Decrees pronounced by the Supreme Tribunal of Gov on the proceedings against João Castane Marçal, principal, and Cypriano Antonio Pachecks, Francisco d'Assis Fernandes, and Alexandrino Antonis de Mello, accessaries.
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Decreed by the Supreme Tribunal That taking cognizance of the appeal preferred fol. 11 and of the sentence in fol. 35. Whereas the provisions of Ord. lib. 5 t. 66, enjoined by Alvará of 13th November 1756, were not observed. for it is not only proved that the appellant Cypriano Antônio Pacheco had not in his possession any sum of money belonging to the principal, João Caetano Marçal, but it appears the contrary in fol. that the latter was indebted to him in a considerable sum, and in order that grounds might exist for instituting criminal proceedings against the appellant, it was previously necessary that he should be ordered to refund this amount, and that he should have refused, which does not appear, neither is it evident that the bankruptcy had been made public according to the provisions of Art. 1129 of the Commercial Code, and consequently in default of the requisition made to the Appellant, of actual evidence, or other proofs to show that the Appellant afforded advice or assistance to the principal in the commission of the offence with which he is charged (which even in the opinion of Revisers cannot have been made out), the Appellant should not have been found guilty, and furthermore, the Deputy Judge ought to have acquitted him, having acknowledged at the same time that the charge against the Appellant had not been proved, by doing which, he certainly infringed the article 220 of the Reformed Code. How therefore in support of this appeal we decree That the sentence appealed against be annulled and that the Judge à quo cancel the charge.