Gandara

The plaintiff in error was convicted of violating the provisions of the Criminal Code, Rev. Stat. § 5286 (vol. 18 USCA § 25). A group of from 20 to 150 armed Yaqui Indians, who had been engaged with several thousand other Yaqui Indians in an insurrection in Mexico, which had been in progress for several years, came to Tucson, Ariz., to secure arms and ammunition and to return to resume hostilities.

Plaintiff in error furnished them arms and ammunition to return to Mexico and to continue their operations against the Mexican government. He contends that, inasmuch as the rebellion was already in progress in Mexico and the Yaqui Indians came to this country for the purpose of securing arms and returning to continue their operations, the expedition did not begin at Tucson, Ariz., nor was it to operate from that place; in short, that the expedition began in Sonora, Mexico, and was to operate there. He relies upon the authority of U. S. v. Trumbull (D. C.) 48 F. 99 , which dealt with the case of a Chilian vessel, the Itata, sent by the Congressional party of Chili to the United States to procure ammunition and supplies for its military force operating in Chili. The plaintiff in error…

I concur in the conclusion reached, but I do not think we should assume as admitted some of the facts stated as the basis thereof. Under the evidence, whether there was to be a military expedition or enterprise carried on from Arizona, or whether there was contemplated any organization in or expedition from the United States at all was an issue of fact. If individual Indians straggled in from Mexico for the purpose of remaining here an indefinite time and procuring ammunition and clothing for themselves with the hope of thereafter returning to Mexico and if defendant thereupon sold to them individually such supplies and did nothing more, it probably would not be contended that he would be guilty of the charge. And had the requested instruction been more carefully qualified to cover such a theory of defense, its refusal I think would constitute error. But the request made was too sweeping. Assuming the existence of all the conditions specified in it, defendant might or might not be guilty of the charge, depending upon the existence or nonexistence of other circumstances which were not excluded by the request. The mere fact that a rebellion or revolt had been in progress prior to…