Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 3, 1889

Mr. Ryan to Mr. Blaine.

Legation of the United States,
Mexico, June 30, 1889. (Received July 9.)

No. 30.]

Sir: I have the honor to forward herewith the various papers relating to the case of R. C. Work, as promised in my dispatch, No. 27, of June 27.

Although the evidence and presentation of the case by defendant’s attorney and the findings and sentences of the courts, respectively of the first instance and of the first chamber of the supreme court, are not authenticated, they are doubtless true and correct, for the consular agent, Mr. King, states, in his letter transmitting them to the legation, that they are accurate copies of the originals on file.

It is apparent, however, from the findings of the respective courts, that copies of all the evidence have not been transmitted to me. Nevertheless, sufficient appears in the testimony in my possession—the presentation by the defendant’s attorney, and the findings and sentences of the respective courts—to show the exact nature of the offense charged against Work, and the issues made by the facts presented at the trials.

If, indeed, there appears any possible warrant for the intervention of the Government in this case, it can not be assumed in advance that the court of last resort of the state, to wit, the second chamber of the supreme court (before which the case is now pending), will deny the defendant justice, provided injustice has been shown him in the former proceedings.

Although I am not in receipt of any special instructions from the Department concerning the matter, at the same time, in view of the public interest which has been enlisted in this case in the United States, I have deemed it proper to address a request to the consular agent at Ciudad Victoria, that, should the defendant be finally adjudged guilty, and sentenced, I may be put in possession, at the earliest possible moment, of a certified copy of the entire record of the case, inclusive of all the evidence, and which I should promptly transmit to the Department for consideration.

I am, etc.,

Thos. Ryan.

[Inclosure 1 in No. 30—Translation.]

Appointment of Juan Luis Tercero as attorney for Robert C. Work.

First Chamber, 1889.

Touching the criminal proceedings in the court of the justice of peace, of the eighth district, against Robert C. Work, charged with homicide.

Guadalupe Mairnero, Judge,

Juan Gonzalez Calderon, Secretary.

Court of first instance, of the eighth judicial district.

The case against Robert C. Work was finished in this court and goes to you, by appeal, in 16 sheets.

Please advise your chief thereof, and send me the customary receipt for the papers herein inclosed.

Liberty and Constitution.

San Cárlos, January 28, 1889.

Antonio Velasquez.

To the clerk of the supreme court of justice, of the state, etc., at Ciudad Victoria.

Ciudad Victoria, Tamaulipas, Aulipas, February 22, 1889.

Advise Lie Juan Luis Tercero of his appointment as attorney for the defense, as selected by the accused, Robert C. Work, and upon his acceptance take the usual legal protest in the case.

Decided thereby the magistrate who subscribes thereto.

I abstract.

Lic. Mairnero.

Juan G. Calderon, Sec.

On the same day and date Juan Luis Tercero being in this clerk’s office was so notified and advised and thereupon accepted the appointment, taking the protest to serve faithfully.

Juan Luis Tercero.

Calderon, Sec.

On the same day and date Juan Luis Tercero, attorney, having accepted the defense, the papers in the ease were delivered to him, subject to the limitation of the laws.

It so appears.

Calderon.

[Inclosure 2 in No. 30.—Translation.]

Statement of Juan Luis Tercero, attorney of Robert C. Work, Ciudad Victoria, Tamualipas, Aulipas, October 9, 1888.

Juan Luis Tercero, attorney of the accused, Robert C. Work, in the case instituted against him for having fired, in self-defense, upon Francisco Cruz, and from which the latter died, do herewith, before you, with due respect, make the following statement in support of his rights, his, claims, and his innocence.

I do now affirm that my client should be acquitted of the charge of wilful homicide. It should suffice that doubt was entertained whether Don Roberto acted in legitimate and necessary self-defense in order to acquit him, much more so should such a result follow when there are great probabilities of his absolute innocence.

Point by point I am going to demonstrate it to you with exact data and precise information, and I shall then apply to that data the laws and the principles of right.

• Firstly. As to the antecedents of Work. During the course of the entire proceedings no one has ventured to maintain that Work, at any time, committed any crime; on the contrary, evidence to the reverse has been furnished in writing by respectable parties, such as Don Antonio de la Fuente, the prosecuting attorney, Manuel Narvaez, merchant, Silverio Ramirez, farmer, all of whom affirm the excellent reputation for good conduct and uprightness of the aforesaid Mr. Work. (Pages — and —.)
• Secondly. As to the antecedents of Cruz: His friends and enemies alike, in nearly every case, who have deposed, have testified that Cruz was addicted to drinking, while evidence has also been furnished as to quarrels and contentions, in the which be had taken part (page —, and to close of the testimony of Felipe Valdez; page—; testimony of Antonio de la Fuente, who, on page — says, “Yes, he had always seen Cruz with a dagger.”) The words of Fernando Cruz, the accusing witness and brother of the deceased, in his own handwriting, are also to be noted. He says (page —): “But Mr. Work must have thought something was wrong.” The thought (of Work) alluded to by Fernando referred to two words used by Fernando just prior to that sentence, and which were literally to wit: “This Mr. Work, on seeing Francisco Cruz coming towards him with imprudence of the said two neighbors, followed by Antonio Vazquez and Pascual Guevara, who were speaking to him for the purpose of persuading him to do no harm to Mr. Work, but that this man probably must have thought something was wrong.” * * * Therefore, according to the testimony of Fernando himself, the brother of the accused, the conduct of Mr. Work may be explainable, for he thought that Francisco Cruz, followed as he was by Vazquez and Guevara, proposed to do him harm.

I ask, can testimony more favorable to Work be found to prove that in wounding one of the three who were following him, he did it in good faith under the presumption that they intended to assassinate him?

A brother of the deceased is the person making this declaration. Do we need aught of more weight, as explanatory of the two principles of right: In dubiis benigna interpretaio fieri debet in pænis benignior est interpretatio facunda, in reaching a favorable version of the conduct of Work, than the testimony not of himself but of his very prosecutor?

What, therefore, is a basis for a knowledge of act committed? Is it testimony of Work? Who is it that asserts the contrary to his declaration? They are his impassioned enemies, Vazquez, Guevara, and Grimaldo.

Even while they concur persistently in the matter that the deceased was following Work, they deny, or ignore, or rather affect to ignore the fact that Cruz threatened Work with a weapon. Let us presume, without however conceding it, that these witnesses were wholly without guile saying that it was possible that Cruz did not threaten Work with a pistol and a knife, or at least with a knife, yet the statement of Fernando Cruz, to wit, “That this Mr. Work must have thought something was wrong” should obtain, intimating as it did that Work thought that the rod in Cruz’ hand was a knife; this should not be lost sight of. This idea of the very brother of the deceased, thus expressed, operates against the statement of Vazquez, of Grimaldo, and of Guevara as well as any one else who could, any of them, be hardly credited with caring more for the deceased than his own brother Fernando! Down with any other less favorable explanation! And please notice that the document containing that admission by Fernando is all in his own handwriting, and signed by him. Without admitting it to be so, I have considered it as supposable that the adverse statements of the witnesses Vazquez, Grimaldo, and Guevara were easy of belief, for their impeachment is virulent, they have constituted themselves the impassioned revengers of the dead. I quote a passage from their testimony.

In the statement of the prosecuting attorney, Don Antonio de la Fuente (on page—), we find these words: “That while the prisoner was being escorted to the house of Antonio Vazquez * * * Leon Grimaldo assaulted him * * * together with Antonio Vazquez and Pascual Guevara * * * Grimaldo, with obscene words, telling the prosecuting attorney to take the prisoner to the spot where the dead man lay and tie him there.” Such are the witnesses who testify against Work, denying that the deceased carried a pistol. We muse therefore consider the testimony of Work, as a whole and indivisible, as is called for in conformity with the highest principles of jurisprudence, whose doctrine is well known, and in criminal matters well defined as regards confession. We see what the law prescribes in relation thereto. Some, however, maintain that the confession of the accused should be received as given, and accepted as true in as far as the contrary can not be demonstrated, thus vitiating the confession of those who admit the testimony of ocular evidence and not of circumstantial evidence, for the act itself can not be judged aside from the surrounding and governing circumstances. I have therefore maintained that the only conjecture we could judiciously entertain was contained in the testimony of Work.

It is clear and evident that the witnesses Vasquez, Grimaldo, and Guevara were not wholly reprehensible, it would yet be necessary to compare their assertions with those of Work, in all points of discrepancy, the prime point being whether Cruz carried arms or did not.

But so important a point should not be aftected by the testimony of three witnesses who are so completely unworthy of credit as to take to heart the death of Cruz to such an extent as to ask for the barbarous spectacle of vengeance, tying Work within sight of the corpse. They were incapacitated from giving unbiassed testimony at least, holding such ideas after the shooting. There are also data to the effect that even before the shooting they were engaged with the deceased in a plot against Work. But aside from this, which may rest only upon a suspicion, I insist that incapacity to truly testify in this point did exist in their case; for it is difficult to presume that these persons who felt such sorrow at the fate of poor Cruz should concur that he was armed and that he himself provoked his own untimely end.

It is to be noted that two others, eye-witnesses, Francisco Peña and Francisco Robledo, who are not such bitter adversaries of Work, present the facts more in accordance with the allegations of Work. I quote here literally from one passage (page —), that “Don Francisco Cruz spoke to Don Roberto twice; that on the decline, while Don Roberto was going down the hill, he stopped his horse across the road, with his pistol in his hand, and told Cruz not to come near him, for he would fire a bullet at him; that then Don Roberto kept along on the road, and after going a short distance he again stopped and repeated the same word to Cruz, not to come on, for he would shoot him; that he (Cruz) paid no attention, and went right on towards him; and that then Don Roberto fired at him, Cruz not falling until the second shot.” This can be found on page —. Later on he was examined on the point whether Cruz carried or did not carry arms, and he said he saw in his possession no arms whatever, unless it were a whip which he held in his hand.

There are here two things to notice: First, the sort of doubt as to whether he had any other weapon than a whip; and secondly, the supposition that a whip is also a weapon, as in point of fact it is throughout Tamaulipas, among the lower classes, for there the whip is generally composed of a rod of iron, which can inflict at times fatal blows, as is well known among the people of the State.

To this testimony of Peña should be added the deposition of Francisco Robledo (page —), which states that he “saw him (Cruz) going past after Work with a small knife in his hand, which he saw flashing.” This shows us that the negative doubt as to whether Cruz carried a knife becomes a positive point of debate; that is to say, some of the witnesses did not see (it is not the same to say did not, as it is to say did not see), while another said: “Yes, I did see.” Well, it is a standard doctrine in jurisprudence, which I herewith quote from the Dictionary of Escriche: “In matters of proof in criminal cases, two men similarly biassed are frequently deceived, and often imagine that they see what they really have failed to see; and vice versa, they fail to see what they should have seen, especially when their statements are governed and controlled by passion,” as in the case of Grimaldo, Vazquez, and Guevara.

I revert to my basal proposition. Of the five witnesses, Vazquez, Grimaldo, and Guevara are clearly incompetent, while Peña and Robledo are not firm and pronounced, touching this point. Did Cruz really have a knife? And, in the confirmation of evidence, as confronted with the deposition of Work, a doubt is left in the mind, the truth is but inchoate; and by all the considerations of equity, of justice, of legality, the benefit of the doubt should revert to Work, and the more so as the brother of the deceased himself tells us that this “Mr. Work probably thought something was wrong;” for he believed himself to be followed not only by Cruz, but by Vazquez, Grimaldo, and Guevara. This view of the circumstances is corroborated when we take into consideration the persistency with which Cruz followed Work for a distance of 99 varas,^* especially when it is remembered that Cruz followed him down hill, where he could readily inflict any injury premeditated on his part, and remembering also that Work was just finishing a trip of 13 leagues, after many days of travel, and was in sight of his home, eager to clasp to his arms his beloved wife and daughter. Truly, within the spell of a dream so peaceful and so welcome, it must have been something very dark—threatening in the extreme—something terrible and fatal, which Work saw, or thought he saw, to cause him to take the life of another. It is easy to fancy the heroic at the barricades of battle, but it is hard to imagine such deeds at one’s own threshold. To reach one’s home after a weary trip of 13 leagues, to seek in that home for rest, to hasten to a well-earned welcome, and then to exchange all for a duel to the death, for a trial involving terrible consequences, for a lasting and unfortunate enmity on the part of an adverse community, and all for a simple insult from an impertinent, unarmed, and inoffensive drunken man is impossible of belief. Something very urgent, supremely and absolutely unavoidable urged Work to take the life of Cruz, to wound him to the death. Only in this light is this conduct understood when all the circumstances stated are taken into consideration. Is there any one can positively and undeniably maintain that Cruz did not carry and did not display a knife? Well, then; enough of this doubtful circumstance.

Work should be acquitted. He acted in defense of his life; he acted at least under error, but under the unavoidable idea of imminent peril and of a rapid and serious encounter, wherein Cruz, in conspiracy with Vazquez, Grimaldo, and Guevara, intended to assassinate him. He may afterward, perhaps from the words of the brother of the deceased, have learned that the peril was not so imminent; that it was but a black stick flashing with which he had been threatened; but in a moment of crisis the flash might have seemed a dagger. He afterward saw it was not, but in the moment of clanger he believed it was.

These words of Fernando Cruz so spontaneously written by him carry great meaning, especially in view of the unfavorable opinion held of Work by the other Americans at San José. In this court of Ciudad Victoria it is on record that Work gained a suit against Smith, and the court has seen a letter written from a person at Ciudad Linares a year ago, wherein Smith made mortal threats against Work. In Work’s testimony it appears that he (Work), on coming to San José, was advised at Linares to take care, for he was threatened with death (see page —).

It is also to be remembered that Leon Grimaldo, a few minutes before the encounter with Cruz, said these meaning words to Work: “I have good poison for you,” Perhaps Grimaldo spoke innocently, but could Work have taken a strange and threatening meaning from these words if he had not caught something sinister in the expression of Grimaldo’s countenance? Yes, indeed, Grimaldo had the appearance of being of a mild disposition; but the record tells us how he lifted his hat, and with extreme mildness asked nothing more than that Work should be tied, and the barbarous spectacle be afforded of facing him with the dead. Such acts have been defined as mere nonsense by Señor Saldaña. of San Cárlos. While an effort has been made, Mr. Judge, to invoke the plea of patriotism in this case, there was no true patriotism displayed, and it is to be presumed that those who were capable of such suggestions, in such an hour, had combined against Work. All this may be said in the defense of this client. Be the premeditation in the minds of the actors what it was before the act was committed, the death of Cruz is unfortunate enough, whether we regard that occurrence as affecting the family of Cruz or the family of Work himself.

The words used by Cruz a few minutes before, when Work was passing the house of Antonio Vazquez, are also worthy of being taken into consideration: “If I come out all right in this ride I shall be happy,” it being remembered that Work was expected home from Linares that day. They have afterward tried to explain away the meaning of these words by saying that they referred to a contemplated quarrel of Cruz with Tomás Zapata. It should, however, be remembered that this explanation was furnished by Vazquez and Guevara themselves, when they were giving their testimony touching the passage or appearance of Work in front of Vasquez’ house. When Vasquez and Guevara gave their first testimony they desired to make allusion to the connection these words had with Work; this is significant, for these words could mean nothing at that time unless as they related and referred to Work, though they afterward endeavored to qualify their testimony, applying the signification of that expression to Tomás Zapata. I noticed that Cruz said not one word which referred to Zapata, but the rather it would seem to refer to Work (see page —), for from that point, in front of Vasquez’ house, Cruz had caught sight of Work, who was coming along the road. In the later depositions (page —) of Vazquez, at San Cárlos, he and Guevara did not say one word on an important point, namely, that Work fired the first shot at Vasquez, while in their testimony, given at Ciudad Victoria, Vasquez and Guevara both declared that Work fired at Vasquez. I propose to quote their words under the supposition that the first shot was intended for the witness (Vasquez), though he could well see that when Work raised his arm he stretched toward Cruz (page —). The words of Guevara are these: “That, at the moment of the shooting, witness (Guevara) and Vazquez were approaching,” (note, he says were approaching, not did approach); that is to say, “were approaching, but Vazquez was closer, * * * and therefore Don Roberto fired at him.” Truly this is very mysterious, and would seem to indicate that Vazquez and Guevara contradict each other in their individual statements of some contemplated assault upon Work in company with Cruz. Either one thing or the other: either Vasquez and Guevara were wholly innocent, or else in point of fact they did contemplate an injury against Work and were in conspiracy with Cruz. If the first view obtains, namely, that they were innocent of evil intent, it is very strange that, in his preliminary declaration, Vazquez should have failed to make mention, even by a single word, of that shot so infamously directed at himself by Work. If the second view is taken, then Work had even greater grounds for self-defense than would be at first blush presumed. As the first idea is inadmissible, because of its wholly singular character, we have to limit ourselves to the second proposition. Let us suppose, of course without conceding the point, that either view is extreme, and let us admit a middle course, to wit, that Vazquez had not an evil intention, and that, in fact, Work did fire the first shot at Vazquez; we have, then, just what Fernando Cruz said at the first, namely, that Mr. Work probably thought “something was wrong,” and therefore fired the first shot, either at Cruz or at Vazquez, and it was easy for him to believe or think something was wrong, for Vazquez had a hatchet in his hand. It is well enough for him to say that he was casually carrying the hatchet in his hand. But try and tell that to a man in Work’s critical condition, followed up as he was by Cruz; tell him that Vazquez was carrying that hatchet just by mere accident, and with no intention whatever of injuring Work and protecting Cruz.

All these are considerations of pronouuced weight, and will, I trust, have influence with the judge in deciding the degree of danger which surprised Work when he fired on Cruz. Why then should we not credit Work’s testimony when the very eye-witnesses themselves appear in the light of aggressors, and when there is so great a discrepancy between their depositions? At least the doubt, in all phases of the case, favors the claim that Work here appears as the perpetrator of a homicide executed in proper self-defense, in the most critical situation of imminent peril of the sacrifice of his life. Therefore, in replying to the charge made, my client stated, as appears throughout the evidence, that he (witness) saw that the time had arrived to kill his antagonist, in legitimate self-defense, which comes within the scope of section 8, article 34, of the penal code and the rules to be observed in relation thereto as governing the degrees of crime, set forth also in section 4 of article 201 of the same code.

Therefore, Mr. Judge, I do not doubt that you will adjudge this case, acquitting my client, when such weighty reasons exist for believing, or at least for inclining to a favorable doubt in benefit of Work, whether he did not positively shoot Cruz under the impulse of imperative urgency in the critical condition wherein he found himself, or innocently imagined himself placed. When in danger of becoming a victim, a foreigner is not entitled to more consideration than a Mexican, but on the other hand he is not entitled to less. It might even be said from a judicial stand-point, and because of tolerant friendship toward a foreigner, the circumstance of his being a foreigner should rather operate in his favor justly and honorably as somewhat of an offset to the biassed opinions held toward a foreigner in the mind of witnesses; and which cast of opinions necessarily and inevitably affect the proceedings during the trial, probably without any fault and unwittingly, and without malice aforethought on the part of the witnesses; biassed even by the hidden spring of patriotism. There should also be borne in mind the anxieties suffered by my client during the afternoon and night succeeding the sad occurrence of the death of Cruz, the kind treatment received from the mob, the subsequent sufferings he underwent during the course of the trial proceedings, all of which, while perhaps the inevitable and irremediable consequences resultant thereupon should all weigh in the finding of the court. You are a person of honor, Mr. Judge. On that I now depend. It is within, not foreign to, the interests of justice that you acquit my client. I thus rely upon the distinguished rectitude and true patriotism which guide you as well as upon your well-known honor.

Juan Louis Tercero.

Ciudad Victoria, October 9, 1888.

[Inclosure 3 in No. 30.—Translation.]

evidence.

(1) Testimony of Francisco Guevara Saldaña.

Francisco Guevara Saldana, being present in this court, took the due legal protest, in presence of the prosecuting attorney, to state the truth, to his best ability, in all points upon which he might be questioned. Being interrogated as to his general description, he stated that his name was as above given; that he was forty years of age, a merchant and resident in this place. Being examined on the case of the presumed criminal, Robert C. Work, he said, that on Wednesday, the 29th ultimo, while coming from Linares, and passing through San José, he was summoned by the justice of the peace of that place and by Robert C. Work, who was a prisoner in charge of the aforesaid justice; that on arriving where the parties were, the justice, in the presence of various neighbors who were gathered about the doorway of the house, called on him to give his opinion as to what should be done with the party in custody, for for some time past the people about him had been clamoring that he (Work) be taken to the spot where lay the corpse of the deceased Francisco Cruz, and be tied thereto; that he (witness) seeing the people so excited, and that what they required of the justice was rather a folly, and that the people intended to kill the prisoner after tying him to the corpse, for he then would be wholly defenseless, stated to the justice that what the people wanted was a custom now obsolete; that the prisoner was now under the safe conduct of the authorities, and that in no case should the justice accede to such a request; that in so doing he would be assuming a serious responsibility; that, on the contrary, he should order the guard to take care of the prisoner, and even use their arms in case the people should insist in their pretensions to seize the prisoner by force, and that the justice could count upon his aid and that of Victorio Jeran, who was with him, as well as two servants who were with him, for they would all remain there in the ranch to assist him in necessary event; that then the deponent left the place to go down to the house of Mr. Frank T. Spar, whither he was soon followed by the justice; that on arrival there he (the justice) indicated that they should go and see the corpse, as they then did; that on reaching the place where the mourners were gathered with other persons, the latter insisted in begging that they be allowed to lift the body, but as the justice feared to assume any responsibility, that he (the deponent) being in doubt as to whether the authorities had been advised, agreed that the body should be lifted and carried into the house, and that he would assume the responsibility; that, as can be considered, this decision was arrived at by the deponent in order to quiet the people, and also because he believed the authorities could make the post mortem examination just as well in the house as at the spot where the deceased fell, for the latter was quite dead, and his slayer had confessed. The deponent further testified that upon his arrival at the house the justice told him and Jeran that some of the neighbors had vilely insulted him, which could be readily noticed, due to the commotion among the people, and further, that right before them he surprised Leon Grimaldo by his bad conduct. Touching the matter of the conflagration he saw nothing, but he understood, from a general rumor, that they had fired the shrub-hedge round the dwelling in which the Work family was living, and that he only knew that the family left the house on Wednesday night, for he saw them in the house of the justice on Thursday morning. Witness alleged that the foregoing was the truth, and did ratify and affirm the same, under the protest taken to speak the truth, signing the same with me, the subscribing mayor and witnesses.

Bérnabe López.

Franco. Guevara y Saldaña.

Dámazo Olivares.

Aa. Vicente Callejas.

Marcellino Puente.

Forthwith and with the intent of ratifying the testimony which Francisco Guevara Saldana had given in the presence of the prosecuting attorney, and after having had the same read over to him, and having reiterated the legal protest, deponent added that the foregoing testimony was such as he had already rendered, and that he had nothing to add or to take away therefrom; that therefore he affirmed and ratified the same with me, the undersigned, mayor and witnesses.

Bérnabe López.

Franco. Guevara y Saldaña.

Dámazo Olivares.

Vicente Callejas.

Marcellino Puente.

(2) Testimony of Victorio Jeran.

On the same day and date Victorio Jeran, being present in this court, took the due legal protest in presence of the prosecuting attorney to state the truth, to the best of his ability, in all points upon which he might be questioned. Being asked for the general description, he stated that his name was as above given; that he was fifty-seven years of age; married; a merchant and resident in this town.

Being asked, he said: As in reply to the question touching the case of the presumably guilty party, Robert C. Work, that coming from Linares to this place, and while passing through San José on the 29th of February, about 4 o’clock in the afternoon, on arriving in front of the house of the justice of the peace, the latter called him and Francisco Guevara Saldana, and asked them what they had better do; that the brother of the deceased, accompanied by various people, wanted to get the prisoner and take him to the place where the body lay, in order to tie him there; that the deponent and his companions spoke to the brother of the deceased, telling him that the prisoner was in the hands of the authorities, and that what they wanted could not be allowed; that they had better go and take care of the corpse; and that he did not hear what words were exchanged by the brother of the deceased and the prisoner, but that he saw him give him an abrazo^* of satisfaction and start off for the place where the body lay; that they remained there a long time to see whether it could be arranged at the same time to carry the body into the house of the brother of the dead man; that he and Saldaña, at the instance of the justice, went and told the mourners that they could carry the corpse to the house, which was forthwith done; and that, at the request of the justice, they remained at San José until the following morning for fear the people would make another attempt at the prisoner: and that in the morning they all started over to this place. Deponent further testified that he knew nothing of the burned hedge adjoining the house of Roberto, but about 1 o’clock in the morning the justice and some other people told him that during the night the hedge had been fired; that he (deponent) does not remember the names of the persons who went over to put out the fire; that he was also told by them that after having put out the fire, they saw a person close by the place where it originated. Deponent further adds that the foregoing is the truth, affirming and ratifying the same with me, the mayor, etc.

Bérnabe López.

Victorio Jeran.

Dámazo Olivares.

Antonio Alvarez.

Marcellino Puente.

(3) Testimony of Francisco Peña.

On the same day and date Francisco Peña, being duly summoned, and having taken the due legal protest, in presence of the prosecuting attorney, to state the truth to the best of his ability in all points, and being questioned as to his general description, replied that he was as above named; that he was thirty years of age, unmarried, a journeyman laborer by trade, and living in San Miguel.

Being examined under the summons served on him on the 8th instant at the request of the prisoner, he said that while in the house of Leon Grimaldo, I went out and while crossing the stone path of the house I heard the steps of a horse, and turning round I saw it was Don Roberto who was on his horse and going along the road toward his house; that the said person, seeing me from that distance, or about 30 paces, saluted me, “Adios! adios!”^* and kept right on down the road. I went to the house of Antonio Vazquez. While approaching the house I saw the said Vazquez jump over the hedge of his plot with a hatchet in his hand with which he was cutting wood. Seeing that the aforesaid Vazquez was hurrying to get outside the hedge I also made haste and saw that he was following close after Fernando Cruz, calling to him to let him catch up with him, a distance of about 25 paces from me; and then I heard Francisco Cruz speak to Don Roberto twice. There being at that point a dip in the road, while going down the hill Don Roberto stopped his horse across the road and, with his pistol in his hand, said to Cruz not to come near him for he would give him a bullet; that then Don Roberto went along the road; after going a short distance he again stopped and repeated the same words to Cruz, telling him not to come close to him for he would shoot him; that Cruz paid no attention and went right on towards Work, who fired at him, Cruz not falling till the second shot. Deponent added that the foregoing is all that he has to say touching the matter. After his testimony had been read to him he declared it to be identical with what he had stated, affirming and ratifying the same with me, the undersigned mayor, prosecuting attorney, and witnesses.

We attest:

Bérnabe Lopez.

Silverio Ramirez.

Francisco Peña.

Vicente Callejas.

Marcellino Puente.

(4) Testimony of Antonio de la Fuente.

On the same day and date Antonio de la Fuente, being duly summoned, and having taken the due legal protest, in the presence of the representative of the prosecuting attorney, to state the truth to his best ability and knowledge, however questioned, in reply as to his general description, he stated that he was as above-named; that he was fifty-three years of age; a married man; a farmer by profession, and residing in San José.

Being examined in accordance with the interrogatory presented by the prisoner on the 8th of the current month, he said: It was true that Robert C. Work went to him to request protection for himself and his family; and that he then sent for Francisco Cruz and presented to him the complaint of Don Roberto; that Cruz replied that he had arranged matters with Don Francisco S. Spares, and that so far as he was concerned he had nothing more to arrange with Mr. Work, that while he (deponent) was going along to the house of Robert C. Work to convey to him a summons from the court he was hailed by Mr. S. Spares, who asked him whether he was going to Work’s house; that the deponent replied that he was; that he had an order to deliver to him as already referred to; that then Mr. S. Spares begged him to take a note to Mr. Work; that the deponent consented; that after receiving the note deponent went on to carry out the delivery of the summons, after which he handed to Mr. Work the message of Mr. Spares which was written in pencil. Deponent averred this to be all he could state on this point. Having had this testimony read to him he affirmed and ratified, etc.

Bérnabe López,

Dámazo Olivares.

Antonio de la Fuente.

Marcellino Puente.

Vicente Callejas.

(5) Testimony of Antonio Maydon.

On the same day and date Antonio Maydon, being duly summoned, and having taken the legal protest, in the presence of the prosecuting attorney, to state the truth touching what he might know, and whereof he might be questioned, replied as to hi general description to be as above named, fifty-six years of age, married, a farm laborer and living in Marmolejas.

Being examined according to the tenor of the interrogatory presented on the 8th instant by the prisoner, Work, he said that he himself accompanied Mr. Work to the court of first instance of this municipality, which court was then in charge of the alcalde,^* first substitute, Manuel de la Fuente, to whom he expressed his complaint, showing him the card of challenge or threat which the American, Fran’co S. Spares had sent him, together with a translation thereof made by Fran’co Porfirio Rocha; that the alcalde paid no attention to the complaint; that Mr. Work seeing the way in which his complaint was disregarded took up the two documents and put them in his pocket-book and the two came out of the court-room.

In reply to the second question he can state, as an eye-witness, that in 1888, while in the house of Julio Castillo, a young man named Frederick came in with a note in Spanish from his employer, Simon G. Smith, the note saying that the Americans, Louis W. Hastings, Frank S. Spares, John William, and Simon G. Smith, who signed the petition, had requested the expulsion of Work from the mining district of San José, and that, in order to give greater force to their petition, they proposed to secure the signatures of all the neighbors in the district. Deponent added that the foregoing was all he could state with regard to the matter. His testimony being read to him, he declared it to be identical with what he had said, and he affirmed and ratified the same, signing with me, the alcalde,^† the prosecuting attorney, and the witnesses.

We attest:

Bérnabe López.

Dámazo Olivares.

Antonio Maydon.

Vicente Callejas.

Marcellino Puente.

(6) Testimony of Marcellino Hernandez.

Forthwith, on the same day and date, Marcellino Hernandez, being duly summoned, and having taken the due legal protest, in the presence of the prosecuting attorney, to speak the truth in respect to all that he might know and regarding which he might be questioned, stated, as far as regards his general description, that he was as above named, forty-four years of age, married, a laborer, and living in San José.

Being examined as to the points set forth in the interrogatory proposed by Work, he replied: That it was true that in the past year—the month he forgets—Francisco Cruz went to his house, about 12 o’clock at night, in a drunken condition, with a pistol in his hand; that the deponent had a cup of coffee made for him; that Cruz entered the house and began with insults and hard expressions, and struck a box with the pistol he was carrying. The deponent further averred that, not wishing to submit to any more annoyances, he complained to the justice and to the first judge, Felipe Valdez, who happened to be in that town. Being asked whether Cruz fired at him two shots, he replied that Cruz did fire two shots, but not in his house nor at him; that it occurred at the stream. Being asked whether Cruz had made out to lose the pistol when the authorities demanded it from him, and that, finally, when the authorities had urged him, he had delivered up the weapon, he replied that he did not know whether Cruz had pretended to lose the pistol or that he had afterwards delivered it up. Deponent further added that the foregoing is all that he can state touching the particulars as propounded by Work. This testimony being read to him he stated that it was correct throughout; and he affirmed and ratified the same, but did not sign, as he could not write. This I, the alcalde, did for him, in company with the prosecuting attorney and witnesses.

We attest:

Bérnabe López.

Silverio Ramirez.

Dámazo Olivares.

Vicente Callejas.

Marcellino Puente.

(7) Testimony of Antonio Alvarez.

On the same day and date Antonio Alvarez, being duly summoned, took the due legal protest in the presence of the prosecuting attorney, to state the truth to his best knowledge and belief as far as questioned. Replying as to his general description, he said he was as above named; fifty-eight years of age; widower; a clerk by profession, and living in this place.

Being examined under the interrogatory propounded by the prisoner Work he replied: Firstly, that while engaged in his work as clerk of the first court, Mr. Robert C. Work presented himself with a letter written in pencil to the first judge (substitute); the paper purporting, according to the translation of Francisco Porfirio Rocha, to be a threat made against Mr. Robert C. Work by Mr. Frank S. Spares. Secondly, the deponent testified that while in San José in 1685, and living in the house of his uncle, Andre’s de la Paz, his compadre,^* Cárlos Delgado, came there with a paper addressed to Mr. Paz, and with a request that I should read it to him to see whether he would consent to signing it. That Delgado asked the deponent what he thought of that paper; that after I had read it for the purpose of informing Señor Paz as to its contents, I told Senor Delgado that the paper was as good as nothing; he asked why, and I replied that every document without date was necessarily null and void, on the one hand; and on the other hand, addressing myself to Senor Delgado, the deponent further added that if Señor Work was really trespassing on the rights of mines belonging to Mr. Archibald and his partners, that was no reason why Mr. Work should be deprived of all connection with the mines and be driven from the camps of San José; that Delgado answered that the document was drawn up by an American lawyer, and the other Americans had all signed it, but that he himself was unable to prove the charges made against Don Roberto. The deponent said: “Well, if you can not prove the charge the rest of the people will say the same;” that it little matters to us whether one American has more than another; that what we would like to see would be that four or five of the wealthiest should come and throw down their money and give us all a chance to get money ourselves without so much trouble and sacrifice; the said paper was, so far, only signed by Antonio Vazquez. The deponent having inquired why the Americans had not first signed, Señor Delgado said they would after the signatures of all the other neighbors had been secured.

Deponent stated in conclusion, and having heard his testimony read, that the same was true and correct throughout, affirming and ratifying it in accordance with the protest he had taken, and signing the same in presence of myself, the judge, prosecuting attorney, and witnesses.

We attest:

Bérnabe López.

Dámazo Olivares.

Antonio Alvarez.

Vicente Callejas.

Marcellino Puente.

(8) Testimony of Francisco Robledo.

On this same date, Francisco Robledo, being duly summoned, and under the legal protest taken in the presence of the prosecuting attorney to state the truth, to his best knowledge, in as far as he might be questioned, replied, as to his general description, that he was as above named, twenty-three years of age, unmarried, a servant, born at Real de Guadalajara in San Luis Potosi, and living for one year past at San José.

Being examined in accordance with the summons served upon him, by request of Hinocente de la Paz, on his testimony, he stated that he was loading up a mule on the side of the road in front of the house of the prisoner, Roberto, about 400 paces away; that he heard voices down below in the gulch; that he (deponent) jumped up on a log to see who was talking down there; that he then saw the prisoner, with his pistol in his hand; that he (Work) shot at Cruz twice; and the deponent then saw Cruz fall to the ground; that the deponent then ran towards the house of his master, Roberto, before reaching which he (deponent) met the other servant who had started to find witness; that upon reaching the house Mr. Work said: “I have had the bad fortune to kill Francisco Cruz. Run to the house of the justice and advise him.” That he (deponent) gave the advice, and on his return shortly after Fernando Cruz appeared there at the house with a carbine just as I was engaged in giving feed to Don Roberto’s horse. Fernando said: “Look here, friend, bring that horse here;” that deponent refused, saying he could not do so; that just then the justice arrived and entered the house; I do not know what he said in there to Don Roberto; that shortly after the justice came out of the house and said he wanted to go where the body lay; directing Pilar Sanchez and Abundio Aleman, with Felipe Vega, to effect the arrest of Don Roberto; that when the prisoner had started for the house of the justice, on the roadway Fernando Cruz and Leon Grimaldo came up and asked that the prisoner be taken where the body lay; the justice replied that it did not suit him to take him there; that, about 5 o’clock in the afternoon, while the deponent was at the house of the justice, together with the prisoner, there appeared Gabriel Ibarra, Antonio Vazquez, Tomás Barragan and Romulo Rodriguez, insisting for a second time that the prisoner should be carried to the place where the corpse was exposed; but the justice repeated that he could not consent thereto, nor could he allow them to bother the prisoner, or to over-run his house; that just then Victorio Jerán and Francisco Guevara Saldaña were passing; Don Roberto asked deponent to call those two men, requesting that they be kind enough to come where he was, which they did. Being asked whether, while on the road with the prisoner to the house of the justice, Fernando Cruz and Leon Grimaldo came up with or without weapons, he replied: that he could not see whether they carried any arms. Being asked whether Gabriel Ibarra, Antonio Vazquez, Tomás Barragan, and Romulo Rodriguez were armed when they came to the house of the justice, he replied they were not. Deponent affirmed and ratified the foregoing testimony as taken under this protest to state the truth; not signing the same, being unable to write; his name being signed for him.

We attest:

Bérnabe López,

Dámazo Olivares,

Marcelino Puente,

Vicente Callejas.

(9) Testimony of Francisco Rocha.

On the same day Francisco Rocha being present in the court, being duly summoned and having taken the due legal protest in presence of the prosecuting attorney to state the truth to his best knowledge, in reply to all questions addressed to him replied, as to his general description, that he was as hereinbefore named, a married man, fifty-three years of age, a teacher in the first grade school, and living in this place.

Being asked whether it was true that he had read a paper of Mr. Work’s, whether he could recall its contents, etc., he replied: That on the 17th of February last the aforesaid Work with the first judge (substitute) had asked him to put into English, from Spanish, a paper written with pencil, which was literally as follows:

“San José, February 17.

“Mr. Robert C. Work:

“If this notice is some of your business, summoning me to San Cárlos, I will now tell you clearly that it will be a bad business for you; for I have often told you that if you enter into a quarrel with me, in any manner, I will get square with you outside of the court-room.

“Frank Spare.”

Deponent further states that, in the translation, he wrote the word “negocio”^* in large letters, for it was so in the original note; that after making the translation deponent went with Work and with Antonio Maydon to the court; that when there Work called the attention of the first (substitute) judge to the fact that that was a mortal threat, and equivalent to a challenge; and that he thus called to it the attention of the authorities, in order to save himself from future responsibility for consequences, should he be attacked. Mr. Maydon, added the deponent, said also that these people might think Work was a coward, but they were mistaken; that he was a man who could place all the six bullets of his revolver into any; but that he was an honest man, hard working, a man of family, and would not go to such an extreme unless it were positively necessary. Deponent then withdrew from the court-room, Maydon and Work remaining there. He was afterwards informed by them that the judge did not take any steps in the matter. Deponent adds that all that transpired then in the court-room was witnessed by Mr. Bérnabe López,^* also by Antonio Alvarez, inspector of the courts, and by Marcelino Puente, clerk of court of second instance. The foregoing he claims to be all that he has to say in the matter. His testimony being read to him, he affirmed and ratified the same, as under his protest, signing the same with me, the undersigned, judge, prosecuting attorney, and attending witnesses.

We attest:

Bérnabe López.

Dámazo Olivares.

F. P. Rocha.

Vicente Callejas.

Marcelino Puente.

(10) Testimony of Marcelino Puente.

On the same day and date, Marcelino Puente being present in this court under summons, and having taken the due legal protest in presence of the prosecuting attorney to state the truth to his best knowledge, in so far as he might be questioned; and being interrogated as to his general description, replied: That he was as above named, thirty-five years of age, a married man, a clerk, and living in this town. Being questioned, he replied that he saw and heard Mr. Work present to the first (substitute) judge a paper, written with pencil, saying that he did hear Francisco Rocha tell the judge that the paper contained a threat made by Frank S. Spare against Robert C. Work; and that the deponent noticed that the judge paid no attention to the plea. Deponent, in conclusion, stated that the foregoing is his true and correct statement; and after it was read to him he ratified and confirmed it, as under the protest taken, signing the same with the undersigned judge, the prosecuting attorney, and attendant witnesses.

We attest:

Bérnabe López.

Marcelino Puente.

Dámazo Olivares.

Vicente Callejas.

Próspero Ramirez.

(11) Testimony of Antonio de la Fuente.

At the town of San Cárlos, on the 10th day of the month of March, 1888, before me, Mr. Telésforo Valdez, first judge of this town, and attending witnesses, under the law appeared Antonio de la Fuente, prosecuting attorney of the mining town of San José, in this district, under due summons, taking a solemn legal protest to the effect that he would state the truth to the best of his knowledge. Being interrogated as to the points set forth by Mr. Robert C. Work in his former writing, he first stated his general description: That he was as above named, fifty-three years of age, a married man, a farmer, born in this place, and living for eight years at the ranche of San José. Being asked as to the first point, he said that so far as the general description of Robert C. Work was concerned, he had known him for seven years, etc.

Being questioned touching the second point, he said: That since he has known Work he has always known him to be always engaged in mining business at that place.

Being interrogated as to the third point, he said that since he has known Work he has never known him to be vicious, or badly employed, or quarrelsome, vagabond, nor a bad citizen, nor much less to be a nuisance to society; but on the contrary, he has known him to be a worker in the business of mines, a good man, and without vices.

His testimony being read to him he declared it to be a true and correct transcript thereof, and affirmed and ratified the same, as under his protest, signing the same with the judge and attending witnesses.

We attest:

Telésforo Valdez.

Antonio de la Fuente.

Dámazo Olivares.

Antonio Alvarez.

Marcellino Puente.

(11) Testimony of Manuel Narvaez.

On the same day and date, Manuel Narvaez being present as a witness, summoned duly, was recognized by the court, and in the presence Dámazo Olivares, first solicitor, took the due legal protest to state the truth in all points to his best knowledge and belief, in as far as he might be questioned, touching the points set forth in the prior interrogatory of Robert C. Work. Being questioned as to his general description, he stated that he was as above named, thirty-seven years of age, unmarried by civil state, a merchant, born in and residing at this place.

Being asked, first, he replied that he knew him by sight, etc.

Being asked, second, he replied that the said party had all the time been engaged in mining.

Being asked, third, he said that during all the time he has known Work he, deponent, never knew of him as being quarrelsome, vicious, idle, nor that he was an evil citizen or a nuisance to society.

His testimony having been read to him, he confirmed it throughout as being correct and true, affirming and ratifying the same, under his protest to state the truth, and signing the same, with me the judge, with the subscribing witnesses.

We attest:

Telésforo Valdez.

Manuel Narvaez.

Dámazo Olivares.

Antonio Alvarez.

Marcellino Puente.

(12) Testimony of Silverio Ramirez.

On the same day and date, Silverio Ramirez, whom I certify to know, in presence of the prosecuting attorney took the due legal protest to state the truth in as far as he knew the circumstances, and so far as he were questioned in relation thereto, as under the interrogatory propounded by Robert C. Work in his prior statement. Being questioned as to his general description, he said he was as above named: fifty years of age; married; a farm laborer; born and living in this place.

Being asked, first, he replied that he had known Mr. Robert C. Work about five years, etc., etc.,

Being asked as to the second point, he replied that he had lived, during the time he had known him, in the mining district of San José in this district, and had been engaged in mining.

Touching the third point he said that during the time that he had known him he had never known him to be quarrelsome, nor had he displayed any vice, nor bad conduct; nor, much less, was he in any wise a nuisance to society.

This, his foregoing testimony, having been read to him, he confirmed it as a true and correct presentation of his evidence, affirming and ratifying the same, under his legal protest taken before; and did sign the same with me, the undersigned judge and the prosecuting attorney, and the witnesses present, etc.

We attest:

Felipe Valdez.

Dámazo Olivarse.

Marcellino Puente.

Antonio Alvarez.

(13) Testimony of Francisco Robledo.

On the 19th of the present month, Francisco Robledo, a witness presented in behalf of the accused Robert C. Work, took the due legal protest, in presence of the president of the city council, as provided in preceding documents; and his testimony, taken on the 12th of last July, was amplified at the request of the accused. Being asked to state with more precision the distance he stood off when Francisco Cruz assaulted Robert C. Work, he replied that, on the day of the occurrence, about 1 o’clock in the afternoon, he (deponent) was on the hill, cutting and loading wood on a donkey; that he saw very clearly when Don Roberto fired the two shots at Francisco Cruz, who was following very close after him; that the place of the shooting was distant from where he stood, could not have exceeded 100 paces, but he is unable to say very affirmatively; the above would be the distance, a little more or less.

With the foregoing he (deponent) affirmed and ratified his written testimony as read to him; not signing, as he could not write.

We attest:

• Antonio Flores.
• Manuel Gonzalez.
• Antonio Valdez.
• John Sottil.

[Inclosure 4 in No. 30.—Translation.]

(1) Testimony of Antonio Vazquez.

Antonio Vazquez being present, in compliance with the preceding order, took the solemn protest to furnish his testimony, and in response to his general description, stated that he was as above named, twenty-nine years of age, married, a farmer by trade, born in this district, and living at San José.

Being asked where he was on the 29th day of February, wherein he was engaged on that day, and what he knew touching the encounter between Robert C. Work and Francisco Cruz, he said: That he was in his house which was before property of Mr. Frank S. Spares, gathering wood, when Francisco Cruz, accompanied by Pascual Guevara, came in, and called to the deponent to come over to the fence and take a drink from a bottle of mescal wine which he had in his hand (Cruz’); that the deponent excused himself, saying that he was suffering from a headache; that Cruz then said that I (deponent) did not wish to drink with him because I did not want to be his friend; to which I replied that in order to prove that I was his friend I would give him out of my pocket; that Cruz then said that if he was successful in that day’s ride, he would be happy; that just then Don Roberto was seen coming on horseback from Linares; that Francisco Cruz then left the fence where he had been talking to the deponent, and asked Don Roberto for a peseta^* in order to hacer las horas;^† that Don Roberto replied that he did not have any; that Cruz added that he must have one; that Don Roberto then urged his horse to walk; that Don Roberto then drew his pistol and said to Cruz to get away and not to stand in front of him; that deponent who was behind Don Roberto spoke to Cruz telling him to come back, and Don Roberto told him (deponent) to take Cruz away; that deponent then jumped the fence to catch Cruz; but did not reach him (Cruz) until Don Roberto had fired two shots at him and he lay on the ground; that immediately the deponent went off to advise the justice of the peace and the relatives of the deceased.

Being asked to state what arms Francisco Cruz carried when he came up to him (deponent), he replied that he did not see any arms upon him, nothing save a whip.

Being asked whether Pascual Guevara was armed, and whether he accompanied Cruz up to the place of the occurrence, he replied that Pascual had no weapons on his person, and that he (Guevara) remained along-side the deponent until the latter jumped the fence to catch Cruz and then Pascual followed him up to the place where they found the corpse lying, a distance of about 20 paces.

Being asked what if any offensive words passed between the two men, he answered that there were none.

Being asked what else he knew touching the matter, he replied, that when the justice went to the house of Don Roberto to effect his arrest he was accompanied by four armed men; that these he left at the place where the body lay, going up to the house alone; that when at the house he sent for the men whom he had left with the corpse in order to escort the prisoner to his house (house of the justice); that after the party had reached the house of the justice he (deponent) was sent for to take care of the corpse; that he met Tomás Barragan, Gabriel Ibarra, Fernando Cruz, Romulo Rodriguez and Tiburcio Huertas, whose names he can recall among others, who went up to the house of the justice to ask him to have the prisoner taken where the corpse lay and remain there while advice be sent to the authorities.

Being asked whether he had aught else to add, he replied that he had not, and that the foregoing testimony, as read over to him, was true and correct in all particulars, affirming and ratifying it and signing the same with me, the judge, and attending witnesses.

We attest:

Bérnabe López.

Antonio Vazquez.

Marcellino Puente.

(2) Testimony of Pascual Guevara.

Pascual Guevara, a witness cited in compliance with the foregoing summons, took the solemn protest to state the truth, to his best knowledge, in as far as he might be questioned; and, being asked for his general description, replied that he was as above named; twenty-one years of age, unmarried, a farm laborer, born at Jiminez, and living for the past six years at San José.

Being asked to state where he was on the 29th day of February last, in what he was engaged on that day, and in whose company he was, he replied, that on that day he was in his house up till about 8 o’clock in the morning, when Francisco Cruz came in and asked him to take a turn or two with him in the ranche, and they afterwards went towards a small garden that Cruz had; that when they got in front of the house of Antonio Vazquez, he (Cruz) wanted to get him to drink with him; that Vazquez refused, saying he did not want to take any thing; that Cruz then said if he was successful in that day’s ride, he would be happy; that they were there a little while and and saw Don Roberto coming on horseback from Linares; that when they reached the place where they were Cruz left the fence, saying: “Wait a moment here for me, I want to speak to Don Roberto; “that he (Cruz) called out to Don Roberto that he wanted a word with him, at the same time advancing towards the horse’s bridle; that Don Roberto spurred his horse on to get home; that Cruz then asked him for a peseta to go and get a drink; that Don Roberto paid him no attention, but kept spurring on his horse. Cruz following him up with the same request; the deponent again called out to Cruz to come back, but Cruz only answered to wait for him a little while, that he wanted to speak to Don Roberto; that while starting down a decline, Cruz hurried to catch up with Don Roberto; that the latter stopped his horse across the road and fired a shot at Cruz which wounded him; he then fired again, whereupon Ortiz fell to the ground, and Don Roberto went on to his house.

Being asked what arms Francisco Cruz carried and what offensive words he had spoken, he (deponent) said he saw no arms only a whip, which he himself had lent to Cruz, who was going to saddle a horse and come to this town with some things; that witness went and advised Fernando Cruz that his brother was dead; furthermore deponent did not hear any offensive words.

Being asked whether he had aught else to state, he said he knew nothing more than he had stated concerning what had occurred. His testimony being read to him, he averred it to be identical to what he had just expounded, affirming and ratifying the same, but not signing, as he could not write, which was done for him by the judge and attending witnesses.

We attest:

Bérnabe López.

Antonio Alvarez.

Marcellino Puente.

(3) Testimony of Antonio de la Fuente.

Antonio de la Fuente being present (justice and prosecuting attorney at San José).

I certify that I am acquainted with him. Deponent took the solemn protest to state the truth to his best knowledge, or understanding, touching the circumstances which occurred on the 29th of the past month, between Robert C. Work and Francisco Cruz. Deponent further stated that he is in charge of the interests of justice in this district; that about 1 o’clock on the afternoon of the 29th ultimo, Gerónimo Ibarra, son of Gabriel Ibarra, came and advised him that Don Roberto had killed Francisco Cruz; that forthwith, accompanied by the citizens Pilar Sanchez, Felipe Vega, Abundio Aleman, and Inocente de la Paz, he started over to make the necessary post mortem examination; that he went on alone to the house of Don Roberto to see him; that he (Don Roberto) received him; that the wife and daughter of Don Roberto were crying; that the deponent advised Work that he had come to place him under arrest; that Don Roberto said he surrendered and was at his orders, handing him over forthwith a 44-caliber pistol—a six-shooter; that Don Roberto manifested fear of assassination. So he (deponent) sent for the four men whom he had left behind to escort Work to his (deponent’s) house; that notice was at once sent into the court of second instance, from which court immediate instructions arrived to take up the corpse and to bring thither Mr. Work under secure guard; that while bringing the prisoner along, and when we reached a place in front of the house of Antonio Vazquez, he was attacked by Leon Grimaldo and Antonio Vazquez, the father of Francisco Cruz, Fernando of the same name, Pascual Guevara, and a lot of women, among them the wife of the deceased; Grimaldo saying to deponent that the prisoner be taken where the corpse lay, and tied there; that deponent paid no attention to the people and finally reached the house; that at sunset the same crowd returned to deponent’s house, accompanied by Tomás Vazquez, Rómulo Rodriguez and Gabriel Ibarra, who led the crowd, a lot of boys also joining them; that I did not note who were in the crowd, for there seemed great excitement to get at the prisoner, for what purpose I did not at first understand.

Being asked what arms he saw these people carry and the language they used when they came into the house, he replied that he did not see what arms they carried; that the crowd asked him if he was not a patriotic man; that whether I (witness) could see the blood of a Mexican shed by a Gringo^* Cabron^†; that Gabriel (Ibarra) further said that if he had committed a like crime and they went to arrest him, he (deponent) would be the first to fall by his (Ibarra’s) bullet; that deponent at once ran the people out of his house; that when leaving, Gabriel said to Work: “Pray to God that you may not be set at liberty, for I will kill you.”

Being asked whether he had anything else to add, he replied that he had nothing more to say than to request that the authorities should proceed against those who were guilty in the premises.

His testimony being read to him he confirmed the same as above given, affirming and ratifying it and signing it with me, the undersigned judge and witnesses.

We attest:

Bérnabe Lopéz.

Antonio de la Fuente,

Antonio Alvarez,

Marcellino Puente.

cross-examination.

On the same date the witnesses, Antonio Vazquez and Pascual Guevara being present in this court for the purpose of comparing a discrepancy in their depositions, to wit; while Vazquez says that Cruz did not advance on to Work nor much hang on his (horse’s) neck, Guevara states the contrary, that is to say, that he (Cruz) went up to Work, gave him his hand, and, with his hat in his hand, asked him for a peseta: Guevara not remembering to have plainly seen Cruz hang on the horse’s neck, doubt less because he was on the other side of the hillside or fence, and could not see everything well, while Vazquez was right at Cruz’ side and near Work The discrepancy having been thus explained this document was signed, etc.

José Quintanilla.

Antonio Vazquez.

Antonio Valdez,

Jesus Maria Alfaro.

cross-examination.

On the same day and date the previously mentioned witnesses, Pascual Guevara and Antonio Vazquez and the accused, Robert Work, being present, for the purpose of conducting a comparison of evidence to clear up the discrepancies between their evidence, and under the requisite legal formula, the dissimilarity in testimony was called to their attention, to wit:

• First. That the deceased, Cruz, carried no weapons save a whip.
• Second. That it is not true that he drew Work’s pistol from its holster.
• Third. That the road is all right, and there are no obstacles for travel.
• Fourth. That Work was not detained by Cruz.
• Fifth. That all that Cruz said to Work was that that he give him a peseta; not that he would kill if he did not do so.
• Sixth. That Work, they say, said he fired the two shots at Cruz, while the accused makes a statement wholly different, i. e.: First, that Cruz had a pistol in one hand and a knife in the other; second, that when Cruz hung on the neck of Work’s horse he (Cruz) drew out Work’s pistol from its holster, but put it back when Work interfered; third, that on account of the steepness of the road he went the faster down the hill, and therefore shot at Cruz; fourth, that on the road he was detained by two men, one of whom had his hat drawn over his eyes; fifth, that Cruz called out to them that he would pay them well if they killed him; sixth, that he fired not one shot, but both shots at Cruz.

The foregoing discrepancies were presented to the witnesses, and after a prolonged talk, during which the witnesses (Vazquez and Guevara), point by point, made observations on the above, each one confirmed and ratified their prior testimony; Vazquez and Guevara stating with regard to the sixth point that they were not sure whether the horse went on because he got frightened, and whether really Work did stop him. During this discussion both the witnesses endeavored in detail to confirm their prior testimony.

Work claimed that Vazquez could not have clearly seen what transpired, as the stone fence was high.

This ended these proceedings; those present, who could, signing.

José Quintanilla,

Antonio Vazquez,

Antonio Valdez,

J. M. Alfaro.

(4) Testimony of Antonio de la Fuente.

San Cárlos, July 17, 1888.

Antonio de la Fuente, being present in the court under summons for the purpose of amplifying his testimony, took the due legal protest to state the truth, and did so in presence of the justice; after having repeated his general description, he said: That he was, as above named, fifty-three years of age, a laborer, and residing in this place, San José.

Being examined under the court order of May 2, of this year, he replied: That on the occasion that Don Roberto went to him to request protection he did not particularly notice that he and the others had had any dispute, bat that he did notice that Cruz carried a dagger, but not a pistol, unless when he (deponent) took it off and gave it (the dagger) to the judge, Valdez. That the foregoing is all that he has to say touching these particulars, and he affirmed and ratified the same, signing with me, the judge, etc.

We attest:

Bérnabe López.

Antonio de la Fuente.

Vicente Gallegos.

Silverio Ramirez.

Marcellino Puente.

(5) Sentence of Judge Velazquez.

San Cárlos, January 26, 1889.

Having seen these criminal proceedings begun in the court of second instance of this place, and continued by the court of first instance of the first judicial district, which referred the case to me in compliance with the third article of the law of September 24, of last year; proceedings begun and had against Robert C. Work, fifty years of age, married, a miner, native of the United, States of America, and living in this place at the camp (mining) of San José, under charge of homicide perpetrated by him with a fire-arm in the person Francisco Cruz, at 1 o’clock on the afternoon of February 29, of last year (1888); also the documents bearing upon the degree of responsibility weighing upon the accused; the confession of charges; the presentation for the defense made by the attorney appointed by the prisoner; the summons for sentence, etc.

It appears, first: That on the 29th day of February, of last year, Mr. Robert C. Work was placed in prison, he having been the perpetrator of the aforesaid homicide, having remained nine days in the jail and eleven days in the house of Sr. Francisco Guevara Saldaña, with permission to go out to the streets to attend to his private business affairs: that he was afterwards fourteen days imprisoned in the capital of the State under the same conditions.

It appears, second: That, according to the depositions of the witnesses and of the accused himself, it was he who, with the weapon, which has appeared in evidence, inflicted a wound upon Francisco Cruz, from which the latter immediately expired; the said depositions forming full and complete evidence so far against the defendant.

It appears, third: That it is proven that on the 29th of February, of last year, Fraucisco Cruz was walking along in a state of intoxication at the time that Sr. Work was arriving from Linares at San José; that he, Cruz, followed Work asking him for a peseta, and thus followed him towards the house of the accused; that in the road there was a decline with a gully about 3 varas and ¼ wide.

It appears, fourth: That as the defendant says in his testimony, on arriving at San José two men assaulted him; that one of these men was Francisco Cruz, and the other he did not know, for he had his hat down over his eyes; that Cruz had a pistol in one hand and in the other a dagger; while Francisco Robledo, the only witness who says anything about it. says that the deceased had in his hand a small rod that flashed, and was found afterwards in the hand of the deceased; that the said arms, according to Work, as well as the pistol which he said was carried by Cruz, could have been taken away when the corpse was left alone with the relatives.

It appears, fifth: That Work insists that Cruz threw himself on to him, took his pistol from his (Work’s) person, which he recovered later on; that continuing along the road Cruz followed him, and as he advanced on him a second time he fired first at his feet to stop him; that as this did not stop him he fired again, the shot that killed him.

It appears, sixth: That the evidence discloses that Cruz had a pistol; but the witnesses who were at the place where the corpse lay deny that he had any arm whatsoever, nothing save a whip.

It appears, seventh: That the father of the deceased does not figure in the prosecution, and forgave the injury, as is seen in the evidence.

Therefore, considering, first: That the existence of crime constituting homicide as perpetrated in the person of Francisco Cruz is sufficiently proven with the judicial examination and the post-mortem examination of the medical experts, Rafael Gómez, McElroy, and Progedis R. Balboa, as well as the testimony of the witnesses.

Considering, second: That the considerations with which the prisoner seeks to excuse himself are not to be taken into consideration for even though he committed the act in the highway, neither the fact of an assault is proven nor that Cruz attacked him, nor that the necessity had arisen to deprive Cruz of his life; for the circumstance of the tired condition of the horse does not favor Work; even in that condition the horse could travel faster than a man on foot, especially when the man who was following him was drunk.

Considering, third: That it is not to he believed that Cruz disarmed Work, who was on horseback, while the condition of Cruz, as alleged, with a pistol in one hand and a dagger in the other, scarcely admitted of his being able to disarm the prisoner; this assertion is not sufficiently proven.

Considering, fourth: That while it does appear in evidence that Cruz did have a pistol with which he had some time before created a disturbance, it has not been proved that he carried it at the time he was wounded; not even the witness Robledo so stating, though he claims to have seen a small something flashing, while the rest of the witnesses claim that he carried a whip in his belt. That although the distinguished counsel for the defense regards the whip as an arm because some considered the rod of iron as such, it has not been proven that the one carried by Cruz was of that kind, nor much less that he used it.

Considering, fifth: That it has not been proven that Cruz was an enemy, as the prisoner averred, but rather, on the contrary, that he was an honorable man, with the sole defect of a love for liquor, and that even a few moments before the event he said to some persons, “If I succeed in this trip I shall be happy,” such an assertion was scarcely ground for taking his life, for this did not constitute a direct threat against Señor Work; nor can it be included what was further said by Work, that Cruz said he would pay them to kill him (Work), something which the accused has not proven.

Considering, sixth: That as according to the fiat of the medical experts, Rafael Gómez, McElroy, and Progedis R. Balboa, the wound was such as to endanger the life of the offended party.

Considering, seventh: That as civil responsibility is not declared in this case, there being no plaintiff, the father of Francisco Cruz having refused to appear in that capacity against Work, and having pardoned the injury, the accused may not be held to the payment of damages occasioned by his act.

Considering, eighth: That the following extenuating circumstances concur in benefit of the defendant: The first, second, and fourth of first class, first and second of the second class, and ninth of the fourth class, and that there is no aggravating circumstance, connected with the case; in virtue whereof the penalty should be reduced from the mean to the minimum, and the defendant be likewise cautioned against any relapse whatsoever.

In view of the foregoing considerations, and in accordance with article 4 and sections 1, 2, and 4 of article 36, articles 39, 40 (sections 1 and 2), 42 (section 9), and articles 68, 71, 218, 529, and 308 of the penal code, I should and do hereby adjudge and sentence as follows:

• First. That Robert C. Work is hereby condemned to imprisonment of three years and four months, dating from to-day, subject to a period of one-fourth extra imprisonment^* in the event of his bad conduct.
• Second. He is likewise to suffer the loss of the pistol with which he committed the offense.
• Third. He is absolved from civil responsibility.
• Fourth. He is to be cautioned against a relapse into the same crime.
• Fifth. Let him be so notified, and let the sentence of this court be referred to the superior tribunal for revision.

I thus adjudge, sentence, and sign, etc., as judge (supply) of the court of first instance of the eighth judicial district, with the attending witnesses.

We attest:

Antonio Velazquez.

J. M. Charez.

Rafael Escobedo.

notice.

On the same day Robert C. Work and Señor Francisco Rocha, his attorney, being present in the court, at 9 a.m., were advised of the foregoing sentence. They acknowledged the advice and, with due respect, appealed from the decision of this court to that of the superior tribunal.

The defendant was forthwith advised of the personnel of the chambers of the supreme court^† and replied that he was willing to go before either of the magistrates of said supreme court competent to take the case, as he had no motive whatsoever for questioning either; and he added that he appointed as attorney for his defense in the second instance the same Juan Luis Tercero.^‡

We attest:

Lic. Velazquez.

R. C. Work.

J. M. Charez.

J. P. Rocha.

(6) Cross-examination of Antonio Vazquez.

On the 16th of the same day (month) Antonio Vazquez appeared in court, under summons, and took the due legal protest to state the truth. Being asked as to his general description he repeated the same as previously given. His testimony, heretofore furnished, was then read over to him, and was by him affirmed and ratified with the following corrections: A few moments before Francisco Cruz spoke with the deponent, offering him a drink, the said Cruz had had a dispute and quarrel with Tomás Zapata; and to this was it that he referred when he said, “If I succeed in today’s trip I shall be happy.”

That in his testimony given at San Cárlos he did not give the name Tiburcio Huerta. That the petition to have the criminal taken to the corpse was only presented by parents of Cruz and not by all who went there.

Being asked to relate precisely the events referred to in his former testimony, he stated that Francisco Cruz had no arms of any kind whatsoever, and only a whip in one hand; that he (Pascual Guevara) carried no arms whatever; that when Cruz asked Work for a peseta Guevara remained close to the deponent that Cruz was behind Work about 10 paces when he fired at him (Cruz): and that this occurred as they were descending the road, in a gulley, when he started down faster on account of his intoxicated condition; that at the moment of the shooting the deponent and Work were about 10 or 12 paces apart.

Being asked concerning the condition of the road at the point he replied that it is a highway or wagon road, and that there is not the slightest obstacle in the way to interfere with travel.

Being asked whether Cruz went up to Work and caught his horse’s bridle and drew out Work’s pistol, which Work took back from him, he replied: That Cruz could not come up close to Work, not closer than the distance already indicated; and that it is not certain that he took out the pistol and that Work took it away from him.

Being asked what the distance was from San José to the spot where the shooting occurred he replied that it was between the houses; that is, it was between the house of the defendant and that of Leon Grimaldo.

Being asked touching the character of Cruz, he replied that it was good; that he has always known him to be an honorable and hard-working man.

Being asked if when Work fired at Cruz he was moving along or had stood still, he replied that he (Work) stopped his horse across the road and fired with the understanding that the first shot was intended for the deponent, for he saw very clearly when he stretched his arm and saw where Cruz was standing.

This testimony was read to him and he affirmed and ratified the same, signing, etc.

We attest:

Lic Quinatanilla.

Antonio Vazquez.

Antonio Valdez.

Jesus Ma. Alfaro.

Note of the Legation of the United States.

The Department of State and of the office of foreign affairs, under date of March 23 last, states to this Government as follows:

“In a note of date of yesterday the United States minister in this capital says to me: I have the honor to present to your excellency the complaint of Mr. Robert C. Work, an American citizen, who is in jail at San Cárlos, in the State of Tamaulipas, under charge of homicide. Mr. Work states that the man he shot was a robber and that he acted in self-defense; the said robber having attacked him in open daylight a few miles from his residence. On returning thither on February 29 last, Mr. Work surrendered voluntarily to the judicial authorities and claimed their protection from an excited mob which set fire to a portion of his property and threatened the lives of himself and his family. According to my information Mr. Work is a respectable man, engaged in mining operations as secretary and general manager of the Linares Land and Mining Company, whose property is located some 15 miles northwest of San Cárlos.

“Mr. Work believes his life to be in great danger, and that his large interests are in peril, owing to the unfriendly feeling of the inhabitants and the indifference of the local authorities.

“I beg your excellency’s immediate attention to the case, feeling assured that you will issue such instructions to the authorities of Tamaulipas as will lead to the protection, of Mr. Work and his family, as well as his speedy trial for the offense with which he is charged.

“All of which I have the honor to transmit to you, requesting that you will be pleased to furnish me a report upon the matter; and I recommend to you, by advice of the President, that you see that Work receives a fair trial under law, and under all guaranties granted, etc. I renew to you my esteem and consideration.”

The foregoing I transcribe to you for your information, requesting that you will, at your earliest convenience, supply this (State) Government with a detailed report touching the case instituted against Work, stating the offense with which he is charged and all the other circumstances of the case.

Liberty and Constitution.

Victoria, April 2, 1888.

• R. Cuellar.
• Martin de I. Sanchez.

[Inclosure 5 in No. 30.—Translation.]

Appeal by Juan Luis Tercero, attorney for Robert C. Work, to the first chamber of the supreme court, March 5, 1889.

Juan Luis Tercero, attorney for defense of Mr. Robert C. Work, in the second as in the first instance, in the case instituted against him for the homicide perpetrated in the person of Francisco Cruz, in the mining town of San José, before you, with due respect, do present the various grievances embodied in the sentence as passed on my client by the court of first instance.

Mr. Magistrate of the First Chamber, etc.:

I shall be very brief and very precise in my statements.

The capital grievance is that the judge did not take the trouble to read the evidence for the defense as set forth in the court of first instance, or at least, that he failed to read it with care. I strove in the time of defense to have everything substantiated, to use nothing but facts based on corroborated evidence and strictly logical deductions therefrom. But the judge ignores all; he took no notice of the elements of this defense, the pure grain thereof, so to speak, and if he made any allusion whatever thereto, it was to pick out the strongest point, such as the reference to the whip or stick of which I made mention in the tenth paragraph of my statement of defense.

It is evident throughout that the judge of first instance proposed to ignore all the arguments of defense; that is to say, not to hear the accused in his own defense; and that he proposed to conquer, not convince him, something wholly opposed to the nature of justice, which admits only of convincing by the force of reasoning, the only way to conciliate conflicting opinions.

I have only to beg the magistrate to be pleased to read my statement of defense in the first instance, now that the Judge did not read it, taking care to note these points.

• First. In the sentence of appeal it is affirmed that the eye-witnesses of the matter, Grimaldo, Vazquez, and Guevara are competent, while the fact is they are decidedly incompetent. Suffice to read the quotations from the evidence embodied in my statement.
• Second. In that sentence appears the false statement that Work said that Cruz carried the pistol and knife in his hands at the beginning of the trouble. This is not so. It was at the end of the shooting that Mr. Work said he (Cruz) carried the same in his hands; that is to say, before that he carried the weapon in his belt.
• Third. The judge took no notice of the words of Fernando Cruz, which he employed to explain the intention of Work in shooting Francisco, although they possess great weight in an understanding of the fatal encounter. See Art. 201, section iv, of the penal code.
• Fourth. Likewise the judge paid no attention to the argument touching the “indivisibility of confession in criminal matters;” the judge using witnesses who should have been discarded, sets aside the indivisible evidence of the accused, which should have been preferred, instead of building thereon the burden of proof to which the law should have been applied.
• Fifth. Finally, the sentence of the court of first instance, as far as relates to the study of the evidence is so lightly framed and considered, that we find therein assertion such as that Cruz did not have bad antecedents aside from his habits of intoxication. If the judge had read my statement in defense with care he would have there seen citations of evidence going to prove that Cruz was a quarrelsome man, and therefore to be dreaded.

Everything, Mr. Magistrate, in the handling of this process, goes to induce the belief that this process should have been regarded as one of legitimate infliction of wounds in proper self-defense; if you please, perhaps not wholly irreprehensible—but in the light of the relative antecedents of the deceased and of Work; the atmosphere of malicious influence surrounding Work at San José, his ignorance of the Spanish, and the persistency with which Cruz followed up Work, he (Work) had reason to believe that the time for absolute and supreme action had arrived.

The defense does not, therefore, exaggerate the gravity of its conclusions, when it sustains, as it did sustain in the court of first instance, that the penal procedure set forth in section^* 4, article 201 (paragraph 2), is the procedure truly applicable in the case.

I have great confidence, Mr. Magistrate, that you will understand me, and will appreciate the study of this case which I have so conscientiously labored out for my client. You can estimate the care with which I have striven to avoid therein anything like hyperbole, and have tried to make the whole line of defense substantial and precise. My client, perhaps, may be blameless enough not even to be guilty of a minor offense, but I have not so regarded him. I firmly believe him to have acted in legitimate self-defense. Of that I have not the slightest doubt; and, if anything, I might allow that there had been a slight excess of caution in the defense, very slight in the case of a foreigner living among those who dislike him, and even among these some of his own countrymen like Smith y Spares. Please, Mr. Magistrate, take notice that Smith is a Jew; yes, a Jew, and that he lost in a lawsuit gained from him by Work in this same First Chamber.

The foregoing will suffice, Mr. Magistrate. I respectfully pray from you all the kindness allowable under the law toward my client. I pray that the term of his sentence may be regarded as having been amply covered by the past sufferings of himself and this honorable family so well educated, educated and affectionate.

Ciudad Victoria, March 5, 1889.

Juan Luis Tercero.

[Inclosure 6 in No. 30.—Translation.]

Sentence by Judge G. Mainero, of the First Chamber of the Supreme Court of Tamaulipas in the case of R. C. Work, taken to him on appeal.

Ciudad Victoria,
Tamaulipas, May 15, 1889.

Having taken under advisement the case (which was begun by the second justice of the peace at San Cárlos, taken up by the court of first instance of the first district, and continued until sentence was passed by the court of the eighth district) against Robert C. Work, fifty-three years of age, married, a miner by profession, native of the United States of America, a resident of San Cárlos, and domiciled in the mining camp of San José, charged with the crime of homicide, perpetrated in the person of Francisco Cruz;

Having taken into consideration the evidence contained in the summary as compared with the cross-examination, and the confession of charges made by the defendant;

Having investigated the sentence of the lower tribunal,^† assigning Work to a penalty of three years and four months imprisonment, to date from the date of the sentence, the 26th January, of the current year (1889); and from which sentence the defendant appealed;

Having taken under advisement, likewise, the statement of grievances set forth by his attorney in the said instance, and also the opinion of the attorney-general that it is advisable that Work suffer capital punishment; as well as all else contained in the evidence and the record; and

It appearing, first, that on the 29th day of February of last year, while defendant was returning on horseback from Linares, on reaching the first of the houses at the camp of San José Cruz, who was intoxicated, came out to meet him, asking him for a peseta; that Work refused it, and went on his road towards his house, telling the two eye-witnesses to call Cruz back; that Cruz, nevertheless, followed up Work, according to the testimony of three of the witnesses with a whip in his hand, but, according to Work’s statement, with a pistol in one hand and a knife in the other. Another witness asserts that Cruz carried in his hand a small knife when he followed up the defendant.

It appears, second, that when Work, as thus described, followed by Cruz reached a decline in the road, which dipped at that point, he stopped his horse and intimated to his pursuer that he should cease from following him, for in contrary event he (Work) would use his pistol, which he had already seized. Work continued riding along, still pursued by Cruz; that the horse shied at a block of wood lying in the road, and turned back; whereupon the rider (Work) after advising his pursuer, for the second time, not to follow him, fired upon him (Cruz) from the result of which Cruz died shortly afterwards. All the witnesses and the accused agree that Cruz was drunk.

It appears, third: That the eye-witnesses Grimaldo, Guevara, and Vazquez, who were eye-witnesses, according to the statement of Work himself as well as the other witnesses summoned by the defendant, assert that Cruz only had in his hand a whip; that he did not assault Work with a whip, nor that he did not say the words that he was charged with killing him (Work); that all he said was that he wanted a peseta, and that he kept following him up with the obstinacy peculiar to the drunken, Vazquez and Guevara having been unable to detain him, as Work requested when Cruz persisted in pursuing him.

It appears, fourth: That the witness Francisco Peña, summoned by the accused, stated that after having seen Don Roberto at the time he reached the camp, while he was passing the house of Leon Grimaldo, witness went to the house of Antonio Vazquez, and just as he was about to reach the patio^* of the house he saw Vazquez jump the fence with a hatchet in his hand (with which he had been cutting wood); that he then hurried up, and saw Vazquez going behind Francisco Cruz, speaking to him and asking him to come back; he heard Cruz speak twice to Don Roberto; that there was a dip in the road, and when he started down he (Don Roberto) checked his horse across the road, and with his pistol in his hand told Cruz not to come nearer for he would give him a bullet; that Work then went on a little further and again stopped; he then repeated the words he had spoken to Cruz; that the latter paid no heed, but continued to follow him up; that Don Roberto then fired the first shot, and a second, Cruz falling after the second shot. This witness in a prior deposition, specially taken by the court, replied that he saw on Cruz no arms save a whip, which he carried in his hand.

It appears, Fifth: That the witness Francisco Robledo, summoned by Work, said he was loading a donkey with wood on the hill-side facing Work’s house, about 400 paces away; that he heard voices in the gully below; that he jumped upon a log and saw the prisoner with the pistol in his hand; that he fired twice at Cruz, whom he saw then fall; that he ran to the house of his master, Work; that before reaching it he met a servant who was going to call him; that on reaching the house his master said to him, “I have had the bad luck to kill Francisco Cruz; run to the sheriff’s house and tell him, so he can take charge of me;” which order deponent at once carried out. In a prior deposition this same witness stated that he saw the occurrence plainly, being at the outside 100 paces away, engaged in the work hereinbefore specified and described; that he was able to see that Cruz carried a small knife in the hand, which he saw flashing; that he then saw Work fire a shot at Cruz; that he then ran towards them, and when he reached the horse’s flanks Work fired a second time, deponent seeing that Cruz fell near the horse. He added that while going to give notice to the sheriff, in compliance with Work’s order, he saw that Cruz was still on the ground with the little knife under his hand that was thrown on the ground.

It appears, sixth: That the medical expert, Dr. Gomez McElroy, rendered his report in consonance with the opinion of the other experts, and in view of the other correlative circumstances, as follows:

“The evidence shows that Work was in front and Cruz behind; that Cruz started towards Work in the encounter, while Work retreated; that the attack of Work on Cruz was at a short distance, not exceeding 10 varas, for the alcalde (mayor) of San Cárlos avers that in the reconnaissance he made of the ground he measured 18 varas from the spot where Cruz fell to the log of wood, and Work asserts in this deposition that his horse shied at that log of wood and jumped back; that as Cruz probably fell almost instantly, he must have taken very few steps to allow of his body being found at the distance certified by the mayor of San Cárlos, taking into consideration the fact that Work’s horse could not have shied right on the log, but at some slight distance from it; and that the horse of Work must have gone back some varas in his frightened condition, as I have said, and perhaps somewhat excited too by the nervous agitation of Work, who was handling the reins excitedly. That Work and Cruz, as they stood relatively to each other, exposed their right side, this being evidenced clearly by the direction taken by the aforesaid bullet, as outlined by the examining surgeons, for Cruz must of necessity have been facing Work, with his right side exposed to admit of the course taken by the bullet, right to left; that Work being on horseback and Cruz on foot, it can be easily understood that the bullet could not take a horizontal slant, but the slant it did take, to wit, from above, below; that in view of the position in which Cruz was when he received the bullet, and the direction followed by the same, as described by the medical experts, which description confirms the position of Cruz hereinbefore detailed, it appears: that Francisco Cruz received a wound from a fire-arm, the bullet entering the intercostal space above the fifth rib in the left side, and issuing (or attempting to) from the lower part of the left loin; that though the experts fail to designate the point of entrance of the bullet, it is clearly evident that it was the hole right over the nipple of the right breast, while they themselves state that they felt the bullet at the left side. The exact direction taken by the bullet, continues the expert, is as follows: From above, below, right to left front towards rear. In this course, and in the successive organs pierced, it appears that the large veins of the heart and perhaps the heart itself were wounded, both the lungs, the diaphragm, some important abdominal viscera—all of these wounds being serious and dangerous; that the cutting of the veins to the heart necessarily at once produced an abundant hemorrhage; that this sudden hemorrhage was the cause of death, and to it was due the instantaneous character of the death; that the wound inflicted upon Cruz was of the kind that causes immediate death, and is classified in article 529 of the Penal Code extant in this State.”^*

The medical expert, Dr. Balboa, likewise commissioned, substantially corroborates the opinion of his fellow expert, and, at the close of his report, remarks: “I am of the opinion, according to the direction taken by the bullet, that it affected, if not the heart itself, at least the arteries; also the pleura, the lungs themselves, and perhaps some important abdominal viscera; that the piercing of the arteries induced an abundant interior hemorrhage, and causing instant death; these wounds being of the class covered by the provisions of article 529 of our Penal Code, or, in other words, wounds fatal of themselves.”

It appears, seventh: That Work maintained in his examination and constantly in the course of all the proceedings that Cruz was a man given to heavy drinking; that he was of a quarrelsome disposition, the servant of an American who was an enemy of his; that he (Work) had before that time had a dispute with Cruz; that Cruz when summoned before the authorities said that as Work had arranged the disputed matter with Cruz’ master, as in fact seemed at that time to be the case, every thing was all right now, and Work had nothing to fear from him (Cruz). That the American, Spares, the employer of Cruz, and a declared enemy of Work, had recently threatened him (defendant) in writing, sending him a challenge by conduct of the prosecuting attorney; that, due to deep dislikes entertained against him (Work) by Spares and by the other Americans mining in that camp since 1885, efforts had been made to have him expelled, and a circular to that effect had been started, which had been signed by several, among them Vazquez, the eye-witness of the occurrence; that this was not the sole cause on his part (Work) for discrediting that witness as well as Grimaldo and Guevara, who after the shooting joined with a wild mob in the request that the justice might allow them to tie the prisoner to the corpse until the authorities should arrive and should order the burial of the corpse; that on the night of the shooting the same mob tried to set fire to his house, burning up the fence; that on account of the foregoing in evidence, and because he had been advised by trustworthy persons that attempts would be made on his life, and because, finally, Cruz being drunk on that day had said to Vazquez, “If I am successful in this venture I shall be happy,” defendant insists in his assertion that Cruz had the intention of killing him, as in fact he shouted out to him when he was following him up; and that, therefore, in making use of his pistol as he did against Cruz he acted in legitimate self defense.

It appears, eighth: That the witnesses, all of them of age, have all given very good accounts touching the prior conduct of the defendant, stating him to be a man of pacific disposition and of honest and hard-working habits.

It appears, ninth: That the attorney-general in his finding expresses himself as follows: “The judge of first instance of the first judicial district, without stopping to consider that as a mere executor of the letters requisitorial emanating from the eighth district court he had no jurisdictional powers in the matter covered by the said letters, either in favor of Work or in his contra, did overstep his powers or faculties in issuing this order of June 12 last, and did, beyond doubt, trespass upon the sphere of duty and attributes of the executive, entering into details with which he had about as much to do as the appointment of a chief of public guards. But as it would be manifestly unjust to pass upon this conduct without giving him a hearing, it becomes necessary for the said judge to bring forward his report substantiating his procedure, and that within the period designated by this court.

“A like decision should be rendered in the case of the judge of the first instance of the eighth district touching a point of serious character referred to at the commencement, namely, the liberty enjoyed in this capital by the defendant Work, who, despite the fact that order for his arrest was issued; that he was de facto arrested; that he was sentenced to 3 years and 4 months of imprisonment; and that, though receipts are shown in the court for his delivery at the jail in San Cárlos, he was still free. This point is of importance, as the American minister has formulated demands in this case; while the fact that not for a long time past has such a case of leniency been known, and a case where so much of tolerant kindness been displayed by the authorities towards a convicted criminal. It is shameful that a person sentenced to prison should be in absolute liberty in the very place wherein the highest judicial powers of the State exercise their functions; and in this regard the attorney-general considers the prestige of the administration of justice in Tamaulipas as at stake.” And the attorney-general concludes: “Third, let substantiated statements be obtained from the judges of the first instances alike in the first and the eighth districts; fourth, that, in the light of such information, and in view of the evidence in the case, let investigation be made of the responsibility which said judges are liable to have incurred, so that the respective penalties may be assigned.”

It appears, tenth: That the defendant has beeen imprisoned since the 3d of March, 1888, to the 30th of April of the same year, when he was released on bail; also from January 17, 1889, when he was again committed at San Cárlos to the 28th of that same month, when the case was referred to the court; also from the 7th of this May, when he was re-arrested by the order of this chamber to date, a total period of imprisonment of two months and sixteen days; and

Considering, first: That the fact that Work inflicted the wound is abundantly substantiated, having been authenticated by the judicial investigation, the autopsy, the confession of the accused himself, and the testimony of eye-witnesses;

Considering, second: That the exculpatory exceptions advanced by the criminal and his attorney are embraced within the scope of articles 34 (sections 8 and 10) of the Penal Code,^* for which cause it is of vital importance, after an examination of the evidence on record, to determine up to what extent legitimately and rightfully the provisions of those two sections can be appealed to in passing upon this case.

Considering, third: That to constitute legitimate self-defense as referred to in section 8, it is necessary that the accused repel an actual assault, imminent and violent; and it is further required that the accuser need not prove (nor does it so appear in evidence) that the party assaulted foresaw the assault or could easily have avoided it by the use of other legal measures.^† Now, aside from the statement of the defendant, there is no evidence going to show that Cruz was wounded by Work, the latter repelling an actual, imminent, and violent attack from the former, unless it be the sole testimony of the witness Robledo, of which mention will be made later on. And it appears on the face of the evidence that Work could easily have escaped an assault, as he was on horseback and his pursuer was drunk and on foot; that likewise there was no rational motive for the means employed by him in his defense.^‡ The presumption, more or less well founded, that a man may have that another entertains hostile views towards himself, does not warrant him for taking that assault verified and forthwith making use of his weapons. To admit the contrary would be not only in violation of the tenor of this article^§ we are considering, but would also open Vide door to impunity in the commission of most serious crimes.

Considering, fourth, that the statement of the witness Robledo, consisting of an affirmation that he saw Cruz walking fast after Work with a small knife in his hand, and that after the first shot Cruz ran quickly up to Work and received the second shot fired by the defendant, when he (Cruz) had almost reached the horse, and that he then fell to the ground, should not be received in evidence for many reasons. In the first place, the witness said not a word in his preliminary examination about the important circumstance of Cruz carrying a knife; secondly, he has stated several discrepancies in the course of his declaration. For instance, in his prior testimony he said he saw Cruz and Work at a distance of 400 paces, while in his last deposition he stated that at the time of the occurrence he was 100 paces away; and, above all, that he appears as a witness for Work after having been able to consult with Work at Victoria, Robledo being a servant of Work. As bearing out the erroneous character of the testimony of that witness, this chamber will bring in the deposition not of the witnesses Grimaldo, Vazquez, and Guevara, who are rejected by Work, but the testimony of the witness Francisco Peña, a witness presented by the defendant himself, and who is wholly competent, and he agrees with the others in their statement that they only saw a whip in Cruz’ hand, it being finally notable that none of the numerous witnesses who have testified in this case, and who saw the body of Cruz before it was taken up from the public highway, affirm that they saw in the hand of the deceased the small knife mentioned alone by Robledo.

Considering, fifth, that in order to invoke the exception mentioned, in benefit of the defendant, set forth in section 10 of article 34, of the penal code, it is expressly required, as the said section specifies, that the law has been violated under the impulse (on the part of the responsible party) of a moral force which produces a well-founded and irresistible apprehension of imminent and serious danger to the person of the trespasser on the law. And according to the evidence in the case, hereinbefore referred to, the fear previously entertained by Work on account of the antecedents he alleges, even if well founded, as he claims, is by no means acceptable as irresistible apprehension, under the law, or, in other words, as a fear to which a guarded man should yield, for Cruz was not armed and Work was, for Cruz was drunk and Work was in his right mind, and because mounted, as he was, Work had in every way the advantage over Cruz, not only to avoid the quarrel but even to provoke it, and even if a quarrel ensued he could have come out best.

Considering, sixth, that this chamber has ever sustained the most lenient procedure as outlined by publicists touching the classified confession of individuals, that procedure can not be applied in this present case, as the defense would intimate, for even discarding the confession as made by Work, there still remains sufficient evidence in the case to declare him guilty of the offense under consideration. It would therefore be absurd to apply that doctrine in that case, especially in view of the provision of article 9^* of the penal code, whose tenor is so clear; for, with or without the testimony of Work, there is abundant evidence on record that Work violated the penal law, it being consequently presumable that he acted with fraud.

Considering, seventh, that as there was no autopsy of the corpse the provisions of article 544^† of the penal code are applicable to this case, so as not to regard it as a case of homicide, in the infliction of penalty, though, in fact, death did ensue soon after the infliction of the wound, a decision constantly maintained by this chamber in like instances save such exceptional cases as that of Ramon Segura, in which it can be said that the autopsy is rendered unnecessary by the nature of the wound itself, when it is proven that the latter, beyond the slightest doubt, resulted in the destruction or mutilation of any organ necessary to life. In this case it is to be taken into consideration also that commissioned experts did not even see the wounds, and were obliged to depend upon the statements of non-professionals; also, that though the experts state that an internal hemorrhage must have taken place, a direct and immediate cause of death, they conclude their report, saying the case falls within the scope of the provisions of article 529^‡ of the penal code, the article always applied by this chamber in similar cases, there being no other applicable when under law those provisions of the code applicable to homicide do not prevail.

Considering, eighth, that under Art. 517^§ of the penal code the consideration of advantage does not weigh in the three first-mentioned cases if the one possessing said advantage should he acting in legitimate self-defense, nor does it weigh in the fourth case, if he who happens to be armed or on foot is the party assaulted and should also run peril by neglecting that advantage.

Work having employed an arm undoubtedly superior to that carried by Cruz, even admitting the latter carried a knife, he, it must be admitted, acted under advantage; and the mean^* term of the penalty in such event, as set forth in article 539 of the penal code, which is five years, should be increased in this case one-third, i. e., twenty months more, making an aggregate of eighty months.

Considering, ninth, that there operates in favor of the accused, with absolute certainty, the first of the extenuating circumstances of the first class; and in his contra the seventh of the aggravating circumstances of the first class; while, if conceding that the accused is also favored with the fifth of the extenuating circumstances of the fourth class, this chamber bears in mind, not only the general idea that the benefit of the doubt should ever be accorded to the criminal, but also bears in mind the uniformly good antecedents of Work, and that he was a pacific man; also that it is very reasonable to presume, very probable and likely that when he used his arms against Cruz, he acted under fear, more reasonable than to presume that in brutal ferocity he committed an odious crime, so at variance with his pacific disposition. This conjecture is all the more plausible if it is considered, as it should be, in the light of the evidence, that Work was surrounded by the animosity in general of his own countrymen engaged in the same profession with himself; also that he had had occasion to lodge complaint against Cruz, who was a servant of one of his bitterest enemies, all of whom lived in that camp.

Considering, tenth, that in view of the time consumed by the proceedings, and the fact that Work was at liberty a good portion of that time, the date fixed by the lower court for the commencement of the term of imprisonment is to remain the same in accord with the spirit and the letter of articles 192 and 193 of the penal code.^†

In virtue of the considerations hereinbefore stated, and in view of the legal provisions hereinbefore, and the 71st,^‡ 218th^§ and 231st^ǁ articles of the penal code, and the 7th of the decree of adoption, be it resolved:

• First. The sentence of the lower tribunal shall be altered, and Robert C. Work shall be condemned to a penalty of imprisonment of four years five months and ten days, on the public works, to date from January 26, of the current year.
• Second. The pistol shall be confiscated and the amount realized from its sale shall be devoted to the improvement of the jail at San Cárlos.
• Third. Let the prisoner be admonished not to relapse in the offense.
• Fourth. Let the interested parties be notified, and should they not appeal, let the prisoner he committed to the custody of the executive authorities, in due form, and the papers in the case, with the record of this sentence be referred back to the court from which they originated; due record of the same, with the opinion of the attorney-general to be made in the archives of the court, including the matter of the responsibility of the judges of the first and eighth districts, and the decision reached in the case.

Signed by the magistrate in this case referred to him on appeal.

I attest:

• Lic. G. Mainero, Judge.
• Juan G. Calderon, Secretary.

[Inclosure 8 in No. 30.—From the Two Republics, July 2, 1889.]

Governor Prieto answers the Work letter.

Victoria, Mexico, June 23.

Dr. Ornelas,
Consul at San Antonio:

Robert Work, tried for murder, was sentenced by the district court at San Carlos to three years and four months imprisonment. He appealed and the first audience of the supreme court of the State condemned him to four years. He begged the admission of a second appeal, which was granted and is now pending the decision of the court, which will soon be obtained. The greater part of the time he has been enjoying liberty under bond, notwithstanding that in Tamaulipas this benefit is very much restricted. At this present time, pleading sickness, he is at home. There is therefore not only a lack of truth in the publication but of gratitude.

A. Prieto,
Governor of Tamaulipas.

1. Vara equals 33 inches.
2. A Mexican hug.
3. Adieu! Adieu!
4. Alcalde can mean judge.
5. Alcalde can also mean mayor.
6. Compadre, “Godfather.”
7. Negocio: “Business.”
8. Bérnabe López was the judge.
9. Peseta; 25 cents.
10. Hacer las horas: Local idiom; Take a drink.
11. Gringo: American (offensively applied).
12. Cabron: man who allows his wife to be seduced.
13. Ten months.
14. Supreme court of State of Tamaulipas.
15. Tercero was his lawyer in the first instance.
16. Art. 201, Sec. 4, P. 2, Penal Code: In order to determine whether the excess in defense is undue or otherwise, not only the act itself should be taken into consideration, but likewise the degree of excitement or sudden dread on the part of the person thus assaulted; the hour, the conditions, the place of the assault; the age, the sex, the physical constitution, and the other circumstances surrounding the assaulted and the assaulting party; the number of those conducting the attack, and of those engaged in the defense; also the arms employed alike in attack and defense.
17. Sentence by Judge Velazquez, judge of district court, eighth district, Tamaulipas, 1–26–’89.
18. Open court of house.
19. Article 529. Wounds endangering the life of the party offended are punishable on that ground alone with five years’ imprisonment.

20. Article 34 of the Penal Code: The circumstances which vitiate criminal responsibility for the infraction of laws (penal) are: * * *

    • Sec. 8. To act in defense of one’s person, honor, or property, or of the person, honor, or property of another, repelling au, actual assault, imminent, violent, and without cause; provided, however, the accuser can prove that any of the following circumstances intervened. * * *
    • Sec. 10. The violation (of a law) under the impulse of moral force, if that force combines to produce a well-founded and irresistible apprehension of imminent and serious danger to the person of the trespasser on the law.

21. • Caption I of section 8, article 34 of Penal Code: [Intervening circumstances—see p. 14] foot-note.
    • Caption II. That the party assaulted foresaw the assault and could easily have have avoided it by the use of other legal measures.
22. [Intervening circumstances, see p. 14, section 8, article 34] Caption III i. e., That is, that there was no rational motive for the means employed in the defense.
23. Article 34 of Penal Code.
24. Art. 9. Whenever it is proven to an accused party that he violated a penal law it shall be presumed he acted with fraud, unless the contrary be proved, or unless the law requires fraudulent intent to constitute offense.

25. Art. 544 of penal code: For the imposition of a penalty a wound shall not be considered as fatal save where either of the three following circumstances obtains:

    I. When the wound in and of itself and directly occasions death, or when death results from some other cause, this cause having developed from the wound or from some necessary or immediate effect thereof.

    II. When death ensues within sixty days counting from the date of the wound.

    III. When, upon making the autopsy of the corpse, two experts do declare that the wound was fatal, and to the end confining themselves to the provisions contained in this and the two subsequent articles.

26. Quoted supra.

27. Art. 517. It is understood that one of the parties engaged in dispute has the advantage over the other—

    I. Whenever one is superior to the other in physical strength, and the latter be unarmed.

    II. Whenever either is superior to the other in the arms he carries or in his greater skill in their use, or in the numbers who may accompany him.

    III. Whenever one employs any means to weaken his adversary’s defense.

    IV. Whenever one is fallen, or unconscious, or disabled, and the other be armed or on foot.

28. Mean term signifies the period of penalty set to any offense; the minimum is reached by deducting a third; and maximum by increasing one-third.
29. • Art. 192. Penal Code. If the time consumed by the proceedings should exceed the period fixed by the law for the termination of the case, the judges may, if they regard it as just, impute the excess to the period of penalty assigned in the sentence, when that punishment is equivalent to the sufferings endured, or when it exceeds the grade of suffering endured by the accused during the trial proceedings.
    • Art. 193. If the sufferings of the prisoner during the proceedings be different and be minor to those imposed by the penalty, the judge may make a rebate in his sentence equivalent to half the excess.
30. Art. 71 of the Penal Code. Every penalty of ordinary imprisonment or detention in an establishment of penal correction, for a period of two years or more, shall imply the possible imposition of a period of imprisonment or detention equivalent to one-fourth more of time, and it shall so be set forth in the sentence.
31. Art. 218. Every sentence of condemnation shall provide that the criminal shall be cautioned against a relapse into the offense for which he is sentenced; and he shall forthwith be advised of the penalties assigned to him. Like caution shall be administered unto him when he is set at liberty upon the termination of his period of sentence. In both cases a formal document shall be drawn up, to be signed by the prisoner, if he can write.

32. Art. 231. If there exist in the premises only extenuating circumstances, the penalty may be reduced from the mean to the minimum; and if there are aggravating circumstances, the penalty may be increased from the mean to the maximum.

    When aggravating circumstances, combined with extenuating features prevail, the penalty assigned under the law shall be reduced or increased according to the weight of the former or the latter circumstances, computed according to the scale set forth in article 37. [Penal Code.]