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The Law of Necessity as Applied in the State of Arizona, Bisbee I.W.W. vs. Deportation Case H.E. Wootton was published shortly after the end of the trial by Star Publishing. Star Publishing was owned by Walter Douglas, president of Phelps Dodge. The Arizona vs. Wootton case was the only state criminal trial held. Wootton was acquitted within less than an hour of jury deliberation.

Excepted here are the front cover, preface, the statements of the jurors after the trial, the statement of the case by the counsel for the defense, and the charge to the jury by the judge. In the trial, jurors found just cause for the deportation, citing the I.W.W.'s threat to the citizens of Bisbee and to the U.S. Government. The punctuation and spelling found in the original document are preserved here.

UA Special Collections H9791 B621 L41.


[Front cover]

LAW OF NECESSITY AS APPLIED IN
STATE OF ARIZONA,
Bisbee I. W. W. vs.
Deportation Case H. E. WOOTTON,
Statement of Case and Offer of Proof by Frank E. Curley, of Tucson, Arizona
Argument on the Law of Necessity by William H. Burgess, of El Paso Texas
Opinion of Judge Samuel L. Pattee
Instruction to jury by Judge Pattee
Verdict
Statement of jurors

[Preface]

PREFACE

The case OF STATE OF ARIZONA vs. H. E. WOOTTON (generally known as the "Bisbee Deportation case") was the result of prosecutions instituted by County Attorney Robert N. French of Cochise County, against several hundred citizens of the Warren District, charging them with the offense of "kidnapping," growing out of the deportation of about eleven hundred I. W. W.'s and sympathizers from the Warren District to Columbus, New Mexico, by the citizens of the Warren District on July 12, 1917.

On account of the disqualification of the judge of the Superior Court of Cochise County, judge Samuel L. Pattee, judge of the Superior Court of Pima County, was, by agreement between counsel for the state and defense, called in and presided at the trial of the case.

At the close of the evidence introduced on behalf of the prosecution, the paramount issue in the case was presented to the Court by counsel for the defense in the form of an offer of proof, or statement of defense, by which the right of a community to defend itself when threatened with an overwhelming peril (known as the law of necessity), was put in issue. Objection was interposed by the County Attorney to the evidence offered and the matter was argued at length. Many days were devoted by the Court to a study of the authorities cited, after which an opinion in writing was delivered and filed by the Court.

Interest in the trial and outcome of this litigation throughout the country, as evidenced by innumerable inquiries and requests for information, has prompted the compilation of the interesting features bearing upon the law of necessity as applied in this case, which includes the state of defense and offer of proof as made by Frank E. Curley, of counsel for defense; argument on law of necessity as applicable to the facts of this case, as made by William H. Burgess, of counsel for defense; opinion of judge Samuel L. Pattee on admissibility of evidence offered; instructions to jury by judge Pattee, and verdict of the jury.

After the close of the trial, members of the jury were interviewed by representatives of the press and each gave out a brief statement expressing his individual views of the case, which appeared in the newspapers at that time. These statements are deemed of interest in this connection and are included herein.

[pp. III – VII, Jurors' statements]

[p. III]

IN THE
SUPERIOR COURT
OF
Cochise County, State of Arizona
STATE OF ARIZONA
Plaintiff.
VS.
H. E. WOOTTON,
Defendant.

We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths do find the Defendant not guilty.

J. 0. CALHOUN, Foreman.

STATEMENTS BY JURORS AFTER THE TRIAL

J. 0. CALHOUN, OF DOUGLAS (Foreman of the jury): "The verdict of the jury is a vindication of the deportation, if not in the legal sense, at least in the moral sense. No man could listen to the evidence adduced during the trial without feeling that the people of Bisbee were in imminent danger, and that, if their fears were ungrounded, yet they were apparently real and pressing. The essence of the law of necessity, as explained and laid down to the jury by Judge Pattee, is that it protects a man in his invasion of the rights of others when his fear for his own safety or welfare is great enough to force him to a drastic step, and this fear does not have to be a fear of really existent dangers but only. of apparent danger when the appearance of that danger is so compelling as to be real to him who views it.

"That all the members of the jury must have had this thought when they made out their first and only ballot is shown, in my estimation,

[p. IV]

by the quickness and unanimity of their decision. As the evidence showed beyond the shadow of doubt, the people of Bisbee, on the morning of July 12, 1917, believed they were in danger, and this belief of danger, outlined on the witness stand, was the background to the facts in the Wootton case-a background that could not be ignored.

" After such a trial under such a judge, and with the thought of the singleness of the decision of the jury, I believe it would be morally wrong for the county attorney's office to bring up another of the deportation cases for trial. Mr. French made a good fight-a fight that he may well be proud of-but the facts were against him, and, in the judgment of all the jurors, I believe, the facts in any other deportation case must be against him also.

"The members of the jury entertain the highest sentiments of esteem for Judge Pattee for his courtesy and his consideration for their comfort and welfare."

"On behalf of the jury I may say they felt the force of the conscientious rulings of the judge. When the people realize that he had nothing to guide him-that he was cutting a trail through an unexplored forest, they will feel their efforts to criticise him adversely must be unavailing, if criticism there be. I think the county was fortunate in having a man of his fair-mindedness and conscientious faithfulness preside as trial judge in the deportation cases. When the waves of partisan feeling run at high tide, and when the souls of men are brought face to face with matters as serious as those arising out of the trouble in Bisbee in 1917, then is the time of calm, deliberate, unbiased judgment to prevail. And when we realize, again, that a trial judge, presiding in such a case, is put in crucible fire - a position which he has not sought but which he could not avoid - it is more than unjust to be critical of his acts."

LEE HOLLAND, OF APACHE: "Behind the presentation of the evidence in the Wootton case, and regardless of the fact that F. W. Brown had elected to be deported, the members of the jury saw that the necessity for the deportation existed. This could not be ignored. The testimony of the witnesses, not only for the defense but also for the prosecution, showed conclusively that Bisbee had become a volcano, liable to burst into eruption without a minute's warning.

[p. V]

Not to consider this fact was as impossible as not to consider the fact that a trial was in progress. Every juryman had this thought. It ran through the whole time of the introduction of evidence, and the ominous quiet, as said by Sheriff Wheeler, had an echo in our minds as the testimony was unfolded.

"I cannot imagine that the district attorney's office will bring up another case. The decision in this one, taken without discussion, was too clear-cut and too positive for its meaning to be misunderstood. The cost of the first trial was undoubtedly excessive, and I believe that the people of Cochise County feel that another trial must simply be a repetition of the first.

"I desire also to say that the impartiality and fairness of Judge Pattee, his clear-cut decisions, and the fact that he never made a decision without stating in the plainest language his reasons for his conclusions, had a great effect upon myself and the other members of the jury. He not only was fair, but he was, in some instances, a most efficient assistant to the prosecution when, in the minds of the jurors, the state was getting beyond its depth."

ANDREW MORTENSON, OF DOUGLAS: "It was shown beyond the possibility of doubt that the people of Bisbee were menaced, and that they took the only step that they believed could furnish relief. As Mr. Burges said, when 1800 men, none of whom had been criminal before, none of whom had been criminal since, arose on the morning of July 12, 1917, to deport more than 1100 of their neighbors, there was a reason behind it, and that reason the jurors could not overlook, no matter what the particular issues were in the Wotton case. I have only the highest consideration for judge Pattee, and believe that his fair-mindedness, his consideration and his logical mind have been the biggest assets in the deportation case."

JOHN JONES, SUNNYSIDE CATTLEMAN: "I went on the jury with only a slight knowledge of what happened over in Bisbee on July 12, 1917. After listening to the evidence presented in the Wootton case I feel that what happened there Was fully justified under the law of necessity. I believe that any unbiased jury would have been convinced that the deportation was the only available means to avert bloodshed and the destruction of property in the Warren District."

[p. VI]

HENRY RICHARDS, POULTRY RAISER NEAR HEREFORD: "It is my opinion that the evidence showed conclusively that the threats of the strikers were not merely idle boasts and the deportation prevented destruction of property and loss of life in the district."

W. L. PATTERSON, BENSON FARMER: "Although I am not certain that the law of necessity applied to Fred W. Brown, I will say that after listening to the evidence of both sides I believe that as a whole the deportation was necessary. The evidence showed, in my opinion, that the citizens of Bisbee only beat the strikers to it by a few days."

Amos GRETTON, DOUGLAS: "There could be no doubt in the mind of any reasonable man that the people of Bisbee were menaced and that they took the only way out of the danger as the necessities of the circumstances held out to them."

FRANK BROWN, OF WILLCOX: "I think the only regret we all had was that we could not settle all the cases with that one ballot. After hearing and considering the evidence from both sides I, for one, feel that Harry Wheeler and the citizens of the Warren District did what they thought was right and necessary."

B. K. RIGGS, ELDORADO CATTLEMAN: "After hearing all the evidence it does not appear to me that without troops the Sheriff and people of Bisbee could have taken any other action than the deportation without serious trouble. I think that we all wished that our one verdict could have spiked the prosecution of all the cases for it looks to me now like further prosecution will mean only the opening of an old sore."

JESSE AMALONG, ELDORADO CATTLEMAN: "We had each cast our vote without knowing how the other fellow wag voting and it certainly was a relief when the votes were checked and we found that all twelve of us had reached the same decision after hearing all the evidence and arguments of both sides. It is too bad that the one case could not have settled the whole thing."

CLIFFORD WEESE, OF SERVOSS: "Although I have served on three juries I bad never beard of the law, of necessity before, but I was convinced, after hearing all of the Wootton case, that such. a law applied to the situation at Bisbee. Even if there had been no question whether or not Brown had the chance to get out of the line

[p. VII]

I think the result would have been the same, at least as f ar as I am concerned."

JESSE N. CURTIS, HAPPY CAMP CANYON: "I certainly was glad when we all agreed on the first ballot. When I went on the jury I knew nothing about the case, but at the end of the trial, after listening to every word said by both sides, I made up my mind that Wootton was not guilty. I don't think any amount of deliberation in the jury room, had we not all agreed, could have altered my decision."

[pp. 1 – 9]

[p. 1]

STATEMENT OF CASE BY FRANK E. CURLEY OF COUNSEL FOR DEFENSE

We expect to prove that in or about the year 1908, a conspiracy was entered into in the United States at that time between William D. Haywood, a man by the name of Vincent St. John and a great many other, running probably into the thousands, but the names of whom are unknown to defendant, by which and by reason of which they conspired feloniously together to overthrow the government of the United States; that it was to defeat the government in the enforcement of its laws and to ultimately do away with it, and to ultimately end and do away with the private ownership of property, and all by force. That it was not the purpose of said conspirators to acquire or deprive the owners of property of their said property by or through any legal or lawful methods or to change the form and structure of the government by or through any legal or lawful methods, but, upon the contrary, it was the purpose of said conspirators to so acquire and to deprive the then and now owners of all private property of their said property and to overthrow and destroy the then and present government and form of government of the United States of America, by force.

We expect to show that in the furtherance of the objects of that conspiracy, those then engaged in it, proceeded to apply the axe at the very roots of civilization in an effort to rob those who could not he reached by an insidious propaganda, of the benefits of a religion, rendering them less immune to the virus of anti-patriotism and antigovernment. That since the creation of said conspiracy, the said conspirators and those who have since joined such conspiracy, and in furtherance of the objects thereof, have, at all times, continuously, down to the present day, consistently and persistently disseminated a propaganda of misrepresentation and falsehood by means of newspapers, circulars, pamphlets, speeches, correspondence and the like, and calculated to, and which did, in the minds of many, create dissatisfaction with and aversion toward all organized government as an institution and the government of the United States in particular and toward those who support the said government and believe in the private ownership of property and possess property in private ownership.

[p. 2]

That some of the methods advocated and employed by said conspirators in the furtherance of the objects of said conspiracy in order to force, intimidate and coerce those into submission who could not be reached through other propaganda, consisted of the continual and persistent use and employment of unlawful, tortuous and forcible means and methods involving threats, assaults, injuries and intimidation and murders upon the persons and injury and destruction of the property of others.

We expect to show that from the time of the creation of said conspiracy down to the 12th day of July, 1917, the said conspirators had, throughout the United States and more particularly in the western states and in the furtherance of the objects of said conspiracy, destroyed private property with a value running into the millions of dollars, and had destroyed many lives.

We expect to show that said conspiracy, from the time of its creation, had grown until its membership and those engaged in the furtherance of the objects of such conspiracy, exceeded on the 12th day of July, 1917, two hundred thousand members.

That in furtherance of the objects of said conspiracy, the said conspirators had, prior to the said 12th day of July, 1917, inaugurated a series of industrial strikes throughout the United States, and especially in the lumber and copper mining districts of the United States, well knowing, as they did during said period well know and intend, that the necessary effect of their so doing would be, as it in fact was, to hinder and delay and in part to prevent the execution of the laws of the United States, and to obstruct and prevent the prosecution by the United States of its war against the Imperial German Government, through interference with the production and manufacture of required articles, namely: munitions, ships, fuel, subsistence supplies, clothing, shelter and equipment required and necessary for the military and naval forces of the United States in carrying on its said war. That one of the purposes of said conspirators in inaugurating and carrying on this series of strikes that I have mentioned, was to discourage and obstruct the prosecution by the United States of the war then existing between the United States and Germany, and to, and which did, prevent, hinder and delay the enforcement of the laws of the United States enacted to authorize

[p. 3]

the President to increase temporarily the military establishment of the United States by diminishing the production of copper, lumber and food supplies, and thereby interfering with the production and manufacture of munitions, ships, supplies and equipment required and necessary for the military and naval forces of the United States, and unless and until the United States should suspend or abandon the operation and enforcement of its laws providing for registration, selection and drafting of persons available 'for military service, and unless and until persons then in custody of the United States for violation of said registration, selection and draft laws be released.

In other words, we expect to show that the demands made upon the copper companies of the Warren District in June, 1917, and just prior to the calling of the strike in said district by the Industrial Workers of the World, commonly known as I W. W.," on or about the 26th day of June, 1917, were not made with the idea or purpose of securing increased wages or better working conditions, but that they were pure and unadulterated bunk concocted and put for-ward by a lot of disloyal, un-American anarchists, who were members of said conspiracy, as a screen behind which to hide their efforts and activities in bringing about the defeat of the United States in its war against Germany and the ultimate overthrow of the United States Government.

We expect to show that what, in July, 1917, and for many years prior thereto, was generally known throughout the State of Arizona and the Southwest generally, as the Warren District in this county, and during all of such period of time, was a copper mining district within which is, and at such times was, situated the City of Bisbee, the towns of Warren, Lowell and Don Luis, and the mines, mining claims and properties, mills and works of the Calumet & Arizona Mining Company, Copper Queen Consolidatted Mining Company the Phelps Dodge Corporation, Shattuck-Arizona Copper Company, the Denn-Arizona Copper Company and many smaller companies. That the population of said Warren District on said July 12, 1917, was in excess of twenty-five thousand people; that the assessed value of the property for the purpose of taxation within that district for the year 1917 was in excess of one hundred million dollars. That substantially, the entire population of said Warren District was on

[p. 4]

said July 12th, 1917, and in fact has always been, either connected with or dependent upon the copper industry of said district and upon the continued operation and production of the said industry for their support and maintenance; that during the year next preceding July 12, 1917, more than one hundred and seventy-five million pounds of copper or more than one-tenth of all the copper produced throughout the world during that period, had been produced from the said Warren District, and that a daily average of more than forty-five hundred men had been engaged in such production.

We expect to show that on or about June 26, 1917, one of these series of 1. W. W. anti-conscription, anti-war and anti-government strikes was called by said conspirators in the Warren District and was being carried on by them on the 12th day of July, 1917, and at the time of the alleged kidnapping complained of in the information filed herein. As I stated before, we expect to show that the so-called Bisbee strike was not called for the purpose of securing better working conditions or higher wages, but was called for the sole purpose of embarrassing and defeating the United States Government in the prosecution of its war against Germany, and as one of its steps in the destruction of the private ownership of property, and that such purposes were admitted by those responsible for and in charge of such strike. We expect to show that the strike in Bisbee was but one of a well planned series of strikes called and then being carried on by said conspirators throughout the United States in an effort to accomplish such purpose.

We expect to show that in the furtherance of the objects of said conspiracy, the said conspirators were, upon the said 12th day of July, 1917, and at the time of the alleged kidnapping complained of in the information herein, gathering in the said Warren District in great numbers and had, just prior to said 12th day of July, 1917, gathered in said Warren District in great numbers, claimed by said conspirators to be in excess of three thousand, for the purpose of destroying the lives and property of persons within said Warren District, including defendant and defendant's wife and children.

We expect to show that in furtherance of the objects of said conspiracy, the said conspirators had, just prior to said 12th day of July, 1917, assaulted and, from time to time, were continuing

[p. 5]

to assault many persons in said Warren District other than said conspirators, and that, prior to said 12th day of July, 1917, had stored and hid out, within said Warren District, large quantities of dynamite and other high explosives for the purpose of destroying the lives and property of persons then within said Warren District other than said conspirators and had threatened to so destroy, and it was the then avowed purpose of said conspirators to so destroy the lives and property of such persons within said Warren District other than said conspirators, upon or immediately following said 12th day of July, 1917.

We expect to show that on the evening of July 11th, 1917, A. S. Embree, one of the said conspirators and one of the recognized leaders of all of said conspirators, and a member of the executive committee in charge of the strike then being so carried on by said conspirators and a man high in the councils and activities of the I. W. W. organization, notified Captain Harry C. Wheeler, then the duly elected, qualified and acting sheriff of Cochise County, and then charged with the duty of protecting the lives and property of the people then within the said Warren District, that he, Embree, would no longer be responsible for the acts and conduct of his men, referring to the others of said conspirators, or words of like import.

We expect to show that said conspirators, just prior to said 12th day of July, 1917, stated that they bad large quantities of firearms and ammunition hid out within the Warren District for the purpose of destroying the lives of persons other than said conspirators in said Warren District.

We expect to show that on the said 12th day of July, 1917, and at the time of the alleged kidnapping as in said information complained of, there was then a reasonable ground on the part of Sheriff Wheeler and those then acting with him, including defendant, to apprehend a design on the part of such conspirators to commit many felonies, namely, a riot as defined by the laws of Arizona, treason as defined by the laws of Arizona, a conspiracy to commit a felony as defined by the laws of Arizona, and a conspiracy to curtail and advocate the curtailment of production in this country of things and products necessary and essential to the prosecution of the war then engaged in between the United States and the Imperial German

[p. 6]

Government, as defined by the laws of the United States, and to do great bodily harm and to destroy the lives and property of persons then within said Warren District other than said conspirators, including defendant and his wife and children. That on said 12th day of July, 1917, there was imminent danger of such design being accomplished.

We expect to show that the threats and conditions heretofore referred to were, just prior to the 12th day of July, 1917, conveyed to Sheriff Wheeler and to those acting with him on the 12th day of July, 1917, including defendant, and at the time of the alleged kidnapping as set out in the information herein by persons in whom he and they had confidence and believed, and that such information was of a character that any reasonably prudent man or set of men was and were justified in believing and acting upon; that acting upon such knowledge and belief then had, Sheriff Wheeler did, just prior to the said 12th day of July, 1917, wire the then Governor of the State of Arizona that he anticipated great property loss and bloodshed and did request the Governor to use his influence to have United States troops sent into the Warren District to take charge of the situation and prevent bloodshed, the said Sheriff then knowing that there were no state troops then available or subject to the orders of the Governor; that the Sheriff also wired those in charge of and empowered with the direction of Federal troops on behalf of the United States Government a similar request, but that on the said 12th day of July, 1917, and at the time of the alleged kidnapping as complained of in the information herein, no troops had been sent into the said Warren District to protect the lives and property of persons then within said district from death and injury then imminent and being threatened by said conspirators.

We expect to show that the accomplishment of the objects and purposes of such conspiracy by said conspirators would not only have resulted in the loss of life and property in the Warren District, but would, as Sheriff Wheeler believed and those acting with him on the 12th day of July, 1917, including defendant, believed at the time of the alleged kidnapping as set out and complained of in the information herein, and as reasonably prudent persons were justified in believing, have resulted in the ultimate defeat of the United States

[p. 7]

Government and its Allies in their war then being carried on against the Imperial German Government.

We expect to show that the jails in this county were inadequate within which to confine the said conspirators or any great number thereof, and that there were no jails within Cochise County where said conspirators could have been so confined; that it was at that time the avowed purpose and policy of said conspirators to allow themselves to be arrested in sufficient numbers to fill the jails and thereby render it impossible to further confine other of said conspirators, and thereby rendering the officers helpless in attempted arrests and in preventing the committing of crimes, and with such information in mind and in view of the threats and avowed policies of said conspirators and their character, Sheriff Wheeler and those acting with him, including defendant, on the said 12th day of July. 1917, and at the time of the alleged kidnapping as set out and complained of in the complaint herein, believed, and as prudent persons were justified in believing that any attempt upon their part to arrest the said conspirators and confine them at any point within Cochise County, would result in greater numbers of said conspirators coming to their aid and in releasing them and would result in the loss of many lives and the ultimate carrying out of the objects and purposes of said conspiracy as heretofore set out.

We expect to show that from the threats made and conditions then existing in the said Warren District and the acts of the said conspirators in acquiring the said dynamite and other high explosives and firearms and ammunition as heretofore detailed, and in view of the fact that great numbers of said conspirators were then and upon the said 12th day of July, 1917, continuing to gather and assemble in the said district in greater numbers 'for the purpose of the accomplishment of the objects of said conspiracy, the said Sheriff and those acting with him on the said 12th day of July, 1917, and at the time of the alleged kidnapping as set out and complained of in the information herein, including the defendant, believed, and as reasonably prudent men were justified in believing, that immediate action was necessary in order to save the lives and property of the persons within the Warren District from destruction at the hands of of said conspirators, that it was necessary that said conspirators be

[p. 8]

immediately removed from the said Warren District and delivered over to some organized authority sufficient in number and sufficiently equipped to not only detain the said conspirators and prevent their return into the said Warren District for the purpose of carrying out the objects of said conspiracy, but also to prevent other members of said conspiracy assembling in great numbers and releasing the said conspirators and enabling them to carry out the objects and purposes of said conspiracy. We expect to show that Sheriff Wheeler and those acting with him as before stated, then believed and were reasonably justified, as prudent men, in believing, that at the time of the alleged kidnapping as complained of and set out in the information herein, there was no other way in which the lives and property of the persons within the said Warren District could be saved from destruction at the hands of said conspirators, unless it would be by destroying the lives of said conspirators, which, in turn, must necessarily have resulted in the destruction of many lives within said Warren District, other than of said conspirators.

We expect to show that Fred W. Brown, the prosecuting witness herein, and being the same Fred W. Brown named in the information herein, on the 12th day of July, 1917, and at the time of the alleged kidnapping as set out and complained of in the information herein, and continuously for a long time prior thereto, was one of said conspirators, and during said period was actively engaged with the other of said conspirators in the furtherance of and in acts carrying out and in endeavoring to accomplish the acts and purposes of said conspiracy.

We expect to show that with all of the matters and things in view that I have heretofore set out, and acting on the belief as heretofore set out, Sheriff Wheeler did, just prior to the alleged kidnapping complained of and set out in the information herein, call to his aid a posse comitatus consisting of more than one thousand of the male citizens of Cochise County, and including defendant, and that he did then lay before the members of such Posse comitatus, including defendant, all of the information and knowledge then had by hint with reference to such conspiracy and which was as heretofore detailed, and did then order the members of said posse comitatus, including defendant, to aid him in the arrest of said conspirators,

[p. 9]

and that the members of said posse comitatus, including defendant, in obedience to such command, and acting upon their said knowledge, information and belief as aforesaid, did aid the Sheriff in the arrest of such conspirators, including the said Fred W. Brown.

We expect to show that immediately following the said arrests and acting upon the information, belief and knowledge as heretofore detailed, the said conspirators were, under the direction of the said Sheriff, then removed from the said Warren 'District and thereafter delivered into custody of troops of the United States of America then stationed at Columbus, New Mexico, and not otherwise, and that said conspirators were received and thereafter detained by said troops of the United States at Columbus, New Mexico.

We expect to show further that said Fred W. Brown was not carried by defendant or anyone else on the said 12th day of July, 1917, or at any other time from the Warren District or from Cochise County into the State of New Mexico as complained of and set out in the information herein, involuntarily or against his will but, on the contrary, we expect to show that the said Fred W. Brown did accompany his co-conspirators from Cochise County, Arizona, into the State of New Mexico on the said 12th day of July, 1917, and at the time of the alleged kidnapping set out and complained of in the information herein, freely and voluntarily and of his own free will.

[pp. 10 – 86, "Argument of William H. Burgess of Counsel for Defense" – not copied here]

[pp. 87 – 104 "Charge to the Jury by Judge Samuel L. Pattee"]:

[p. 87]

CHARGE TO THE JURY

JUDGE PATTEE.

GENTLEMEN OF THE JURY: The defendant, H. E. Wootton, is charged by the information filed in this case with the crime of kidnapping. The information charges in substance that within the County of Cochise and State of Arizona, on the 12th day of July, 1917, the defendant Wootton did forcibly take and arrest one Fred W. Brown and forcibly convey him from the County of Cochise and State of Arizona into the State of New Mexico without having established a claim to him according to the laws of the United States and the State of Arizona. The statute under which this indictment is framed and under which this case is prosecuted is Section 185 of the Penal Code of the State of Arizona, which reads as follows:

"Every person who forcibly steals, takes or arrests any person in this state and carries him into another country, state or county, or into another part of the same county, or who forcibly takes or arrests any person, with a design to take him out of this state, without having established a claim according to the laws of the United States or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like any person to go out of this state, or to be taken or removed therefrom for the purpose and with the intent to sell such person into slavery or involuntary servitude, or otherwise to employ him for his own use, or to the use of another, without the free will and consent of such persuaded person, and every person who, being out of this state, abducts, or takes by force or fraud any person contrary to the laws of the place where such act is committed, and brings, sends, or conveys such person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnapping."

Under this statute to constitute the crime of kidnapping certain things must be proven and these are, (1) that the accused took or arrested another person and carried him into another country, state or county or to another part of the same county. (2) That such taking and conveying into another state, county or country was done forcibly. While the statute denounces other acts as criminal, constituting the crime of kidnapping, so far as this case is concerned the particular acts charged in the information bring into play only the

[p. 88]

portion of the statute which relates to the forcible taking and transportation of another into another state, county or country. The third element of the offense is that the forcible taking and carrying into another state, county or country must be without having established a claim according to the laws of the United 'States or of this state. Establishing a claim means simply the procurement of lawful process for the taking of a person from one state, county or country into another. Various provisions of law have been enacted granting the right under some circumstances to remove a person from one jurisdiction to another for purposes of trial and the issuance of process for that purpose, and when such process has been issued and the steps provided by law have been taken the removal of a person from one county, state or country to another becomes lawful and in such a case it may properly be said that a claim has been established. In this case, however, there is nothing in the evidence to show that any such claim was established nor any right growing out of any regular process of law to transport Mr. Fred W. Brown, the person named in the information, from the State of Arizona to the State of New Mexico and hence that element of the offense is completely proven in this case. In other words the removal of Fred W. Brown from Arizona to New Mexico, if he was removed, was not justified by any claim established under the laws of the United States or of this state and you may treat as conclusively proven the fact that no such claim has been established. So far then as the substance of crime is concerned the things necessary to be proven by the state are that Fred W. Brown was actually taken and carried from the State of Arizona into the State of New Mexico and that such taking and carrying was forcible. That Brown actually went from the County of Cochise in the State of Arizona into the State of New Mexico is not disputed; that he was actually arrested and marched to the place which has been designated in the testimony as the Warren ball park is not disputed and so far as that portion of the journey is concerned there is no serious dispute that he was forcibly taken from Bisbee to the Warren ball park. But the crime charged in the information is not the taking from one part of Cochise County to another, it is not the taking from Bisbee to the Warren ball park, but the taking from the County of Cochise to and into the State of New

[p. 89]

Mexico and hence the guilt or innocence of the accused is to be determined by whether the particular crime charged in the information has been proven. The defendant cannot be convicted of any offense except that particularly charged against him. He cannot be convicted of forcibly taking Brown from one place to another except as particularly specified in the information and hence, though the statute makes it a crime to forcibly take and carry any person from one part of a county to another, that is not the crime here charged and of such a crime the defendant cannot be convicted. It is for you to determine, therefore, whether the defendant forcibly took and carried Brown from some place in this county and state into the State of New Mexico and if this be proven by evidence which satisfies your minds beyond a reasonable doubt then the commission of the offense has been proven unless some matter of defense is established under the rules as I shall present them further in these instructions. But in addition to the actual taking and carrying from this state into the State of New Mexico as alleged in the information the state must also prove that the taking and carrying was forcible. One who voluntarily goes or permits himself to be taken from one state into another is not in law forcibly taken and carried and in such a case the crime of kidnapping is not established. It is incumbent, therefore, upon the state to prove in this case not only that Brown was actually taken and carried from this state into the State of New Mexico, but that he was forcibly so carried and that he did not voluntarily go from the one state to the other. The charge as I have stated is the taking of Brown from this county and state into the State of New Mexico and that such taking and carrying was forcible in character. If at any stage of the proceedings before the taking of Brown into New Mexico he had a reasonable opportunity to withdraw from the body of men then being deported and not go to New Mexico and such opportunity was without unreasonable conditions and he failed to avail himself of such opportunity, but in spite of such opportunity permitted himself to be taken to New Mexico then his going there is to be deemed voluntary and not forcible, unless his failure to avail himself of such opportunity was due to conditions imposed which he was not bound to accept or unless it was induced by fear created by the acts of the defendant and those associated with

[p. 90]

him. If, however, an opportunity was given to Brown to withdraw and to remain within this county and state coupled with the condition that he should assist in the deportation of others or take any part in such deportation such condition was unreasonable provided such deportation was not justified by the law of necessity and Brown was under no obligation to accept it and notwithstanding his failure to accept such condition the subsequent carrying of him into New Mexico would in law be deemed forcible. If, also, such an opportunity was afforded him and he failed to avail himself of it through fear of injury to himself if he should so avail himself of such opportunity and such fear was of a character that would be entertained by a reasonable man and was caused by the acts of the defendant and those associated with him or any of them, and acting upon and through such fears alone Brown failed or refused to avail himself of the opportunity then he would be excused from so failing or neglecting to avail himself and the carrying of him from this county and state into New Mexico would nevertheless be deemed to be forcibly done within the meaning of the statute tinder which this prosecution is brought.

The burden of proof to establish the guilt of the accused and to establish every material allegation of the information and element of the crime charged is upon the state and these matters must be established by evidence which satisfies the minds of the jury beyond a reasonable doubt. It is incumbent, therefore, upon the state to establish not only that Brown was actually taken and carried from this county and state into the State of New Mexico, but also the forcible character of such taking and carrying and if the jury entertain a reasonable doubt whether he was forcibly taken and carried into New Mexico the defendant is entitled to the benefit of such doubt and consequently to a verdict of not guilty. If the evidence leaves in the minds of the jury a reasonable doubt whether the carrying of Brown into New Mexico from this state was voluntary on his part, the defendant is likewise entitled to the benefit of such doubt. But in determining this matter the jury should take into consideration all the facts and circumstances respecting the claimed seizure or arrest and carrying of Brown into New Mexico, for the purpose of determining whether or not in fact he was given an

[p. 91]

opportunity to avoid the removal into New Mexico and whether in fact he refused to avail himself of such opportunity if one was afforded, and whether or not such failure or refusal was caused by the imposing of unreasonable conditions or by fear of injury to himself reasonably entertained, caused by conditions which the defendant and those associated with him had brought about; and if the jury believe beyond a reasonable doubt that even though Brown did have such an opportunity or was afforded such an opportunity to avoid being removed to New Mexico but that the conditions brought about by defendant and those acting with him in what has been termed the deportation were such as to excite the fears of a reasonable man that by availing himself of such an opportunity he might cause serious injury to himself and that Brown entertained such fear and acted solely by reason thereof in refusing to avail himself of the opportunity to avoid such removal or that the offer of such opportunity was coupled with unreasonable conditions as before specified, then the jury should find that the removal of Brown to New Mexico, if lie was so removed, was forcible notwithstanding an opportunity was given him to avoid such removal, and in this connection the jury should consider also the facts and circumstances shown by the evidence with respect to the manner and character of the so-called deportation and whether Brown had information respecting the purpose for which he was arrested or taken into custody and the extent to which such arrest or seizure was to be carried. And if Brown had no knowledge or notice that he was to be removed from the State of Arizona into the State of New Mexico at the time when an opportunity was given him to withdraw from the body of men seized by those conducting the so-called deportation, but believed in good faith that he had been merely arrested upon a charge of some criminal offense and would be given a hearing or trial within this county and state upon such charge, such fact may be considered by the jury in determining whether or not Brown's failure or refusal to avail himself of the opportunity to escape removal to the State of New Mexico, if such opportunity was afforded him, was induced by such belief or whether the same was voluntary on his part. But on the other hand if Brown, having this opportunity before the actual removal into the State of New Mexico without conditions and not

[p. 92]

induced by fear or Injury to himself, elected to be taken to the State of New Mexico and for that reason did not avail himself of such opportunity, then his going was voluntary and such removal to New Mexico did not constitute the crime of kidnapping and upon this point, if the jury entertain a reasonable doubt whether his going was voluntary, the defendant is entitled to the benefit of such doubt and should be acquitted. Naturally, the question just presented in these instructions is the one to be first determined by the jury. You will therefore, first determine from the evidence whether the taking of Brown into New Mexico was forcible or whether he went voluntarily and if after considering the evidence on that subject you entertain a reasonable doubt whether his removal to New Mexico was forcible, you need go no further. If you have a reasonable doubt after a fair and candid consideration of the evidence on that subject whether Brown was forcibly taken into New Mexico or have a reasonable doubt whether he did not go voluntary then it is at once your duty to return a verdict of not guilty without consideration of any other question in the case. But should you believe from the evidence beyond a reasonable doubt that the taking or carrying of Brown into New Mexico was forcible and that he did not go voluntarily, then you will pass to the consideration of the remaining questions in the case.

And in this connection, gentlemen, while the defendant alone is on trial and while he is charged with forcibly taking Brown into New Mexico it is not necessary that he should personally have done all the acts which resulted in Brown's being taken into the latter state. Whenever a number of men act in concert in the commission of an offense, whatever is done by one for the purpose of carrying out the commission of the offense is in law deemed done by all. A statute of this state provides that all persons concerned in the commission of a crime whether it be a felony or a misdemeanor, and whether they directly committed the act constituting the offense or aided and abetted in its commission or not being present have advised and encouraged its commission are principals in a crime so committed. Under this statute, therefore, every person concerned in or who aided or assisted or abetted in or who advised and encouraged the so-called deportation which took place in the Warren District on July

[p. 93]

12th, 1917, is guilty of the crime of kidnapping if such crime was committed. If, therefore, the jury believe that the defendant Wootton took any part in or aided or assisted or abetted or advised and encouraged the taking of Brown and carrying of him into the State of New Mexico then the defendant is responsible for all that was done by any of the persons connected with or engaged in the commission of such act to the same extent as if he had in person committed every one of such acts.

It is not necessary that the taking and carrying of any person from one state to another be for an unlawful purpose or with criminal intent beyond the intent to actually take and carry such person out. The crime is complete whenever one forcibly takes and carries another from this state to another state without having established a claim under the laws of the United States or of this state regardless of the purpose for which said taking and carrying are committed and the only intent necessary to constitute the crime is the intent to actually do the act of taking and carrying such person.

As stated before, gentlemen, should you find from the evidence beyond a reasonable doubt that Brown was forcibly taken and carried from this county and state into the State of New Mexico and that be did not voluntarily go and that the defendant participated or aided arid assisted in any way or to any extent in the taking and carrying of Brown into the State of New Mexico then you will pass to the remaining question in the case. But before discussing the law relating to that question it may be well to refer to a number of matters that have been more or less referred to by counsel or mentioned in the testimony. By the statute of this state and by law irrespective of statute an individual is given the right to defend himself, his person and his property against any unlawful and unwarranted attack by another. This right extends not only to the individual but to any number of individuals arid to a community and in a proper case the people of a community have the same right to defend their persons and property against unwarranted and unlawful attacks as has the single individual. But this case presents no situation calling for the application of that rule of law. The defense of necessity will be referred to and discussed later but the evidence in this case does not show such an attack as would warrant the

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application of the doctrine of self-defense or render self-defense a proper matter for your consideration. You may, therefore, lay aside any question of self-defense as a defense in this case for the simple reason that the evidence does not warrant you in considering that subject. There is no self-defense involved. If the so-called deportation, including the taking and carrying of Brown from this county and state into the State of New Mexico, is excusable it is only under a rule of law which has been referred to by counsel and for want of a better designation will be here referred to as the Law of Necessity. It has been said by an eminent writer that "Necessity is a defense when it is shown that the act charged was done to avoid an evil both serious and irreparable, that there was no other adequate means of escape and that the action was not disproportionate to the evil." This admirable language, gentlemen, sums up in its briefest form the so-called rule of necessity. It is obviously a rule that can be rarely invoked and only successfully invoked under extreme circumstances but when the circumstances are such as to justify its application and the one charged with the crime has acted strictly within such rule it completely excuses an act which would otherwise constitute a criminal offense. The law of necessity simply excuses one when threatened with an overwhelming peril, a peril imminent and immediate and which ordinary means are insufficient to avoid, in taking it upon himself to take such steps as may be necessary to avert the threatened peril even though it involves the invasion of the -rights of others. An individual, a number of persons, or a community which faces threatened destruction of life and property and the peril of such destruction is imminent and immediate and overwhelming may, if necessary to avert such peril, not await an attack or the actual consummation of the threatened destruction in whole or in part but may act affirmatively to avert the threatened peril and if in so doing the rights of others are invaded such invasion is excusable and the one committing the invasion is guilty of no crime. But, necessarily, the evidence claimed to present such a situation should be viewed by the jury with caution and only in the event that such immediate threatened peril is shown and no reasonable means of avoiding it except by commission of the act complained of is shown can the law of necessity be given effect. Before you can find that

[p. 95]

an otherwise unlawful act is excused by reason of the law of necessity you must find from the evidence that the impending danger feared by the defendant was actually present and in operation and the necessity must be based upon the reasonable belief that no other remedy was available under the circumstances. In addition, as stated by the learned author whose words have been quoted, the remedy invoked must not be disproportionate to the evil sought to be averted. The liberty of the citizen is not to be lightly for trivial causes invaded and the forcible removal of one to another state must be based upon real or reasonably apparent necessity for the doing of that particular act. A person may not be deprived of his property or forcibly removed from his place of abode under the plea of necessity unless the threatened danger is so great and immediate as to actually require or appear to a reasonable man under the circumstances to require that such course be taken in order to avert the threatened peril and that such threatened peril is of a character not out of proportion to the invasion of the rights of the citizen. Moreover, the law of necessity cannot justify going beyond real or reasonably apparent necessity. If under such a claim the rights of a citizen are invaded and he be deprived of his property or removed to any distance from his place of abode such act even though excusable in the beginning ceases to be so when the necessity ends and if a lesser degree of invasion of the rights of the citizen is actually or to a reasonable man apparently sufficient to avert the threatened peril, then necessity ceases with a sufficient degree of violation of the rights of another and if such violation be carried further it becomes unlawful and not only becomes unlawful as to the extent to which it is carried further than real or apparent necessity requires, but renders the entire act from its beginning unlawful. Moreover, it is not only real, actual and threatened imminent danger that may justify the application of the law of necessity but a situation apparently of that character so appearing to a man of reasonable care and prudence. And as well may that rule be invoked as an excuse for what would otherwise be a violation of law, where the situation presents to the mind of a reasonable man the apparent danger of such imminent peril as when such real and threatened peril actually exists. And when men act upon such an apparent peril, provided that the appearance is justified

[p. 96]

in the mind of a reasonable man the honest and actual belief that such an imminent threatened, immediate peril exists and he acts upon such belief and upon nothing else, the rule is the same as though such peril actually exists.

So, in this case, if the jury believe that at the time of the so-called deportation there actually existed in the Warren District a real, threatened and actual danger of immediate destruction of life and property or that the appearances were such as to create a belief to that effect in the mind of a reasonable man and that the defendant and those associated with him honestly entertained that belief and acted thereon and in so doing and acting upon such belief invaded the rights of others and deprived others of liberty then a case is presented which calls for the application of the rule of necessity and so far as they invaded the rights of others who were responsible for the creation of such condition or apparent condition and in so far as they only went to the extent of what was actually necessary to avert the threatened peril their acts are in law excused. But if the jury believe that there was no such condition of imminent and threatened destruction of life and property in the Warren District or that conditions were not such as to lead to the belief in the mind of a reasonable man that said imminent and threatened peril existed then the deportation cannot be justified under a claim of necessity. Moreover, if the jury believe notwithstanding any real or apparent condition presenting an imminent and overwhelming peril existed yet if the defendant and those acting with him went beyond what was necessary or in the opinion of a reasonable man would be deemed necessary to avert such peril then likewise they cannot be excused under the pleas of necessity. Nor can the plea of necessity be invoked to justify the invasion of the rights of those who were not responsible for the creation of the condition, if such existed, that either did or reasonably appeared to create a situation of imminent and threatened peril. Necessity would never justify the seizure and removal of one who had no part in the creation of such a condition and it could not warrant under any circumstances the seizure and deportation of one who had no part in creating the condition or apparent condition even if such existed. And so in this case the plea of necessity cannot justify the defendant or any others acting with

[p. 97]

him in seizing or depriving any one not actually participating in the causing of the condition that might lead to the claim of necessity. In this case even though the jury believe that a situation was presented calling for the application of the rule of necessity the seizure and deportation of Brown cannot be justified unless Brown himself was an actual participant or aided and assisted or abetted in the bringing about of the condition that led to the deportation if such condition was one which really or apparently threatened an immediate and overwhelming peril. If, therefore, the jury believe and are satisfied beyond a reasonable doubt that Brown, the person charged with being deported, was in no way responsible for and in no way participated in or aided or assisted or abetted those who brought about such a condition, even though the jury believe such a condition existed, his deportation cannot be justified. I have said, gentlemen, that one may act upon a situation of apparent necessity, but to justify action that must have been the sole reason and basis for the action sought to be excused. One who acts from any other motive than that of actual necessity or apparent necessity based upon a reasonable belief honestly entertained that such condition exists and such belief is induced by a situation which would give rise to such a belief in the mind of a reasonable man cannot justify or excuse his act under the plea of necessity. If he acts from any other motive, no matter what, or for any other purpose than to avert the threatened peril his act is inexcusable and if 'it involves the commission of what would ordinarily be a crime he should be found guilty. So applying these rules to this case it is indisputed that for some time prior to the so-called deportation there existed among the miners or some of them employed by the various companies operating in the Warren District what has been referred to as a strike. The laws of this state recognize the right of employees to strike, that is to collectively cease work. It recognizes their rights to make demands upon their employer, reasonable or otherwise, and recognizes their right to strike if such demands be refused or for any other reason or for no reason at all. Strikes in themselves are lawful. Striking employees have a right to peacefully persuade others to cease work. They have a right to station persons in suitable places to peaceably seek to dissuade others from working. They have the right to do what has

[p. 98]

been referred to as picketing and the laws of this state recognize their right to do so and so long as they are peaceable and seek only by peaceable means to attain the end for which the strike is called and to peaceably dissuade others from working they are entirely within their legal rights. They have no right, however, to resort to force or intimidation either against the employers or their property or against non-striking employees, and intimidation may as well be evidenced by acts and conducts as words. The so-called deportation, if taken as a means for breaking tip or ending the strike, was wholly unlawful. Even though the striking employees may have gone beyond the law and resorted to force and intimidation that alone would not justify their forcible removal from the district. Nor could the character of the employees or any organization of which any of them may have been members in itself justify the deportation. Nor could any disloyalty to this government, even though in time of war, justify the deportation. The rights of the citizens are the same in time of war as in time of peace so far as everyone except the government is concerned and no expressions of disloyalty, no treasonable utterances, no failure to measure up to that standard of patriotism that is the duty of every good American citizen could in itself justify a forcible seizure and removal of even the disloyal from the district in which they were. No membership in any society or organization no matter what its teachings, no matter how pernicious its doctrines, or how un-American its utterances, could justify such deportation. There must have been as before stated such a condition of imminent and threatened peril, real or reasonably apparent, as to be actually imminent, and such threatened destruction of life or property really or apparently imminent as would as before stated excuse the invasion of the rights of others before such condition could furnish an excuse or justification for the seizure and removal of others. But in considering whether such a condition existed in the Warren District the jury are entitled to consider all the facts and circumstances shown by the evidence including the character of those engaged in the strike so far as it may be shown by the evidence, the membership of any of them in any organization, and the character and teachings of that organization, not as justifying or excusing the deportation but as circumstances to be given such weight as under all the evidence the

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jury believe them to be entitled to in determining whether a condition of overwhelming and imminent peril, real or reasonably apparent, existed. For this purpose evidence was admitted concerning the teachings and doctrines of the organization known as the Industrial Workers of the World or more commonly referred to as the I. W. W. The law does not justify the deportation of members of that organization because they are such. The organization and its doctrines are not on trial and the deportation of any member of that organization, irrespective of other conditions, would be as unlawful as that of a non-member. The only purpose for which that evidence can be considered is in determining the character and purpose of the organization and its members as one of the circumstances which may be entitled to more or less weight in determining what was the situation in the Warren District at and immediately preceding the so-called deportation. It is for the jury to determine what the character of that organization was, to what extent the literature read in evidence reflects the teachings and doctrines of the organization itself or the individual views of the several writers and then no matter what conclusion the jury may reach as to the character of that organization and the doctrines as believed in by its members it is no more than a circumstance to be given such weight and only such weight as the jury think it entitled to in connection with all of the other facts and circumstances shown by the evidence in determining what the situation was in the Warren District; and from this and from all other circumstances shown by the evidence, the acts and conduct of the defendant and those acting with him, and of those deported and those acting with them, the jury are to determine what was the situation in the Warren District on and prior to the 12th day of July, 1917. And for the purpose of determining such condition the jury may consider and give whatever weight they may think it is entitled to, no more or no less, to the acts and conduct and sayings of those engaged in the strike or acting in concert with them, of the acts and conduct and sayings of those who conducted the so-called deportation or acting in concert with them, and all the other evidence respecting the conditions in the Warren District and from all the evidence determine whether or not the situation existed at and prior to the so-called deportation which would justify or excuse the defendant

[p. 100]

in acting under the claim of necessity. Another subject may be referred to. Evidence has been given respecting the acts and conduct of the Sheriff of Cochise County and those claiming to be acting as deputies of the Sheriff during the so-called deportation and prior thereto, but neither the defendant or any of those connected with him in the so-called deportation can justify that act upon the theory that either the Sheriff or the defendant or any others acted in the capacity of an officer. The duties of officers of the law, as peace officers, are defined by the statutes of this state and the powers conferred on them as officers are likewise defined by law and beyond the power expressly given by law no officer can go and no act beyond the power conferred upon him by law can be justified and for any act in excess of the power given him by law he may be held criminally and civilly responsible. The powers of an officer given by law do not include the removal of any citizen from this state except in obedience to lawful process issued by competent authority for that purpose. The so-called deportation of a number of people and particularly of Brown, the person mentioned in the information, cannot, therefore, be justified or excused by reason of any claim that the defendant or anyone acting with him was acting as an officer of the law for the preservation of the peace or the protection of lives or property. Whatever might be said as to the question of necessity the act cannot be justified or excused by reason of a claimed acting as officers of the law and if the defendant among the others engaged in conducting the so-called deportation acted upon the belief that lie was performing his duty imposed upon him as the deputy of the Sheriff or as a member of the posse comitatus summoned by the Sheriff, his act cannot be justified. And if such was the motive and purpose and he did not act under the rule of necessity and under circumstances which warranted his acting tinder that rule, his act is inexcusable in law and he should be found guilty of the crime with which he is charged. There is no such thing as an officer acting as such under the rule of necessity. As is said by an eminent court, "This rule pertains to individuals, not to the state. It has no connection with or dependence upon the sovereign power. It is a natural right existing independently of sovereign government. The principle applies as well to personal as to real estate, to houses as to property, in solitude as in a crowded

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city, in a state of nature as in civil society." This right it will be seen, therefore, springs not from statutory law or from any law, but from the natural right every community has to protect itself against threatened and overwhelming peril and when such protection involves that which constitutes the invasion of the rights of others it can only be justified when the situation exists or, under circumstances from which it appears to a reasonable man to exist, which justifies the exercise of this natural right.

That Brown, the person named in the information, was actually taken from this county and state into New Mexico is not disputed. That the defendant to some extent participated in the seizure and removal of Brown into New Mexico is admitted by the accused himself. The questions for the jury, therefore, are these:

1. Was Brown forcibly carried from this county and state into the State of New Mexico or did he go voluntarily?

2. If he did not go voluntarily but was forcibly taken into New Mexico was the act excused by reason of the law of necessity?

And these are questions for the jury and for the jury alone to determine from the evidence.

Every person charged with crime is presumed to be innocent until proven guilty by evidence which satisfies the minds of the jurors of his guilt beyond a reasonable doubt. The burden of proof is always upon the state to satisfy the jury beyond a reasonable doubt of the guilt of the defendant and of every allegation necessary to make up the crime charged. This burden never changes and the presumption of innocence remains with the defendant throughout the trial and until removed by a verdict of guilty at the hands of the jury. The removal of a citizen from this state to another without establishing a claim under the laws of the United States or of this state, that is, without process for that purpose issued pursuant to some law of the United States or of this state, is presumably unlawful and presumptively constitutes the crime of kidnapping, provided the taking and carrying into another state was forcible. The burden is upon the state to prove beyond a reasonable doubt that the taking of Brown from this county and state into the State of New Mexico was done forcibly and that Brown's going was not voluntary, and if the jury entertains a reasonable doubt upon that subject the defendant is

[p. 102]

entitled to the benefit of it and to an acquittal at their hands. On the other hand if they are satisfied beyond a reasonable doubt that the taking of Brown into the State of New Mexico was forcible and not voluntary on his part then it is the duty of the jury to find the defendant guilty of the crime charged unless such act was executed under the rule of necessity. There is no presumption that one who forcibly seizes and carries a person into another state acts under the law of necessity and when such a claim is made the burden is upon the one asserting it, but such burden only goes to this extent, that he must produce such evidence as will raise in the minds of the jury a reasonable doubt whether he did not act under all the circumstances in accordance with the rule of necessity. If the jury after consideration of all the evidence entertain a reasonable doubt whether the defendant and those acting with him were not justified in acting as they did under the law of necessity their duty is always to give the defendant the benefit of such doubt and acquit him, but if they have no reasonable doubt they should return a verdict of guilty. To justify the claim that an act is excused under the law of necessity it must also appear that there was no other available manner of averting the threatened peril and if the jury believe that other and not unlawful means could have been resorted to by which the threatened peril could have been as well averted and that a reasonable man would under all of the circumstances have believed that such other means could as well be adopted the plea of necessity becomes unavailable.

I have stated, gentlemen, that the guilt of the accused and all the things necessary to be proven to constitute the crime charged must be proven by evidence which satisfies your mind beyond a reasonable doubt. A reasonable doubt may arise either from evidence or want of evidence in the case. It is a term difficult to define and definitions or descriptions have usually added little or nothing to the meaning of the term reasonable doubt. It is exactly what its name implies, a reasonable doubt remaining in the minds of the jurors after considering all of the evidence in the case fairly and candidly for the sole purpose of ascertaining the truth. It is not a mere fanciful or a possible doubt but a reasonable doubt. The Supreme Court of this state has adopted and recommended as a part of the charge to be

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given to juries, the definition or description stated years ago by one of the most eminent American judges in this language:

"Then, what is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they can not say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecution. All the presumptions of law, independent of evidence, are in favor of innocence; and every person is presumed to be innocent until he proved guilty. If upon such proof there is reasonable doubt remaining the accused is entitled to the benefit of it by an For it is not sufficient to establish a probability, though . strong one arising from the doctrine of chances, that the fact charged is more likely to be true than to the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it.

You, gentlemen of the jury, are made by law the sole judges of the weight of the evidence and of the credibility of the several witnesses who have testified before you. It is for you and you alone to say what is proven and pot proven in the case. It is for you and you alone to say what weight should be given to the testimony of any witness or what effect should be given to any of the facts and circumstances which you deem proven in the case. The Court cannot aid you by attempting to sum up or discuss the evidence. The constitution and the laws of this state imposes upon trial judges silence upon such subjects and it is for the jury to remember what the evidence was, aided as they will be by the arguments by counsel, to determine what witnesses testified truthfully or otherwise, to determine what facts and circumstances may have been proven in the case, and to give such facts and circumstances such weight as under all the evidence they deem them entitled to. In considering the testimony of a witness and in passing upon the credibility to be given to the testimony of any witness there are certain matters that the jury

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are entitled to take into consideration and that is the manner and appearance of the witness while testifying, the impression made upon the jurors by the witness while testifying whether the testimony of the witness carries with it the impress of truth or otherwise. Other things that may be considered by the jury in determining the weight to be given to the testimony of any witness or the credibility of such witness' testimony are the witness' knowledge or means of knowledge, or lack thereof, of the matters to which he testifies; any reason, if any can be shown, or motive, if any be shown, for giving the testimony that he did; any interest in the result of the case, if any such be shown; and any prejudice or bias displayed by the witness while testifying, if any such were displayed, — generally any other facts and circumstances which the jury may — established by the evidence and which in their judgment bear — or throw any light upon the weight of the testimony or — of credibility to which his testimony is entitled.