428-435 - United Nations Treaty Collection

More documents

Recommendations

Info

434 MEXICO/U.S.A. (GENERAL CLAIMS COMMISSION) not unprovoked, cold-blooded murder, as contended by the United States, punishable under Mexican law by death, and even if full credence is given to Uzeta's testimony and to all other testimony that could be considered most favorable to him, clearly the punishment inflicted on him must be considered to have been inadequate under Mexican law. If Uzeta was told that offensive remarks concerning him had been made by Morton or by his companions, the proper form of redress for any such offense would have been a resort to a civil or criminal action and not to homicide. And under Mexican law all acts of aggression do not justify the killing of an aggressor. With respect to this point attention may be called to the following provisions of the Mexican Criminal Code of 1871 : "Murder or Homicide: ART. 560. Homicidio calificado is one committed with premeditation, with advantage, by stealth or by treachery. ART. 561. Intentional homicide shall be punished by the death penalty in the following cases: I. When executed with premeditation and not in a fight. If committed during a fight the penalty shall be twelve years of imprisonment. II. When executed with advantage to the extent that the person committing the homicide does not incur any risk whatever of being killed or wounded by his adversary and when he is not acting in legitimate self-defense. III. When executed by stealth. IV. When executed by treachery." In the light of the most favorable view that may be taken of Uzeta's act it appears that the sentence should have been considerably in excess of four years. Having in mind the principles asserted by the Commission dealing with cases involving charges of improper prosecution and particularly the Kennedy case, supra, an award in favor of the claimant can properly be made in the sum of $8,000.00. Fernandez MacGregor, Commissioner: I concur with Commissioner Nielsen's opinion that in this case an award must be granted. Although I think that in some cases in which very important witnesses have not been summoned and examined a denial of justice can be predicated, my decision in this case is based, rather than in the failure of the Judge to receive some testimonies, in the consideration that the facts that the Mexican Judge considered as proven did not sustain his legal conclusions, which, I think, were widely at variance with the provisions of the Penal Code of the Federal District of Mexico. As a matter of fact, in the decision rendered by the Court of Fourth Instruction of Mexico City, the Judge summarized the facts concerning the murder of Moi ton in the following manner : "Whereas, Third: From the declarations of the accused and of Major Agustin Lopez, it appears that the facts in substance took place as follows: Morton made some remarks in English, addressed to Uzeta and his companions; Alejandro Anguiano informed Uzeta in Spanish what Morton had said, this being somewhat offensive to Uzeta; Uzeta requested Morton to state in Spanish what he had been saying in English. Morton instead of doing so, stood up in an aggressive attitude, rolling up his sleeves and advancing upon Uzeta, caught him by the left hand, and at the same time the companions of Morton assumed a similar aggressive attitude; Uzeta by reason of these
MEXICO/U.S.A. (GENERAL CLAIMS COMMISSION) 435 acts fired the pistol which he had shortly before pulled out and so killed Morton...." On the basis of these facts, the Judge states in the Fourth whereas (considerando) : ".... There was, therefore, on the part of both individuals acts of mutual contention, first by words and afterwards by deeds, aggressive acts on the part of Morton which Uzeta accepted and aided in assuming greater proportion, which constitutes the fight, which is defined in the latter part of article 553 of the Penal Code...." The provision of the Penal Code to which the Judge refers in his last paragraph reads as follows : "By fight is understood, the combut, the engagement or the physical struggle and not one of words between two or more persons." There is no doubt that the Penal Code of the Federal District requires a real struggle or in other words, physical acts of aggression or defense between the two combatants. I do not think that either the aggressive attitude of Morton, to which the Judge refers, in rolling up of his sleeves and advancing towards Uzeta, or his holding him by the left hand, can be construed as a real struggle and therefore I do not think that Article 553 of the said Code should be applied. The assumption of a fight, on the part of the Judge, changed completely the aspect of the homicide perpetrated by Uzeta and, consequently, the penalty to which he was sentenced was widely and unwarrantedly different from the penalty he deserved for his brutal aggression on Morton. No appeal was entered against this decision by the Attorney for the State. In view of the foregoing, I am of the opinion that an award should be made on behalf of the claimant in the sum of $8,000.00 without interest. Decision The United Mexican States shall pay to the United States of America on behalf of Ethel Morton the sum of $8,000.00 (eight thousand dollars) without interest. AMERICAN BOTTLE COMPANY (U.S.A.) v. UNITED MEXICAN STATES {April 2, 1929, concurring opinion bv American Commissioner, April 2, 1929. Pages' 162-167.) CONFLICTING JURISDICTION OF SPECIAL CLAIMS COMMISSION. Fact that claim had been filed with Special Claims Commission, United States and Mexico, will not preclude the tribunal from exercising jurisdiction it possesses under the compromis. Since claim is a contract claim in nature rather than based on a revolutionary seizure, held, tribunal has jurisdiction. CONTRACT CLAIMS.—CONTRACT WITH GOVERNMENT INTERVENTOR OR CUSTODIAN OF SEIZED PROPERTY. A brewery was seized by Carranza 29
Page 1 and 2: REPORTS OF INTERNATIONAL ARBITRAL A
Page 3 and 4: MEXICO/U.S.A. (GENERAL CLAIMS COMMI
Page 5 and 6: MEXICO/U.S.A. (GENERAL CLAIMS COMMI
Page 7: MEXICO/U.S.A. (GENERAL CLAIMS COMMI

428-435 - United Nations Treaty Collection

Create successful ePaper yourself

Delete template?

Save as template?