Tombstone epitaph., 1920-03-28


 acts committed. but this upon lhe matters xated in he offer of proof is a question for the jury.
 The state in taking the position :; does necessarily asumes for- the sake of the argument the truth of the statements made in the offer of proof, and necessarily comedies for the same purpose that the proof will measure up to the offer.
 Laying aside for the moment tn. offer of proof with respect to a con spiracy existing long prior to the acts complained of. the offer of proof as to conditions existing in the War ren district a. the time of the so- called deportation. the purpose and intent of the persons deported. the contemplated destruction of lives and property within that district, she pre- parations to carry out that inten. and the acts and conduct as well as the statements of the persons depor:- ed. present a situation where it can not be said as a matter of law that the rule of necessity cannot be ap- plicable, but rather leaves the ques- ton of the existence of such neces- sity to be determined by the jury as question of fact under proper in structions. If such were the scondi- tions and the citizens of Bisbee bad called in vain upon state and federal authorities for protection against , threatened calamity such as is SC. forth in the offer of proof, it canno: be said as a matter of law that they must sit supinely by and await the destruction of their lives and pro- perty without having the right to take steps to protect themselves. "lt ought not 10 DC necessary to state that the court has nothing to do with questions of fact except to see that they are properly submit ted to the jury. and can neither pass upon nor express any opinion upon the question whether the conditions claimed 10 have existed in the wa-- .ren district in fact existed Many statements were made by counsel in argument in the way of controver.- ting or denying the existence of the situation claimed. and while such arguments may haze been well enough in order that the position of counsel might not be misapprehend- ed and that it might not be thought tud- t4sfr IpfiE-a-H me e-tHS. s.0s. Of the matters claimed, i, is obvious for the purpose of passing upon the questions presented both the state and the court must act upon the as- sumption that the facts stated in the offer of proof will be shown, and tha. the proof when presented will fully measure up to the offer. Nor ought it to be necessary to again state that when a defendant in a criminal case offers to produce evidence in support of claimed defense. such evidence can only be summarily excluded and the defense entirely rejected when 1t clearly appears as a matter of law I':hat the evidence If received could not tend to prove any legal defense. The court does not attempt to say what were or were not the facts sur rounding the act complained of. ncr what conditions existed at the time. It only hclds that upon the.faets set forth in the offer of proof the ques- tion of one of fact for the jury and not one of law for the court.
 50 far the offer of proof made by the defendant has been taken as whole and the questions presented at such length have been considered with reference to that offer taken m it's entirety. But many matters set forth therein may be subject to weli-founded objection. The question of necessity may be governed by the conditions and the situation as they existed at the time of the commis- sion Of the act and immediately prior thereto at the place or in the vici- nifty of the commission of the ac... and evidence as to matters preceding may not be admissible. In cases Ike many of those cited where the claim of necessity existed with respect to |'the destruction or injury property, t