Tombstone epitaph., 1920-03-28


 had been formed to start the fire would be wholly immaterial So in this case it may be that the claimed conspiracy antedating the conditions. whatever they may have been. in the Warren district at and prior to the so-called deportation, may be entirely outside the evidence legitimately ad- miss,ble. It does not appear clearly that the persons charged with the kidnapping had any knowledge o. such conspiracy or acted upon any information as to its existence. IL was said in one of the cases cited that after-acquired knowledge canno. justify an illegal arrest, and so-call- ed after-acquired knowledge may not be admissible upon the question Of necessity. It may be that the right to act under the stress of necessity must be determined by the condi- tions existing al the time Of the com mission of the act done under such claim of right, and that the proof bearing upon the necessity must be limited to that extent. The question was not discussed by counsel and is tco serious to be passed upon with out such discussion. It would seem, however. that the proof should first show what those conditions were be- fore any evidence could be shown. and after the submission of evidence respecting existing conditions the court would then be in a position to determine whether the other evidence is admissible.
 The questions discussed have been presented before the opening state ment of counsel for the defendan. and bore as well upon his right to make such statement as to the ad- m:sssh:,i;y of the evidence propos- ed to be introduced. The character as>well as the extent of an opening statement of a case to the jury is left much to the discretion of the trial court. and while the right to make such statement is a matter of itations upon that right as in its dis cretion are deemed proper. GU. s. Fidelity & Guaranty Co vs. Postker. 1O2 N. F.. 372). Tc avoid possible prejudices and statement of mat ters which after argument might ba held inadmissible, counsel for the de- fendant will not be permitted to make any statement with reference to the alleged conspiracy existing out side the Warren district, but will confine himsSif to a statement of what he proposed to show with res pect 10 conditions in that district at ard prior to the time Of the socalled deportation, and the acts and conduct of the parties accused and those claimed to have been deported. No prejudice can result should the evi- deuce of conspiracy be held admis- sible, because the jury will undoubt- edly be able to appreciate its scope and purpose, and if admitted 1t will be a subject of discussion by counsel in the closing argument and of the couH in its instructions. But the court is in grave doubt as to the adnissibility of such evidence and will requre therefore the exclusion of all references to it until its ad- instability can be properly deter mined.
 Much las been sald respecting the affect of a mere statement of the matters sought to be shown by the defendant and the prejudice likely 70 arise in tie minds of the jurors from such statement, and the assertion that mere mention of the name of a certain organization will give rise to such feeling on the part of the jurors that a fair consideration O. the evidence cannot be obtained But the court cannot believe that sub s:antial citizens of Cochise County of the character of these empanelled as jurors in this case are so lacking in intelligence or so wanting in appre- ciation of their duties as to be in fluenced by any such matter, or that the fear that verdict will be based on prejudice instead of proof has auy substantial basis.