
    ARCE et al. v. STATE.
    (No. 4314.)
    (Court of Criminal Appeals of Texas.
    April 17, 1918.)
    1. CRIMINAL Law <&wkey;>304(2) — Evidence—Judicial Notice — ‘Matters oe History.
    The courts know as a matter of history of current events attending the recent trouble between the United States and Mexico, wherein a column of troops under Gen. Pershing invaded that country and incidental fights and battles occurred in connection with the invasion.
    2. Criminal Law &wkey;304(2) — Evidence—Judicial Notice — Matters of History.
    It is a question for judicial cognizance and knowledge that the battle at San Ygnacio -which occurred during the recent trouble between this country and Mexico was never disavowed by the Mexican de facto government.
    3. War &wkey;>l — State of “War” — Battle on Mexican Border.
    The battle at San Ygnacio between the United States troops and expeditionary forces of Mexico commanded by officers of the Carranza de facto government in which soldiers were killed, wounded, and captured, constituted a state of “war,” though it be an incomplete state.
    [Ed. Note. — For othf"’ definitions, see Words and Phrases, First an Second Series, War.]
    
    4. Criminal 'Law <&wkey;95 — Jurisdiction-Punishment of Foreign Soldiers — Mexicans Fighting United States Troops.
    The courts of this state have no jurisdiction to punish Mexican soldiers killing a United States soldier incidental to a battle in Texas between Mexican and United States troops during a state of war between this country and Mexico, but the authority to punish, whatever may have been their rights, is within the jurisdiction of the federal government.
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Jose Antonio Arce and others were convicted of murder, and they appeal.
    Reversed and remanded.
    C. M. Henry, George & Townes, and Greer & Hamilton, all of Laredo, for appellants. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Jose Antonio Arce, Vi-cinte Lira, Pablino Sanchez, Jesus Cerda, Isabel de los Santos, and Fredrico Gutierrez Zapata were charged with killing William Oberlies. Four of these .defendants were placed upon trial for the homicide, namely, Arce, Lira, Sanchez, and Cerda, and given the death penalty for the killing of Oberlies, who, it seems, was a corporal in the United States federal army.

There are many interesting questions presented for revision in various ways. The motion to change the venue, application for continuance, exception to the jury, and incidental matters will not be discussed. They may not arise upon another trial if one should occur, and, should they, will be presented in a different light and from a different view perhaps, as set forth in the record.

A condensed substance of the facts will show that during the recent trouble on the Rio Grande and in Mexico there was trouble between the United States and Mexico. We know, as a matter of history, of the current events attending this trouble, that the United States invaded Mexico with a column of troops under Gen. Pershing, and there may have been other like occurrences on the Rio Grande by the United States troops. It is not the purpose of this opinion to go into the history of the trouble between the two countries and the incidental fights and battles that may have occurred in connection with those troubles. Suffice to say, they did occur, and under the authorities this brought about a condition of “war” between the two countries. It was not what the authorities may term a complete state of war, but rather in the nature of an incomplete state of war. There was no formal declaration of war as we understand the history of the times between the two countries, where a state of warfare was recognized as existing between the two countries. During these troubles, among other things that occurred was a force organized at Monterey by the direction and under the authority of the Carranza de facto government. It is shown by this record that, when this command was completed and the plan laid, it was done with the view of invading Texas and attacking some of the federal troops located just below Laredo at San Ygnacio. There was a company of cavalry of the regular army stationed at this point with trenches and other means incident to resistence from attack. These Mexican troops made an attack upon this troop of United States cavalry at night. On the night of the attack, another troop of United States cavalry reached the point where the first troop was camped, to spend the night en route to Zapata county, and when the fight came off^that night both troops were in action. Four or five United States soldiers were killed and nine or ten of the Mexicans. Three of the Mexicans and one that was wounded were captured. These were tried Tinder this indictment in the Texas state courts and on conviction given the death penalty. The evidence makes it clear that these Mexican troops were commanded by Carranza officers. One of these officers was killed during the fight who seemed to rank as a lieutenant colonel. The commanding officer of the Mexicans was De los Santos, who, it seems, was later captured by the forces of Villa and executed. His name was in this indictment, but he was never arrested. That a state of warfare existed between the two countries is not questioned. Brig. Gen. Enoch H. Orowder, Judge Advocate, U. S. A., has the following to say in an official opinion :

“It is thus apparent that under the law there need be no formal declaration of war, but that under the definition of Vattel a state of war exists so far as concerns the operations of the United States troops in Mexico by reason of the fact that the United States is prosecuting its rights by force of arms and in a manner in which warfare is usually conducted. The statutes which are operative only during a period of war have been interpreted as relating to a condition and not a theory. * * * I am therefore of the opinion that the actual conditions under which the field operations in Mexico are being conducted are those of actual war. That within the field of operations of the expeditionary force in Mexico, it is a time of war within the meaning of the fifth-eighth article of war.”

There is also, in connection with this record, in'the motion for new trial, exhibited to the court excerpts from a communication from the district attorney of Webb county to John L. Wroe, secretary to Gov. Ferguson, as follows:

“The jury returned the verdict of guilty and assessed the punishment of death. These four Mexican citizens testified under oath that they belonged to the Constitutionalist Army of Mexico; that the band that attacked San Ygnacio consisted of 75 men; and that they were publicly organized and equipped in Monterey and Jari-fa, with the full knowledge of the officers of the de facto government of Mexico. The recent trials in Webb county of the bandits who murdered our soldiers at San Ygnacio, the fact that they wore publicly organized and equipped.in Mexico, that they met and mingled with the forces and officers of the de facto government, that they were furnished transportation in three railroad cars from Monterey to Jarita, that it was widely proclaimed at Monterey that these bands were going to make hostile incursions into Texas, that men high in the councils of the de facto government were cognizant of the unlawful enterprise, and yet not a finger was raised by that government to frustrate the mission. I charge the de facto government with full responsibility for the recent raids committed in my district, and I charge that these raids were conducted with the knowledge and consent, if not the approbation, of the • de facto government.”

It might also be stated, in this comlection, that it is a question for judicial cognizance and knowledge that this battle at San Ygna-cio was never disavowed by the de facto government of Mexico. It seems also to be within accurate statement that the organization of these expeditionary forces attacking San Ygnacio was by and under the direction of Gen. Nafarrette, Gen. Fierros, Gen. De la Rosa, with Gol. Gavanas, Gol. Isabel de los Santos, Col. Oruz Ruis, and others, and these were officers of the Con-stitutionalist or de facto Carranza government. Col. Cruz Ruis was killed in the battle.

This, we think, was a state of warfare. See, in addition to what has been quoted from Bas v. Tingy, 4 Dall. 37, 1 L. Ed. 732-733, U. S. Supreme Court Reports, as follows:

“It may, I believe, be safely laid down that every contention by force, between two nations, in external matters, under the authority of their respectivo governments, is not only war, but public war.”

While the invasion of Mexico by Gen. Pershing’s column was not a public or complete war, or not preceded by a declaration of war against Mexico by the United States, it was an act of war, and under the definitions given by Gen. Crowder and the authorities generally it was technically and within the limited meaning of the word “war.” It was not made with the consent of the de facto government of Mexico, but rather in fact over the protest of that country. In the case of Montoya v. United States, 180 U. S. 261, 21 Sup. Ct. 358, 45 L. Ed. 521, it was said:

“To sustain a claim under this section, it is incumbent upon the claimant to prove that the Indians taking or destroying the property belonged' to a band, tribe, or nation in amity with the United States. The object of the act is evidently to compensate settlers for depredations committed by individual marauders belonging to a body which is then at peace with the government. If the depredation be committed by an organized company of men constituting a band in itself, acting independently of any other band or tribe, and carrying on hostilities against the United States, such acts may amount to a war for the consequence of which the government is not responsible under this act, or upon general principles of law. United States v. Pacific R. Co., 120 U. S. 227, 30 L. Ed. 634, 636, 7 Sup. Ct. 490.”

This extract is made from Preciat v. U. S., 67 U. S. (2 Black) 635, 17 L. Ed. 476:

“ ‘War’ has been well defined to be ‘that state in which a nation prosecutes its right by force.’ The parties belligerent in a public war are independent nations. But it is not necessary, to constitute war, that both parties should be acknowledged as independent nations or sov-, ereign states. A war may exist where one of the belligerents claims sovereign rights as against the other.”

The Montoya Case was a claim by a citizen against the United States for a depredation by an Indian band commanded by the Chief Victoria. Some of the troop of which Victoria was chief was friendly to the United States; many of them were not. Victoria organized a band of his own tribe and Indian warriors from other tribes and depredated upon the people of New Mexico and finally went into Old Mexico. There was a fight between the band o^ Victoria and United States troops. Tbe claim was made for a depredation made by Victoria and was held not valid because it was not brought within the terms of the law which makes the United States responsible only for depredations by trib'es friendly to the United States.

It occurs to the writer that, according to the principles laid down in these decisions and under the general rules with reference to warfare, the Mexican column that attacked the troops at San Ygnacio came within those rules, and that, if they were to be dealt with for crossing the river and fighting our troops, it should be done by the United States government and not by the Texas courts. Texas has no authority to declare war against Mexico nor create a state of war. This must be done by our general government at Washington by the special delegated authority in the Constitution of the United States. Whatever may have been the rights of these Mexicans, the authority to punish, the writer feels, is within the jurisdiction of the United States and not the courts of Texas. If there was a state of war between the two countries, actual and complete, or inchoate and incomplete, then it became an international or federal question and not a state matter.

It might be interesting but of no practical value to follow this matter with reference to some fighting that occurred in Mexico at the time Gen. Pershing’s column invaded that country in which some of our soldiers were killed and some captured. The principles above laid down, as far as our information goes, controlled the relation between the de facto government of Mexico and the United States with reference to that battle and our soldiers who were captured. They were not tried by the Mexican courts, but turned over to the United States, as we gather the history of that transaction. So from this viewpoint we are of the opinion that this judgment should be reversed.

We might also refer to the invasion .of Mexico by the United States army and navy at Vera Cruz under the command of Gen. Funston. Our soldiers, if captured, would have been subject to trial and punishment In Mexican courts under the same rules as their soldiers would in our courts.

There is another interesting question or two in the case which may be mentioned incidental to the other question. Gen. Mann was used as a witness, as were other federal officers, among them the two captains who commanded the two troops of cavalry on the night of the fight. From their testimony, a general statement may be made to the effect that these Mexican soldiers would be controlled by their officers in command and be obedient to them; that the command was organized- under the authority of the Carranza or de facto government of Mexico and were, in fact, a military command. By this testimony it seems that, wherever under such circumstances, the soldiers must obey the order of their superiors, and failure to do so would subject them to discipline which rates from minor punishment, to death, according to the rule which has been violated by those under authority. When a soldier is ordered to fight, it is his duty to do so, and he may forfeit his life on refusal so to do. If he deserts under certain circumstances, he may be shot or executed. These. Mexican soldiers were orderéd by their officers, commanded by the officers, headed by the officers to make the fight; the officers led them into the battle, and they fought. Some were killed; others escaped and fled. Some were wounded, one of whom was captured and is under sentence in this case. It seems while being tried he was suffering severely from a wound. One at least of the defendants claimed to have been forced to go into battle by his commanding officer. He did not desire to fight, but under the rules .of warfare if he deserted he would be tried and would be shot, or if he . disobeyed orders and failed to engage in the fight he might forfeit his life.

If the state courts had jurisdiction of these defendants, we are of opinion the conviction is erroneous.

From any viewpoint of this case, we are of opinion that this judgment should be reversed, and the cause remanded.

PRENDERGAST,’ J., absent. 
      (SsoFor other cases see same topio and KEY-NUMBER In all Key-Numbered Blgests and Indexes -
     