Bisbee daily review., 1920-03-25
MAY SHOW PLOT
 AGAINST ]. 5.
tCoNTINuED FROM PAGE oNE)

(CoNTINUED FROM PAGE ONEO existing in tho Warren District at the time of the so-called deporation, the purpose and intent of the persons de ported, the contemplated destruction or lives and property within that dis trict, the preparations to carry out that intent and the acts and conduct as we'll as the statements of the per sons deported, present a situation where it cannot be said as a matter or law that the rule of necessity can not be applicable, but rather leaves the question of the existence of such necessity to be determined by the jury as a question of fact under prop- CT instructions.
 ''lf such were the conditions
 and the citizens of Bisbee had
 called in vain upon State and
 Federal authorities for protection
 against threatened calamity,
 such as is set forth in the offer
 ot proof, it cannot be said as
 matter of law that they must sit
 supinely by and wait the destruc-
 tion Of their lives and property
 without having the right to take
 steps to protect themselves"
 The court ruled that, although he may have been a member of a posse called by Harry Wheeler. sheriff of Cochise county. at the time of the deportation, this would not legally justify the actions of Wootton should il be shown by the evidence that the deportation was not justified under the law of necessity.
 Considerable authority had been presented by the state, during the last two weeks. to show that from a purely legal standpoint, the men al legged to have taken part in the de- portation had violated the law by ar resting men without warrants and without afterward taking them be- fore a magistrate. This point had never been disputed by the defense. In commenting upon Wheelers part in the transaction, Judge Pattee call ed attention to the fact that the de- fense had not claimed to have taken Fred Brown, the complaining witness against Wootton, before 6 magistrate after his arrest. In supporting the states practically undisputed argu- ment on this purely legal point, the Court said: Neither Wheeler no! any of those associated with him in | the so called deportation can justify l by virtue of official position. but this | is the extent and limit of the rules | stated in the authorities cited by | counsel for the state on that subject | It does not in the least affect the ap- | plication of the rule of necessity. If | that rule be applicable. The right to | act because of necessity, is. as shown | by the authorities before cited. a nat i ural rights vested in the persons or | individuals and cannot be vested in any public officer. Neither Wheeler, | nor his deputies, nor those acting at | his command, could. as officers or as aides to an officer, act under the law of necessity. If they so acted they | must necessarily have acted as indi | viduals and as members Of a com munity, and in so doing they could not avail themselves of any rights that the law gives to an officer nor be subject to liabilities for violation of the duties of officers. Their acts were entirely beyond and outside any official duty, and their right to claim to be excused on the grounds of ne cessity depends upon the exist ence of a situation which would war rant individuals in acting under that rule"
 Tn it's avowal of what it intended to prove in presenting its case which the court considered in preparing his ruling, counsel for the defense alieg es
 That Brown was rot carried
 k.. laEA
 from Cochise county into New
 Mexico, but left this county free
 ly and of his own accord"
 The defense claims that it will
 present evidence to show that
 Bro'. was offered his liberty af-
 ter being placed under arrest in
 Bisbee, but declined these offers
 and voluntarily remained with the
 group Of men sent to Columbus,
 New Mexico.
 Referring to this section of the de defense outline of it's case, Judge Pattee said Tt is obvious that tine matter set for the last paragraph of the statement is a legitimate subject of proof. The statute upon which the formation in this case is based provides that: Every person who fore ibly steals, takes or arrests a person in this state and carries him into another country, state or county. is guilty of Kidnapping.
 "To constitute the offense
 charged the carrying must of ne-
 cessity be forcibe and if the per
 son claimed to have been kidnap-
 ed went voluntarily or without
 the use of force the crime charg-
 ed was not committed. if, there
 fore, the transportation of Brown
 into New Mexico was not of the
 forcible character required by the
 statute in order to constitute the
 crime, but was voluntarily on his
 part, the proof of the crime fails,
 even though the accused might
 have been charged with kidnap-
 ing and transporting Brown from
 Risbee to the hall nark