Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-01-22
THE MUSSEL SLOUGH CASE
JUDGE sAwyBR's CHARGE TO
THE JUDY.

formed their DUTY; is now remains tor the
Court to perform its duty, and then 1t will
devolve upon you to perform yours.
It Is the duty of the Court to give you the
law applicable to this case, and it is your
duty to receive it from the Court, and to act
upon it as so given to you. The declaration
of the law is strictly and solely the province
Of the Court, and your functions are simply
to ascertain tbs facts. OF the facts you are
the sole Judges. You are the judges Of the
weight of the testimony, and the eredlhlhty
of tie witnesses, and it is for you from all
the testimony in the case TO determine the
facts, and when you determine the facts it is
your duty TO announce that determination,
whatever your sympathies may be. You
will examine this case fairly, calmly and i'm
partially and declare the result as 1t strikes
your minds from all the testimony In the
case. You will not allow yourselves to be
governed by sympathy, or drawn aside from
the issues by any outside consideration. You
have nothing to do with the punishment
you are simply TO determine the question
whether these parties are guilty or not
guilty Of the offsnse charged. The response
hilitv of the punishment is upon the law and
the Court.
In view of these instructions. gentlemen,
you viii examine the testimony in the case,
for the purpose of ascertaining the facts.
The statute Of the United States provides
that if two or more persons and there
may be but two il two or more persons
conspire to commit any offense against the
United States, and one or more of such par
ties do aay act to effect the object Of the con-
spiracy, all the parties to such conspiracy
shall be liable TO a penalty" etc. That ls
one provision Of the statutes, gentlemen, ana
there Is n charge in this Indictment framed
upon that provision charging these defend
ants, with several other parties who are not
on trial, and others to the Grand Jury I'M
known, with conspiracy. There must be TWO
at least to form conspiracy. Ihe con-
spiracy charged is to commit the offense OF
resisting and obstructing the United States
Marshal in the execution Of the writ set out.
If YOU find that two or more are guilty OF
the conspiracy, then you must find those
guilty as to whom you ind the testimony sui
fcient to justify such verdict.
There is another clause, gentlemen of the
Jury: Every person who knowingly and
willfuily obstrucJs, resists or opposes any cti.
Ger of the United States Ia serving or at
tempting to serve or execute any mesne pro-
cess or warrant, or any rule or order Of the
Court Of the United States or any other legal
or judicial writ or process, or assaults or beats
or wounds an officer duly authorized in serv-
ing or executing any writ, rule, order, process
VI N4Alk-l-, ohALA ~ lStALlol4SNJ WV
Now, gentlemen, there are two charges IN
this indictment; one is that these defendants
with Others conspired to obstruct and resist
the United States Marshal in executing
writ, and doing some act to effect the object
Of that conspiracy; and the other Is in actu-
ally obstructing or resisting the Marshal in
the execution Of the writ. These two offenses
are charged in this indictment, and those are
the questions for you TO examine.
Gentlemen, anything outside OF the ques-
ton as to whether the defendants, or some OF
them, are guilty of conspiring and taking
some measures to carry out the object of the
conspiracy, and of the issue as to whether
there was any obstruction or resistance of the
Marshal in executing the writ is irrelevant 70
this matter. There has been large amount
of testimony introduced here, gentlemen, but
that is introduced simply as bearing upon the
question of conspiracy and intent When
you get beyond that, beyond throwing any
light upon this subject, you are to discard it.
Gentlemen, there was judgment in favor
Of the Southern Pacific Railroad Company
against the two parties, Storer and Brewer,
put in evidence, and a writ of execution
issued upon that judgment. Gentlemen, you
have nothing whatever to do with the merits
of that controversy. The law has appointed
the Courts to settle controversies It does
not allow the parties to determine their own
cases. It provides a Judiciary for the pur-
pose Of inquiIing into and settling legal con-
troversies. When this controversy between
the Southern Pacific Railroad Company and
Storer and Brewer was tried by the Court
and the Judgment entered, that settled the
matter for all time, unless that Judgment
should in some form be set aside. The merits
of the controversy, or as to whether there was
any error in the judgment, is not question
for you to consider it is not before you at
all You are to presume it was settled cor
rectly, until otherwise determined, At all
events. it was so settled, whether correctly or
enormously does not matter, for the purposes
Of this case.
There was but one way of lawfully pre-
venting the execution of that JUDGMENT when
demanded by the plaintiff, and that was by
an appeal to the Supreme Court of the
United States, taken within the proper time,
and in the mode p. escribed by law. If no
appeal ia taken, and the Judgment is not re-
versed, that judgment is just as binding, just
as final as though it were a judgment of the
Supreme Court of the United States; it set
ties tina rights of those parties for all time.
Even ii in the appeal of the three cases chat
were appealed, those judgments should be
reversed, it would in no way affect the judg-
ment The only way of affecting this judy
men5 is to reverse it or set it aside by some
other recognized Judicial proceeding in the
Courts and the Judgment being perfected,
the time for staying proceedings Of appeal
having expired the plaintiff had right to
the execution of that writ, and it was the
duty Of the Government of the United
States, if it required al the force within its
control, to execute that writ, and that judg-
ment; and if the Government should fail to
execute that writ while that Judgment stands
1 AL c.sl
the proper and most Important functions of
the Government, and if il should submit to
the resistance anarchy would necessarily
come.
ANY one who conspires to resist the execu-
ton of that writ commits an otfsnse against
the laws of the United States, and any one
who resists the officers in the execution of
that Judgment and writ commits an offense
against the laws of the United States and
those are the offenses that are charged Ia this
Indictment, and you have simply to inquire
whether those off5nsss have been committed
or not, without reference to any other or any
extraneous questions OF considerations.
Now, gentlemen, conspiracy is: a
combination of two or more persons by some
concerted action to accomplish some criminal
or unlawful purpose" That is the definition
of conspiracy so far as it is applicable to
this case. Z" s combination Of two or more
persons it may be two, but there must be
at least two. and there may be more by
some concerted action to accomplish some
criminal or unlawful purpose"
Now, there is charge here that these de-
PENDANTS, with others, concerted together to
resist the Marshal; that there was con-
certed action; that they conspired together
to resist the Marshal Gentlemen, the evil
dence of conspiracy is generally circumstan-
tial It is not to be supposed that parties
enter into formal written or verbal obliga-
ton, or if they do that. that obligation can
be proven in term. The evidence in proof
of a conspiracy viii, generally, from the ma
ture of the case be circumstantial, though the
common design is the essence of the charge y
that Is, the design entertained by each to per.
form the act at is not necessary to prove
tina. the defendants came together and &C.
tualiy agreed in terms TO have that design
and to pursue it by common means. If it be
proved that the defendants pursued by their
acts the same objects, often by the same
means, one performing one part and another
another part of the same, so as to complete it
with view to the attainment f the same
object, the jury viii be justified in the con-
clusion that they were engaged in con-
spirscy to effect that object"
Now. gentlemen, you are to consider from
the circumstances of this case whether there
was conspiracy to effect this object of re.
sisting the Marshal There is testimony here
tending TO show that there was a combination
of men formed for the purpose of resisting
the Southern Pacific Railroad Company in
the occupation of the lands claimed by it,
and patented to it by the Government, being
The odd sections of land. There is testimony
landing To show that there was a combina.