Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-01-22

of them say they saw only one the Marshal,
however, said he saw, he thinks, at least half
dozen.
Now, gentlemen, that is not the language
and those are not the acts of persuasion. If
the parties came there and used that Ian
guage, and performed those acts, that is the
language of threats, and these acts are acts OF
menace. The Marshal says they We're stand
/ ing at the time in a circle around him, from
six to twelve feet off. Now if these parties
! drew their pistols in that way upon him in a
| threatening manner, that of itself was an as
| sault: it was an otfense at common law. 1t
was menace it was an obstruction of itself.
| And if those acts took place as stated by him
there and then, and not contradicted by the
! other party, that of itself was an obstruction
| to the Marshal in the execution Of his writ,
| provided ne was there for that purpose and
| Intending to execute the writ.
| Now the fact that he was not on the piece
of land at that moment of time does not
change the aspect of the case. The fact that
he was waiting few moments TO see what
would be the result Of that conference does
not feet the case. Ii he was there for the
purpose of executing that writ, and intending
to execute it, and was menacingly forbidden
to execute the writ, and INSTRUCTED in its ex.
| eeution, they knowing that he was there for
thar purpose, and threatening and menacing
him for the purpose of preventing the eXecu-
ton of the writ, that was resistance within
the meaning of the law at that point, before
any other or further act was performed and
as 1 said before, gentlemen, that is not the
language Of persuasion. And this WAS done,
as all the testimony shows, in very short
time-only few seconds of time or a few
minutes at the outside. Ali of this indicated
purpose which the Marshal would under
stand, and which he had a right to under
stand, as intending to interfere with the exc
cutiou of the writ. The acts themselves
indicated purpose, and the purpose mani
tested by those acts could only be a purpose
of resistance. Now if that was their purpose,
and you are entitled to consider the natural
purport of the acts, you are entitled to con-
slider the outward manifestation of those dec
larations and acts in determining the question
whether what they now say was their pur-
pose was the true purpose or not.
Now then, if they told him he could not
execute those writs if they drew their pis-
tolls upon him and committed an assault by
leyeling them at him. cooked and within a
few feet distant, demanding the surrender of
his arms in menacing manner, and telling
him to consider himself a prisoner, that, l
say, was an assault, foTcible obstruction
within the meaning of the law, and the act of
resistance was made out. And if the purpose
of their coming there-if they came there by
concert as it is evident from their own testi-
mony that thee did-if theJ came there by
concert and with that purpose, that purpose
being an unlawful one, then there was con-
spiracy and you are to determine what that
purpose was from all the circumstances of the
case. Ii they came there simply to persuade,
simply to defend Brewer, if it were necessary,
that would not be unlawful. There WAS moth
ing indicated by the evidence to show that
fant af CafEnGino
Brewer from an unlawful assault on that
morning. They seem to, have come there
IS volunteers there is no testimony tending
to show here that Brewer and Storer had in
vited them TO come there, or desired them to
come and interfere in their affairs they were
there apparently as volunteers, SO far as the
testimony in the case shows. Ii there is any
testimony to the contrary, you will remem'
Der it and give effect TO it, gentlemen, be-
cause only state my impression and you
will take your own recollection OF the testi-
mony, not mine. Brewer had not been dis
turbed in his work. He was still blowing,
according to the testimony. Storer had just
gone out to meet him, after meeting Crow in
friendly conversation. There was nothing
then which had occurred that called upon
them to change that friendly purpose they
now avow, for there was as yet no occasion
for protecting Brewers life. Nothing else
had occurred there, as indicated by the testi-
mony, to require change Of purpose.
Now, then, under the circumstances, if
what they did is an evidence of what their
purpose was, and if they resisted or OBJ
structed the Marshal In the sense which
have described to you, then that is evidence
that their purpose in coming was to do that
thing which they did do, viz: to resist the
Marshal; whether sufficient evidence or not
is question for you to determine from all
the evidence.
If they by concert came there for that pur-
pose, then there was q conspiracy, and if
there was conspiracy then the act of one is
the act of all the conspirators; if there was
not q conspiracy, then the act Of each party
| was an individual set, but if there was re-
sistance in the mode which | have stated,
then all the persons who were present aiding
or abettiug, asserting to or approving of that
resistance, are pa7ficeps crimtniS in the resist
ance, and it is for you to determine who did
aid and abet, who were there present and
asserting. and the fact of their being there
apparently approving, and not interfering or
interposing, il such be the fact is circum-
stance for you to consider 10 determining
whether they were asserting and aiding and
abetting in carrying out their then present
| purpose.
Now, gentlemen, Hart or Crow was there
| TO receive POSSESSION VI bito Iduu OesCrlDeQ IN
the writ from the Marshal. The testimony
shows that Clark was there TO point out the
lands, he being familiar with the locality
They were part of the machinery or agen-
cies that were there to be employed for the
execution of that writ. They were there
rightfally they were there under the protec-
ton of that writ, as much as the Marshal
himself. In order to give possession to Crow
it was necessary that Crow should be there,
and in order to identify the land it was nee
| essary to have some enc familiar with it there
to point it out. They were there as a part of
the machinery of the Marshall part of the
agencies employed-for the purpose of the
execution of that writ, and were as much I'M
der the shield and protection of that writ as
the Marshal himself and any obstruction to
their receiving the possession which the
| Marshal should attempt to give to them
would be an obstruction to the execution of
that writ.
Although the condition Of things which |
have pointed out and supposed here would
make out the offsnse, still we may proceed
further in this matter and consider subse-
| ouent events which the testimony discloses.
Now, there was testimony here tending to
show that Crow had, on various occasions,
made threats against members of the Set.
tiers League. You have heard that tes,i-
mony, gentlemen, and the theory Of the de-
Tense is that these parties anticipated that
Crow would Kill Brewer, and that they came
out, as one OF their purposes, TO prevent that
act. Gentlemen, you have heard the testi.
mony in regard TO those threats One COM
plant was that Grow had at his house arms
aud large number of csrtridges-3e0 car.
| tridges. You are to consider whether or not
that is not entirely consistent with a deter.
mination on his part simply to use them in
self-defense. You have heard testimony az
to midnight marauders tending to show that
midnight marauders in disguise were inquir-
ing for him Crow. The testimony tends tc
show that the enmity was rather more, or as
much at least on the side of the settlers
against him as it was entertained by him
against the settlers. The testimony tends tc
show that there was a large combination
of the settlers having many hundred men.
You are to consider whether Crow would
| be likely to be an assailant against whole
community, or large part of community
of that kind, or whether it is not more likely
that he would confine himself to matters 81
strictly self-defense under such extraordinary
circumstances 1t is for you to consider the
circumstances and to give them such weight
as you think them entitled to, and determine
whether or not all of these threats were moi
entirely applicable on the hypothesis that he
was simply arming himself and carrying his
arms for self-defense, and whether the cduse
for enmity was not as great or greater upor
the other side than upon his. Those things
you ought to consider, and to give such
weight to them as you think they are entitled
to receive in determining the acts and thu
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