Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1880
No. 453.
Mr. Foster
to Mr. Evarts.
Mexico, December 18, 1879. (Received January 5, 1880.)
Sir: In my dispatch No. 1041, of September 26 ultimo, I reported that the Mexican minister of foreign affairs had informed me of the [Page 714] trial and execution of a Mexican in Mexico, for the murder committed upon another Mexican in Texas.
In referring to the fact that I had asked the minister for a copy of the record of proceedings of the trial, I said if the trial and conviction had occurred before a civil tribunal and not a military court, the case might well be regarded as of special significance; and a reference to the record of proceedings which has been furnished this legation, and of which I herewith inclose a copy, shows that such has been the case.
In the decision of the magistrate of the first chamber of the superior tribunal of the State of Coahuila, it is stated that the jurisdiction of the Mexican courts in the case is not disputed in any part of the proceedings, and that this jurisdiction is provided for in the Mexican penal code.
The execution of Avalos in Mexico, by sentence of a Mexican tribunal, for a murder committed in American territory, is the first instance on record in this legation of punishment having been inflicted for a crime perpetrated under the same circumstances.
This precedent is considered valuable in showing that Mexican law provides for such punishment, and that it can be enforced when the Mexican authorities are disposed, as in this instance, to execute it. Although the murdered man was a Mexican, the article of the penal code invoked by the tribunal already referred to is equally applicable to foreigners.
For your information I inclose a translation of the article of the penal code under which the trial and conviction was had.
I am, &c.,
Mr. Ruelas to Mr. Foster.
Mexico, October 13, 1879.
Sir: Referring to the note of your legation dated the 3d of last June, and complying with the desire expressed by said legation, I have the honor to remit to you copies of an extract of the principal proceedings in the case instituted against Zeferino Avalos for the crime of homicide, as well as of the sentence of execution which was pronounced in the case.
I have, &c.,
Superior Tribunal of Coahuila.
On the 26th of November, 1877, the chief of the custom-house guard on the Rio Grande turned Second Sergeant Zeferino Avalos over to the judicial authorities on account of the homicide perpetrated on the person of his fellow-citizen Antonio Muñoz, on the other side of the Rio Grande.
The trial having been instituted, the judge ascertained that the body of Muñoz had on it a wound made by a pistol, the ball entering on the left side of the nose, thus breaking the superior jaw and entering the brain.
The professional experts, Drs. Pablo Valadez, Toribio Muzquis, Cárlos Frederick, and Cárlos Estraus, testified that the wound received by the blind man Muñoz was necessarily mortal; that it caused instantaneous death, and that it would have been impossible for science to save the unfortunate man.
As the homicide was committed in the American town called Eagle Pass, a summary investigation was instituted there, which was presented to the respective jury, which in its verdict declared: [Page 715]
- 1st.
- That the blind man, Antonio Muñoz, received a wound in the face, inflicted with a fire-arm, which caused instantaneous death.
- 2d.
- That the Mexican Zeferino Avalos is the author of the crime.
The criminal having been apprehended by the authorities of Mexico, the trial was commenced, and the criminal Avalos expressly confessed that he killed the blind man Muñoz, stating that he did it because the latter fought him, trying to take from him his pistol.
The eye-witnesses of the act, Cárlos Sandoval, Nicanor Castro, Rafael Bernal, and others, declared that Zeferino Avalos took a skirl to cross the left bank of the Rio Grande; that while in the middle of the river he fired two shots with his pistol towards where some women were washing, and being rebuked for this, he replied that “when he wished to Mil a man he killed him that having reached the shore, he went towards the unfortunate blind man Muñoz, drew his pistol and fired, killed him instantly, without the eye-witnesses, notwithstanding that they were very near, being able to notice any quarrel or other motive for this atrocious crime.
But the youth Cárlos Farias, the blind man’s guide, testified that Zeferino Avalos approached, asking the blind man to say a prayer for him, which the latter declined to do, stating that he lived by his work and not by charity, and with no other motive than this Sergeant Avalos drew his pistol and killed him.
A judicial investigation being made into the lives and habits of the criminal and his victim, all the witnesses testified that Zeferino Avalos was a vicious, incorrigible man, a very bad husband, a deadly, passionate, and cruel enemy; that the blind man, Antonio Muñoz, on the contrary, was docile, peaceable, and of an agreeable and beneficent character.
The criminal having been heard in defense, the judge of letters of Piedras Negras condemned him, on the 17th of May, 1878, to the death penalty, ordering that he should be shot, which sentence was confirmed the 29th of January of this year by the magistrate of the first chamber of the superior tribunal of justice.
The judge of letters of Rio Grande notified the criminal Zeferino Avalos of this sentence, whereupon he applied to be pardoned, which application being presented according to the laws in force, on the 3d of March last the legislative power of the State decreed the following:
“Sole article. There is no reason for granting the pardon asked by the criminal convicted of homicide, Zeferino Avalos, of the penalty of death, to which he was sentenced by the superior tribunal of justice of the State.”
In view of this result, the execution of the criminal Zeferino Avalos was ordered, which took place in Piedras Negras the 25th of March last, having been attended by the Twenty-sixth Battalion of the line, commanded by its worthy colonel, Pedro Troncoso, which execution was reported in the note herewith inserted.
“To-day, at 7 o’clock a.m., the penalty of death was executed on the person of Zeferino Avalos, for the crime of homicide, in the cemetery of this town, which act I attended in compliance with the communication you were pleased to send me for such purpose under date of yesterday, which I have the honor to report to you for the proper ends.
Liberty in the constitution.
Piedras Negras, March 20, 1879.
F. M. GALINDO. (A rubric.)
To the Judge of Letters of the District of the Rio Grande, Present.”
By order of the magistrate of the first chamber I have made this hasty extract of the cause of Zeferino Avalos.
Secretary.
A seal which says: “Superior tribunal of the State of Coahuila.”
Compared.
The president of the superior tribunal:
I, Hipólito Charles, constitutional governor of the free and sovereign State of Coahuila, Zaragoza, certify that the signature authorizing the extract of the principal proceedings in the case of the criminal Zeferino Avalos is that of the president of the superior tribunal of justice, Licentiate Jesus Maria Martinez y Anciza, and which he uses in his official acts, to which may be given the faith and credit which the laws authorize.
- H. CHARLES.
- Miguel Gomez y
Cardenas,
Secretary.
A seal which says: “Government of the free and sovereign State of Coahuila de Zaragoza.”
Superior Tribunal of Coahuila.
Saltillo, January 29, 1879.
Copy of the final sentence pronounced in the court of last appeal in the case instituted against Zeferino Avalos for the murder of Antonio Muñoz, perpetrated in the territory of the United States of the North.
Having examined the proceedings in the trial commenced on the 26th of November, of the year before last, before the first local judge of Piedras Negras, against Zeferino Avalos, a resident of that town, who is twenty-six years of age, married, and second sergeant of the Corps of Military Colonies, for the murder on the left bank of the Rio Grande, United States of the North, perpetrated on the person of Antonio Muñoz, having seen the original and the translation of the evidence taken by the judge of Maverick County, concerning the crime and its author, with the verdict of the coroner’s jury, which declared: “First, Antonio Muñoz died in consequence of a bullet wound inflicted with a fire-arm, the projectile entering on the left of the nose, following an upward, oblique direction, thus fracturing the superior jaw, and penetrating the brain; and, second, said bullet wound was inflicted by Zeferino Avalos, the 26th of November, 1877, on the (left) bank of the Rio Grande, town of Eagle Pass, Maverick County, State of Texas, thus causing instant death;”
Having examined the proceedings of the local judge of Piedras Negras, embracing the declaration of the criminal, testimony of the witnesses, investigations, certificates of the death of the deceased, the confession and self-accusation of the criminal, the defense made, and the sentence pronounced by the judge of letters of the district of the Rio Grande, which, considering the killing committed by Zeferino Avalos as premeditated, with advantage and treacherously, the death penalty was pronounced against him in accordance with article 561 of the penal code in force, and leaving the resources of the law upon civil responsibility to the relatives of the deceased;
Having examined the petition in which it is asked that the sentence of the lower court be revoked, and that the penalty of fifteen years’ incommutable imprisonment be imposed on the criminal, said petition being based upon the extenuating circumstances that the criminal was intoxicated, and that there not having existed any cause for the perpetration of the crime, it should be considered that there were no premeditation, advantage, and treachery;
Having examined the sentence pronounced by the third chamber of this superior tribunal, reversing the sentence of the lower court and condemning the criminal to fourteen years’ imprisonment and detention for a time equal to one-fourth of that term, the magistrate of that chamber having based his action on the extenuating circumstance of partial intoxication, as well as on that of the crime having been committed without a cause, and considering the case comprehended in article 552, clause 3 of the penal code;
And, finally, having examined the note addressed by the secretary of foreign affairs to this superior tribunal, asking a report as to the state of the cause in which sentence was pronounced as far back as the 17th of May of the last year by the judge of letters of Piedras Negras, as well as asking for a certified copy of the final sentence that may be pronounced, from which it appears;
- 1st.
- That on the 26th of November, 1877, Zeferino Avalos, second sergeant of the military colonies, took a skiff to go on a visit to the other side of the Rio Grande.
- 2d.
- That while in the middle of the river he drew his pistol and fired two shots toward the Mexican side in the direction of several women washing.
- 3d.
- That being rebuked for .this by the boatman, he replied in a naughty tone that “when he wished to kill a man he killed him.”
- 4th.
- That having crossed the Rio Grande, he went toward an unfortunate blind beggar, who, guided by a boy about twelve years old, was six or eight yards from the water’s edge, and Avalos, having drawn his pistol, pointed it at the unhappy blind man at a yard’s distance from him, when he fired, the victim falling to the earth, dying instantly.
- 5th.
- That the murderer returned immediately; he wished to take a skiff to recross the Rio Grande, and fearing he would not be permitted to do so, threatened the owner of the skiff with his pistol, who was thus forced to cross him.
- 6th.
- That the crime, although committed within the sight of several persons, they were not at such a distance as to be able to hear what passed between the victim and the murderer, but that the boy, Celso Farias, who was guiding the blind man, says that when Avalos approached he said he wished a prayer said, to which Muñoz replied, refusing, saying that he did not know how to say prayers; that he lived by his work, so as not to ask alms; and that as he said this the murderer fired the shot which deprived him of his life.
- 7th.
- That the criminal has confessed in several parts of the proceedings that he was the author of this grave offense, and, although at the commencement he gave as a [Page 717] reason that the blind man had insulted him and threatened to take his pistol from him, besides this being improbable, he afterwards contradicted himself, stating that he had committed the murder under the influence of liquor, and it should be held as undeniable that neither the one nor the other is the real cause for the perpetration of the crime.
- 8th.
- That from the evidence of several witnesses it appears that Zeferino Avalos, while intoxicated, is a provoking, quarrelsome, and cruel and treacherous man, which detestable qualities caused him to be feared by the people.
- 9th.
- That on the other hand, the unfortunate blind man, Antonio Muñoz, was of a prudent and peaceable character, and having an unimpeachable name.
- 10th.
- That all the eye-witnesses declare, with one accord and unanimously, that Avalos at the moment of the murder did not appear to be intoxicated, because he acted as though he were in the full enjoyment of his mental faculties, taking rapid flight, getting into the skiff, threatening the owner with his pistol in case he should not be permitted to repass the river, &c.
Considering:
- 1st.
- That the fact of the crime, which must be the base of all judicial proceeding, has been thoroughly proven in this case by the following proceedings: the depositions of the American physicians, Drs. Charles Frederick and Charles Strauss, and the Mexican experts, Manuel Herrera and Rafael Bernal, according to which the wound received by Muñoz deprived him instantly of his life, without it being possible for human skill to have saved him, or anybody in his situation; the certificate of death by the judge of Eagle Pass, certifying to the act of the coroner, and a multitude of other relative proceedings.
- 2d.
- That with respect to the author of this crime, there are two classes of proofs against Zeferino Avalos, his judicial confession, which is repeated several times, and the uniform depositions of four or more persons who witnessed the act.
- 3d.
- That, as to motives, there is no information of any, except that stated by the boy Farias, who was guiding the blind man, which motive for an able and overbearing man might have been sufficient of itself to produce rage, upon seeing himself treated contemptuously by the unfortunate blind man, whom he intended to make sport of by asking him to say a prayer.
- 4th.
- That it may be held as undeniable that the homicide was committed with advantage, which is proven, according to article 517, clauses 1, 2, and 4, of the penal code, by a young, strong, and armed man attacking an unfortunate blind man, who is weak, old, and without the means of defense.
- 5th.
- That another evident truth is that the homicide was perpetrated with treachery, which, according to article 518 of the said code, consists in attacking a person by taking him unawares, or by employing means which do not give time for defense nor to avoid the injury intended.
- 6th.
- That there appeared in this grave offense the aggravating circumstances referred to in article 44, clauses 1, 5, and 8; article 49, clauses 9 and 14; article 46, clause 11; article 47, clauses 3 and 10.
- 7th.
- That with respect to extenuating circumstances, the only one it has been attempted to allege, is the plea of partial intoxication; further, it is another fact, thoroughly evident, that said circumstance should not be accepted, in the first place, because it is not proven in these proceedings, as is stated in paragraph 10 of the results; and, secondly, because article 41, clause 1, of the penal code, positively provides that it must be accidental or involuntary, and exactly the contrary appears respecting the drunken, vicious, and incorrigible murderer.
- 8th.
- That in virtue of the foregoing the inferior court has judged the acts properly and made a proper application of the penal laws, in imposing on Zeferino Avalos the punishment which he deserves, and as the third chamber has revoked that sentence, it is necessary to give the reasons the first has for not agreeing with such a respectable authority.
- 9th.
- That the decision of the third chamber is based on article 552, clause 3, of the penal code, which says: “Twelve years’ imprisonment shall be imposed for simple intentional homicide, when the criminal commits it without cause and only on account of his brutal ferocity.”
- 10th.
- As it is necessary to fix with all clearness the true meaning of the article of the code, it is proper to note that chapter 6 speaks of simple homicide, and that name is given, according to article 550, to homicide not premeditated, nor committed with advantage, by treachery or by treason. In consonance with this principle, article 552, upon which the third chamber based its action, says that twelve years’ imprisonment shall be imposed upon whoever shall commit homicide without cause, and on account of his brutal ferocity, if it is simply intentional (let this phrase be well understood); hence, if the homicide was not simple but qualified, that is to say, committed with premeditation, advantage and treachery, or treason, the criminal deserves the death penalty, although he may have perpetrated the crime without any cause whatever, and only on account of his brutal ferocity. Such is the argument called contrario sensu, which in law has great force, as it is derived from the very prescriptions of the law
- 11th.
- That examining the definition which, according to the first chamber, should be given to article 552, clause 3, of the penal code, the case provided for in it would, for example, be the following: If the criminal Zeferino Avalos, thirsting for human blood, should attack, without any cause whatever, a passer-by, who being opportunely warned of the danger, should make use of his arms, defend himself, and be killed in the fight; but if the said Avalos, with no other motive than his ferocious pleasure, should arm himself with a knife, go into the streets of a city, and commence to cut the throats of the women, children, blind men, cripples, and all other defenseless persons, to qualify those acts as simple homicide, thus freeing from the death penalty that savage beast in human shape, would be contrary to common sense, and it should not be supposed that the legislator desired to decree such an absurdity.
- 12th.
- That on the other hand it cannot be maintained that Zeferino Avalos acted without any motive whatever when he murdered the defenseless blind man, Antonio Muñoz, because to the passionate and cruel character of the criminal, the fact of the blind man having refused to comply with his humiliating demand to say a prayer in order to mock him, might have been deemed sufficient motive for the commission of the deed.
- 13th.
- That even if it is the duty of the third chamber to blindly follow the law, according to the principle, judices non de lege sed secundum legem debent judicare, clause 3 of article 552 having no application, the observation is permitted that it would be extraordinary or, rather, impossible for a crime to be committed without any cause whatever. The magistrate occupying the first chamber professes the philosophic principle taught in law schools, that nihil est in mundo materiale sine ratione sufficiente. That principle has exact application in the physical and moral orders: there is no effect without a cause, and no human action without a motive to cause it.
- 14th.
- That even supposing a homicide should be committed without any cause whatever, the law, by insuring life to whoever kills only on account of his brutal ferocity would establish this repugnant and absurd principle: taste for human blood constitutes an extenuating circumstance.
- 15th.
- That the principle established by law should have a general application, and if in the article discussed it is maintained that there may be a homicide without a cause, then it should be allowed that robbery, rape, and other crimes may be committed without a cause, and merely from ferocity, which consideration taken in connection with the others mentioned should, in the humble opinion of this chamber, influence the legislator to derogate clause 3 of article 552.
- 16th.
- That it is a badly applied compassion to preserve the lives of such criminals as Avalos, because, although the death penalty is cruel, it is more so for the judicial authorities to permit outlaws to impose it on innocent persons, upon the beneficent members of society.
- 17th.
- Considering, finally, that the right of the authorities of Mexico to try this crime committed in the territory of the United States of the North, is recognized in-various parts of the proceedings, as well as authorized by article 186 of the penal code in force.
In view of the said considerations and legal grounds, the magistrate who constitutes the first chamber of the superior tribunal resolves:
- 1st.
- The sentence of the third chamber, which condemned the criminal Zeferino Avalos, for qualified murder, to fourteen years of imprisonment with an additional time equal to one-fourth of the term, in detention, is revoked.
- 2d.
- The sentence of the judge of letters of the district of the Rio Grande is confirmed in all its parts, which condemned the criminal to the death penalty.
Let notification be given, and send the proceedings of this cause to the said judge of letters that this sentence may be executed in conformity with the prescriptions established by the laws, and, this being done, he will return the proceedings to the secretary of the tribunal to be placed in the archives.
Thus decreed, ordered, and signed the magistrate.
I bear witness.
Felix Maria Salinas, Secretary. (A rubric.)
A true copy, to which I certify.
Felix Ma. Salinas, Secretary.
A seal which says: “Superior tribunal of Coahuila.”
I, Hipólito Charles, constitutional governor of the free and sovereign State of Coahuila de Zaragoza, certify that the signature of Licentiate Jesus Ma. Martinez Anciza, president of superior tribunal of justice of the State (of Coahuila), which certifies to [Page 719] the foregoing copy of the final sentence, is that which the said magistrate uses on Ms official acts, to which the faith and credit authorized by law may be given.
Miguel Gomez y Cardenas, Secretary.
A seal which says: “Government of the free and sovereign State of Coahuila de Zaragoza.”
Mexican penal code.
Article 186.
The offenses committed in foreign countries by a Mexican against Mexicans or foreigners, or by a foreigner against Mexicans, can be punished in the republic and in accordance with its laws, if the following circumstances concur:
- 1st.
- That the accused party be in the republic, whether he may have come voluntarily or his extradition be obtained.
- 2d.
- That if the offended party be a foreigner, the complaint be made from a legitimate quarter.
- 3d.
- That the criminal shall not have been definitely tried where the offense was committed, or, if he should have been, that he should not have been acquitted.
- 4th.
- That the offense of which he may be accused have the character of a crime in the country where it shall have been committed and in the republic.
- 5th.
- That the crime, according to the laws of the latter, involves a punishment greater than “greater arrests” (imprisonment from one to eleven months).