, and having refused so to surrender, to be dealt with according to law.”
The verdict continues:
“We further find that the aid of said Indians was invoked on this occasion by Jose Carmel Lugo, as a citizen, for the protection of his own property; and that said Jose Carmel Lugo was a justice of the peace, and acted in the premises in that character. And we further find that the death of said deceased is a justifiable homicide.”
The grand jury on Oct. 14, 1851, indicted the Lugo Boys and Elisalde. (They could not have been charged by information; a prosecution by that means was not authorized until the Constitution of 1879 went into effect on Jan. 1, 1880.)
The sheriff could not arrest the defendants; they were in hiding.
Brent recalls in his book:
“There were many substantial defects in the indictment and proceedings, which nullified them, and the district court was compelled on motion to set aside the indictment.”
Yet, the charges on which the defendants had been arraigned before Scott remained. On Oct. 11, 1852, the defendants presented themselves and the charges were dismissed by the county judge for lack of evidence.
Copyright 2011, Metropolitan News Company