The San Francisco call., 1906-07-06
COURT SAYS SLAY-
INC OF TILDEN
WAS MURDER.
Continued From Page /, Column 4.

IL the act itself was intended it was
wilfully done and therefore would be
the result of the joint operation OF act
and intent
From this transcript it is clear that
an unlawful homicide was committed
and the only question as to the def
milton of the crime depends on the
presence or absence of malice. II
without malice the crime would be
mansiaughter; if malice was present
(and Ii may be either express or i'm
plied) the crime would be murder, and
if death was intended murder of the
first degree.
The number of shots fred-accord-
ing TO the transcript in this case
might be considered by a jury, or by
magistrate, as evidence tending to
show malice. Consequently 1t cannot
be said that this transcript contains
no evidence tending to show malice;
and the repetition of the shots, as well
as the fact that they were fired from
behind after the vehicle had passed, and
the locations that they struck. is like
wise evidence tending to show an in
tent 10 kill In my opinion, therefore,
1t cannot be said that the evidence is
insufficient to justify the magistrate
in holding that the crime of murder of
the first degree was committed.
QUESTION ONE OF GUILT.
This leaves but one question to de-
termine-aside from the question of
bail-and that is, whether this partic-
ular defendant is shown by the evidence
to be guilty of the crime
"An persons concerned in the COM
mission of a crime, whether they dt-
rectIy commit the act constituting the
offense, or aid and abet in its COM
mission. or who have advised and en-
couraged its commission. are principals
in any crime so committed.
Not only would those who partici-
pated in the unlawful act be guilty of
an unlawful homicide, but the officers
who gave orders would be equally
guilty even though such orders had
emanated from the highest military
authority, for all authority must be
and is subservient to and controlled
by the State law, which is supreme
unless suspended by martial law,
which was not in this instance even
! declared; the State law provides that
/ any person, although not present. who
Aadvises the commission of crime
/ and one who orders, clearly advises
/ is a principal in any crime so COM
mitted.
Looking at this transcript we find
/ that this defendant Joined with and
agreed to aid those in whose company
he was in doing what has been shown
]
rife from those who gave him his or
ders, which he agreed to carry out
/ he promised TO assist those with him
! in executing the instructions given and
agreed to by all in his company If so
whatever any one of them did in carry
/ ing out such instructions was the act
{ of all. and he must be considered as
! having assenteS to IT and by his pres
ence with them, with a loaded gun, to
have aided. abetted and encouraged.
ACTS WE'RE UNLAWFUL.
The instructions agreed to by all
were TO halt passersby, or in other
| words of one of the witnesses, ITO STOP
anybody coming along the street, OIL
going into a house after dark, and see
/ IL they had a right to, and If going in
the wrong direction from where they
lived to turn them around and SEND
I them home"-an unlawful act-and II
/ those halted refused to stop, then to
fire, first in the air and then ito kill.
A part of these illegal orders defend
ant carried out and his presence and
act must be considered as an aiding
and abetting of his co-conspirators in
their illegal acts.
The magistrate therefore was fully
justified in holding all three defend
ants to answer for the crime of muir
der.
"As to the question of bail, If the
homicide was not malicious and in con
sequence manslaughter, bail would bt
a matter of right. / cannot say, how
ever that the homicide was not mali
cious, as the word is understood il
arininal judicature. If malicious, i
would still be a bailable offense un
less clearly murder of the first de-
gree A defendant charged with ar
offense punishable with death cannot
be admitted to bail when the proof Of
his guilt is evident or the presumption
thereof great
FIRES INTO THE AIR.
AS to this particular defendant, car
it be said that the proof of his gull
of murder of the first degree is evi
dent or the presumption thereof great
The evidence shows that he fired bu
one shot, and that in the air. His bul
let did not produce death nor was 4
aimed at the deceased. My experience
in criminal trials convinces me that IL
his case Ono matter what punishment
might be fixed by a jury for his co
defendant) no verdict with the deatl
, penalty fixed could ever be secured
If it could then the new city woulC
. have brought forth a class of Jurors
different from those that 1 have beer
dealing with for the past thirty odC
wears. Unless 1t is clear that such ;
verdict would result he is entitled Il
bail I must therefore fix bail In hi
case and / will Ak the same at $4,000
Just how far-reaching the opinion
of Judge Cook that "the officers wh'
gave orders" are equally guilty will
the defendants will be is a matter o.
conjecture. 1t is hardly probable, how
ever that the prosecution will seek t
reach further than the men directl!
concerned in the killing, though th'
court holds that those who ordered
and advised" were principals in th'
killing In any event ii will suppl!
those that issued the "orders TO kill'
with food for thought ifnot with caus'
for alarm.
CROWD OF YOUTHS OPENS
FIRE UPON A STEAMBOA7