Villareal v. Hammond, 7536.

• Decision Date: 06 December 1934
• Docket Number: No. 7536.,7536.
• Citation: 74 F.2d 503
• Parties: VILLAREAL et al. v. HAMMOND, Marshal.
• Court: U.S. Court of Appeals — Fifth Circuit

74 F.2d 503 (1934)

VILLAREAL et al. v. HAMMOND, Marshal.

No. 7536.

Circuit Court of Appeals, Fifth Circuit.

December 6, 1934.

Leonard Brown, of San Antonio, Tex., for appellants.

A. W. W. Woodcock, Sp. Asst. to the Atty. Gen., and Douglas W. McGregor, U. S. Atty., and Brian S. Odem, Asst. U. S. Atty., both of Houston, Tex., for appellee.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

To obtain a reward of $750 offered for the arrest in the United States and confinement in jail there of one Lopez, a bond defaulter, who had escaped into Mexico, appellant Villareal, acting with Hernandez and others, effected his forcible seizure in and abduction from Nuevo Laredo, Tamaulipas, Mexico, to Laredo, Tex. Upon a fugitive complaint charging that they had been guilty of, and had been charged in Mexico with, the crime of kidnapping, appellants were committed to await extradition.

Suing for relief on habeas corpus, they denied that they had committed an extraditable offense. They insisted that what they did was not kidnapping under the extradition treaty, the laws of Mexico, or the laws of Texas. The argument under the treaty provision, Treaty of Feb. 22, 1899, art. 2, subd. 16 (31 Stat. 1820)¹ was that the treaty words, "for any other unlawful end," taken in connection with those preceding it, make it clear that abduction or detention is not, within its meaning, kidnapping. These are but means. Kidnapping occurs, they say, only when the abduction or detention is for "an unlawful purpose or end." Declaring that the end for which Lopez was abducted was not unlawful, but the quite lawful and commendable one of apprehending a known fugitive and bringing him to justice, they insist that within the treaty meaning they did not kidnap him.

Under their second ground they argue that article 609 of the criminal code of the republic of Mexico defining kidnapping² does not denounce as an offense what appellants did. They say, first, that they did not seize Lopez "to dispose of him at their will and pleasure" as there denounced; that they seized him to turn him over to justice. And they say, too, that, the proof showing that neither of the appellants actually seized Lopez, they could not be guilty of kidnapping under the Mexican law, which requires seizure, though they did procure his seizure and did aid and assist in making it effective.

The first point under this ground is a repetition of the position advanced under the argument on the treaty provision, that the act of abducting Lopez was not unlawful, but lawful, since made for the purpose of delivering him to American justice. The second is that at most appellants would be accomplices, and there is no provision in the treaty for delivering accomplices up. Their third ground is that, to be extraditable, the offense charged must be a crime in the place where the fugitive is taken, and that the Texas Penal Code, art. 1177,³ does not denounce as criminal what appellants did. The argument here is that, since the Texas statute denounces "false imprisonment" for the purpose of being removed from the state, and does not denounce detaining, abducting, or arresting, it must appear, to sustain a charge of kidnapping, that there was false imprisonment. In the argument under this point, the contention made under each of the other grounds, that seizure of a criminal to deliver him to justice is not unlawful, again appears in this form, that it is not false imprisonment to seize and detain a known criminal for the purpose of delivering him to justice.

It was proven that Villareal, having arranged to have the amount of the reward placed in escrow, went over into Mexico to bring Lopez back. Failing to have him lawfully deported as an American citizen unlawfully in Mexico, he arranged on the Mexican side of the river with Hernandez and some officers of the military to clandestinely seize Lopez and cross him unlawfully from Mexico by force and violence. Having so arranged, he at once took himself over to the American side, went down to the bank of the river at the place agreed upon, a place where under the laws of the United States and Mexico it was unlawful to effect a crossing, and waited there to complete the abduction. Every incident of a kidnapping was present. Induced by Hernandez, his supposed friend, to come out at night to a car containing his abductors, Lopez was seized, handcuffed, struck, carried to the river, and by threats and violence crossed over the river at an unlawful place for crossing, where, as soon as he came in reach, he was seized by Villareal standing there...