And whereas such a law has only appeared quite recently, a very long time after the acts which form the subject of the prosecution, and it requires, moreover, in order to render the penalty of detention applicable, conditions which do not exist in this case;
Whereas, consequently, the letter of the Governor-General being unable to run counter to the Penal Code could not justify the violation of individual liberty;
And whereas it is quite possible that the accused may have been mistaken on this point, but the fact of acting in good faith cannot be taken as a justification for a breach of the law;
Whereas it is just, however, to take this into consideration in order to give the accused, on this head, the benefit of extenuating circumstances to the greatest extent possible;
On the fifth count:
Whereas it is established and admitted by the men accused that one of the prisoners detained at Mimbo, having attempted to escape during the night, was killed with an Albini rifle by the sentry on guard;
And whereas the accused maintains that he had absolutely nothing to do with this act;
Whereas, although it is established by the evidence of the witnesses that the accused had always given his men orders to fire on prisoners who tried to escape, it is not, however, proved that the sentry who fired was one of the men placed directly under his orders;
Whereas, on the contrary the proceedings seem to show that the man in question was a workman of the post of Mimbo, and that he had been placed as a sentry by the Manager of that factory;
And whereas the murder, therefore, could not be imputed to the accused;