Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 5, 1898

Mr. Hoyt to Mr. Day.

Department of Justice,
Washington, D. C., April 8, 1898.

Sir: I have the honor to report that in pursuance of your letter of instructions, dated January 28, 1898, having reference to the trial of the sheriff of Luzerne County, Pa., and his deputies, on the charge of killing and wounding certain Austro-Hungarian subjects, among others, at Lattimer, near Hazleton, Pa., on the 10th of September last, I proceeded to Harrisburg on January 29 and presented to the governor of Pennsylvania the letter of introduction which you gave me. The governor furnished me with a letter to the president judge of the courts of Luzerne County, to whom I presented myself on the 31st of January, at Wilkesbarre, the county seat of Luzerne County, and by whom I was courteously accorded then and afterwards full opportunity to inform myself of the course of proceedings.

The trial opened February 1 at the court-house at Wilkesbarre. The trial judge was Hon. Stanley Woodward, president judge of the court. The Commonwealth was represented by District Attorney Thomas R. Martin, and by Messrs. John McGahren and John M. Garman, all of Wilkesbarre; and James Scarlett, of Danville, Pa. The defense was represented by Messrs. Henry W. Palmer, formerly attorney-general of the Commonwealth of Pennsylvania; John T. Lenahan, Frank W. Wheaton, and George S. Ferris, of Wilkesbarre; and George H. Troutman and C. W. Kline, of Hazleton. The defendants were James Martin, sheriff, and 68 deputies, whose names are hereto attached on one of the blank forms of indictment in the case. A nolle prosequi was entered as to certain deputies at the beginning of the trial on the ground that the Commonwealth had no evidence to show that these individuals were present at Lattimer, or if present, that they were armed or were connected with the shooting.

The defendants had been brought before two of the judges of the county, sitting as committing magistrates, on September 20, 1897. After a large amount of testimony had been taken on this occasion, they were held under bail to await the action of the grand jury. At the meeting of the grand jury, on October 27, 1897, they were indicted as follows, viz: All the defendants were indicted jointly for murder, with a second count for manslaughter in the case of each man killed; they were also thus indicted jointly in a separate indictment for the felonious wounding of each man wounded, and they were all thus indicted jointly under a third indictment for murder, with a second count for manslaughter, of all the men killed. The indictment selected for trial was one for the murder and manslaughter of one of the victims, Michael, or Mike, Ceslak. This was regarded as a test case, and may dispose of all the indictments, but no conclusion on this point seems to have been reached as yet.

The selection of a jury was completed by the end of the second day. The names of the jurymen are hereto attached.

On February 3, after the arraignment of the defendants, Mr. McGahren opened the case for the prosecution. He stated the contention of the Commonwealth that the defendants are guilty of murder in the first degree; that it is not necessary to show who fired the first shot—all that were present armed, aiding, and abetting are guilty in the eyes of the law; that the strikers had grievances; that they held an orderly meeting and decided to march to Lattimer and ask the men there to assist them in asking their employers for justice; that they went there peaceably, unarmed and in a lawful way, and had the right to do so, and then were shot down by the deputies, who continued to fire for five minutes at the fleeing men. The taking of testimony then began, and continued without intermission, except for the usual adjournments over Sundays and holidays, until March 4, 1898. One hundred and three witnesses were examined for the prosecution and 111 for the defense. The witnesses for the prosecution consisted of strikers who accompanied the march to Lattimer and were present at that place, of bystanders and eyewitnesses of the events leading up to the final conflict, and of various persons—clergymen and others—who saw and attended the dead and wounded after the fatal occurrence. It was not part of the evidence, but the fact appeared to be, from the employment of interpreters in various foreign languages and dialects—Italian, Hungarian, and Polish—and in other ways, that many of these witnesses were foreigners not naturalized, some of them were native-born citizens, and some naturalized citizens.

The story told by the witnesses for the prosecution, when connected, shows the occurrences to have been as follows:

On the evening of September 9, 1897, at Harwood, near Hazleton, a meeting of the strikers was held, at which it was decided to go the next day, peaceably and without any weapons, to Lattimer and ask the men there to go on strike, but not to use force nor to destroy property. At noon the next day about 250 men from Harwocd and other points started from Harwood and marched to West Hazleton, receiving accessions on the way from Crystal Ridge and other surrounding villages. At West Hazleton the sheriff and his deputies met them and told them to disperse. There was some altercation there between the strikers and the sheriff’s posse, and then the strikers took a road to Lattimer which passed along the outskirts of Hazleton. At the same time the deputies boarded the cars of a trolley line running from Hazleton to Lattimer and reached the latter place ahead of the strikers. The deputies lined up at Lattimer in front of a row of houses along and a short distance from the road running into Lattimer from the direction of Hazleton, and when the strikers arrived there the sheriff went forward alone and met them again, his deputies remaining on the side of the road behind him, and once more ordered them to disperse. He seized successively two of the strikers by the coat, and while he was engaged in a scuffle with them and with other strikers who gathered around him one or two shots were heard, but from what source the witnesses (or all but two or three of them) did not definitely say. Then the deputies began to shoot at the strikers, first some scattering shots and then a volley, and the strikers broke and fled. The shooting continued for several minutes while the fleeing strikers were endeavoring to get to cover up the slopes along the road. Many of the witnesses testified that the sheriff informed the strikers at West Hazleton and Lattimer who he was and produced a paper which he stated to be his proclamation, but did not read.

It appeared that the strikers were unarmed; that small clubs which they had previously carried were thrown away on the march between West Hazleton and Lattimer; that they were peaceable and orderly in their conduct on the march; were not riotous either at West Hazleton or Lattimer, and at neither place made an assault upon the sheriff or his deputies, or offered any violence or used threatening language to them.

When the crowd stopped before the sheriff at Lattimer, ten men or more gathered around him, and while he was parleying with them and endeavoring to pull to the side of the road the men whom he seized by the coat, the main body of strikers pushed slowly ahead, and at that point and moment the deputies began to fire.

Witnesses among the strikers testified that they had not stopped or beaten men on the road from Harwood to West Hazleton, and thence to Lattimer, nor compelled men to join their number against their wills; that there were 300 or more in their assemblage; that they only went to Lattimer to have a talk with the men there—to show themselves and induce the Lattimer men by peaceable means to join their strike for more wages. Witnesses also testified to violent language and threatening behavior on the part of the deputies at West Hazleton before the shooting, and again at or near Lattimer after the shooting. The testimony was cumulative that the strikers were peaceable and unarmed, and did not on the march nor at West Hazleton or Lattimer exhibit any such conduct as to justify the volley of the deputies.

Physicians and others testified as to the character and location of the wounds inflicted, and a number of the wounded were put on the stand and exhibited their wounds. Testimony was also offered as to the distance from the deputies of those strikers who were shot and fell while they were running away. On the whole, it appeared that in some instances balls or shots had entered the backs or back portions of the bodies of the killed and wounded, and that some of them had been struck and had fallen at a distance of several hundred feet (300 to 500 feet) from the line of deputies. Various deputies were identified as present, and there was some evidence that the first shot proceeded from the right of the line of deputies; that certain deputies stepped out of the ranks after the volley had been fired and continued firing at the fleeing men. On the whole, however, it appeared that the firing did not continue as long as one minute after the volley. It also appeared, without dispute, that the sheriff was armed with a revolver and the deputies for the most part with Winchester rifles; that the sheriff had drawn his revolver when the crowd surrounded him at Lattimer and had endeavored to discharge it, but without success, although there was some evidence, not well corroborated, however, that he had discharged his revolver there and shot or killed a man.

According to the indictments there were 19 men killed and 38 wounded. The names of the men killed are given on the form of one of the indictments accompanying this report, and the names of the men wounded on a separate paper. Because of the extreme variation in the spelling of Hungarian and Polish names, it is difficult in many cases to trace and identify any given name of the men killed or wounded, as appearing in the indictments and as drawn from other sources. From the best information obtainable, although these facts were not brought out at the trial, it appears that of the men killed 10 were Austrian subjects, and of the men wounded 11 were Austrian subjects, and that as to the balance of the men killed and wounded no authoritative knowledge of their citizenship has yet been ascertained. Lists in accordance with this classification are hereto attached, in which the variation of spelling referred to, as compared with the indictments, will be noticed.

On February 21 the Commonwealth rested. Mr. Ferris opened the case for the defense, claiming that the true story of Lattimer shows a savage assault upon the sheriff and an attack by the mob upon the band of deputies; that the first shots came from the mob as they were charging toward the line of deputies, and from one of their number in the rear of the deputies; that the conduct of the strikers fully justified the volley in order to repel a murderous assault upon the lives of the sheriff and his posse, who did their duty as faithful officers and defenders of the law.

The witnesses for the defense included residents of Harwood, Cranberry, Crystal Ridge, and other surrounding villages, among them many women who were eyewitnesses of the occurrences preceding the final conflict of September 10. The sheriff and certain of the deputies were also placed upon the stand—mine laborers and mechanics, mine bosses and other officials, bystanders, and various spectators of the final conflict. It appeared, without positive proof, that many of these witnesses were American citizens and residents of long standing in the vicinity, and others, whether naturalized or not, were of English, German, or Irish origin, with a few of other nationalities.

Their story shows that for a week or more preceding the 10th of September the people of the region had been kept in a terror-stricken condition, owing to the fact that the employees of one of the mines near Harwood had gone on strike and had induced and compelled the men at other mines to follow them, and had been organizing and assembling marching parties from day to day which proceeded to various mines, colleries, and open workings, and throughout the villages and country generally; compelled men to cease work, drove the workmen away, stopped the engines, went into the houses of laborers and other residents, and by threats of violence compelled men against their wills to join them; carried and used clubs and other weapons, beating and chasing men who did not wish to join them, and driving them to the brush, shooting at them, and conducted themselves on numerous occasions throughout the week preceding September 10 in such a violent, threatening, and lawless manner, in both speech and deed, that the law-abiding and peaceable citizens and residents were alarmed and fearful for their safety and even for their lives.

It also appeared that the sheriff, being appealed to by owners of property for protection on behalf of themselves and their employees, went to Hazleton on September 5, duly constituted a large number of citizens as armed deputies, published and posted, in concert with the sheriffs of Carbon and Schuylkill counties, a proclamation against rioting, and instructed the deputies generally that it was their duty to maintain peace at all hazards, but not to take life unless his life or their lives were in danger.

It also appeared that the sheriff carefully cautioned his men to keep cool upon all occasions, especially when they met bodies of strikers, and that if his life or their lives were in danger at any time, and he was not able for any reason to give suitable commands, including the command to fire, they must proceed in such extremity according to their own discretion under the direction of the leaders whom he had selected.

The deputies were selected by the sheriff, in his legal discretion, with respect to their character as good citizens, and with no consideration of the question whether they were or were not employed by mining or other corporations in the neighborhood.

Between September 5 and 10 the sheriff and some or all of his deputies proceeded about the country as called upon, met on various occasions and at sundry points disorderly bands of strikers proceeding about to the collieries and mines intimidating and stopping the workmen, and successfully dispersed them without any more violent manifestations than some rough language and threats.

On September 10 the sheriff and his posse met the mob, consisting of 400 or 500 men, on their march from Harwood to Lattimer, at West Hazleton, read his proclamation, and commanded them to stop and disperse, arrested one man who refused to stop, passed through the strikers, who handled him somewhat roughly, but after some violent talk on the part of the strikers, refusing to heed his commands and disperse, he did nothing to prevent their march through the outskirts of Hazleton to Lattimer. At the latter place, after lining up the deputies on the side of the road, so as to meet and stop the mob before they reached the breaker, the sheriff went forward and met them, commanded them to stop, asked what they were going to do, to which they replied “Stop Lattimer mines;” and then, upon the sheriff’s proceeding to arrest one of them who spoke riotously, many men in the foremost ranks surged around him, struck him, knocked him down, and tried to take away his revolver which he held in his hand to enforce his commands. He did not intend to shoot unless he was compelled to, and as a matter of fact he did not shoot, although he tried to shoot one man who struck him a blow in the face that sent him to his knees. During this altercation and assault upon him, two of the strikers with revolvers endeavored to shoot him, and one with a knife struck at him.

During these proceedings the main body of strikers moved forward past the crowd around the sheriff and proceeded, according to many witnesses, pursuing their way toward the Lattimer breaker, and according to several witnesses they turned at that moment and moved violently and with shouts toward the deputies.

All of these events happened within a very brief space of time, and just at this point, when the sheriff’s life was in danger and a threatening attack upon the line of deputies had begun, after one or two preliminary shots, the source of which could not be exactly located, though there was evidence showing that they proceeded from the rear of the line of deputies where three of the strikers were located beckoning the main body to come on to the assault upon the deputies, a portion of the line of deputies fired the volley described, but ceased firing within a half minute or thereabouts, and then the deputies, or many of them, proceeded with the sheriff to assist in caring for the wounded and dead.

Witnesses among the deputies and other witnesses testified as to the peril in which the sheriff and his posse stood, that the firing was not continued, that the deputies did not leave the line and step toward the fleeing men and continue to fire, and that they were not violent and threatening after the occurrence, but rendered service in caring for the killed and wounded.

It appeared from the story of the defence that the strikers at West Hazleton as well as Lattimer were violent in their actions and language, as they had been during the series of occurrences leading up to Lattimer, and that the deputies made no threat s and acted coolly and without violence both at West Hazleton and after the shooting. It was not proved generally which among the deputies fired. Most of the deputies examined denied that they had fired; one or two, however, admitted it. It did not appear as to the man for whose death the indictment selected for trial was drawn by whom the shots which killed him were fired.

On Saturday, March 5, 1898, the points of law on behalf of the defendants were submitted to the court and argued by Mr. Wheaton for the defense and Mr. Scarlett for the prosecution. The said points are hereto appended as an addendum to the court’s charge in the case. On March 7 and 8 Messrs. Scarlett for the prosecution, Palmer and Lanahan for the defense, and the district attorney closing the case, summed up to the jury, and upon the same day the court delivered its charge to the jury, a copy of which accompanies this report. After the delivery of the court’s charge the jury retired, and at 10 o’clock the next morning (Wednesday, March 9) rendered a verdict of not guilty on the charge as contained in the indictment as to all the defendants.

The case was earnestly and thoroughly conducted for both the prosecution and defense. The trial, while arousing a great deal of interest throughout that part of the State of Pennsylvania and elsewhere, which led to a large attendance upon the sessions of the court throughout the whole time occupied, was dignified and orderly. There was no evidence of feeling or prejudice on the part of the audience, and the opposing counsel, while keen and earnest in their conduct of the proceedings, fully submitted themselves to the control of the court and the proprieties of the situation. There is no question in my mind that the court ruled fairly as to the admission of evidence and upon the various points arising throughout the trial, nor can it be denied, I think, that the charge of the court was full, fair, and sound, and stated the law as settled by the course of Anglo-Saxon jurisprudence for several hundred years, under statutory as well as under common law, correctly and without failing to do entire justice to the respective contentions of the prosecution and the defense.

The jury was, in my judgment, a representative jury of this country, and was above the average in intelligence and fair-mindedness and in the careful attention which they gave to the proceedings throughout the entire trial.

I am clearly of the opinion that the case was in all respects soberly, properly, and fairly tried, that there was abundant evidence to support the verdict, and that it can not be successfully claimed that under all the circumstances involved the verdict was not a just and righteous one.

Referring to the question of the right of those wounded and the families of those killed to receive indemnity for damages because of the action of the sheriff and his deputies, I am unable to see, considering many clear determinations of the law, how any such claim can be successfully urged in view of the verdict; and I feel well assured that there is no good authority supporting the right to indemnity in the absence of any suit brought or determination rendered Supporting such a right by civil proceedings for damages. It appears to me that the liability of the sheriff and his deputies for damages to those injured must previously be established by civil suit before any larger or other claim could be considered; and that inasmuch as the courts of this country, State and Federal, are freely open to all parties, native and foreign, and that foreigners may elect in such a case to proceed in the Federal courts or the State courts at their pleasure, I can perceive no reason why the foregoing considerations, which are very obvious at this stage of the Lattimer transactions, are not applicable to aliens as well as to citizens. The status as to citizenship of all those killed and wounded at Lattimer has not yet been definitely determined. It was not a question seeking or requiring determination during the trial. If it should be necessary to consider this question carefully no doubt you will give it the attention which it deserves.

In conclusion, after listening to the testimony involved in the proceedings, and after careful study and consideration given to the facts and questions involved, I am of the opinion that the sheriff and his deputies, the legal conservators of the peace, conducted themselves with patience, discretion, and forbearance through the events leading up to the Lattimer fatality; that the conflict there was inevitable (humanely speaking) and could not have been avoided if civil order were to be preserved and obedience to the law enforced; and that under all the circumstances the action of the sheriff and his posse, although fatal and lamentable in its results, was clearly justifiable.

Very respectfully,

Henry M. Hoyt,
Assistant Attorney-General.

In the Court of Quarter Sessions of the Peace in and for the county of Luzerne, Pennsylvania. Sessions 1898.

Luzerne County, ss:

The grand inquest of the Commonwealth of Pennsylvania, inquiring for the county of Luzerne, upon their respective oaths and affirmations do present that

• James Martin,
• Alfred E. Hess,
• Leonard Babcock,
• Robert Tinner,
• Amantes M. Eby,
• Charles Houck,
• Ario P. Piatt, jr.,
• Ario Pardee Piatt,
• T. Milner Morris,
• Frank D. Clark,
• J. Potter Clark,
• Alonzo Dodson,
• Harry Zierdt,
• Charles Beisel,
• John Zierdt,
• Wallace Drum,
• W. J. Douglass,
• John Dougherty,
• John J. Gallagher,
• William Mulhall,
• George E. Ruble,
• Rodger A.M’Shea,
• Samuel J. Gundry,
• Fred A. Sleppy,
• John Cook,
• William Costello,
• William Raught,
• William Siewell,
• John Turner,
• Calvin Pardee, jr.,
• Edward Barton,
• G. P. Bartholomew,
• John W. Crooks, jr.,
• Edward Turnbach,
• Thomas H. Hall,
• Thomas Marsden,
• Schuyler Ridgeway,
• Samuel B. Price,
• R. C. Warriner,
• William Young,
• Harry Deal,
• George Ferry,
• George Trieble,
• W. Isaac Ravert,
• Thomas A. Harris,
• Augustus W. Drake,
• Conrad Zeigler,
• William W. Roth,
• William Berryman,
• Edwin Balliett,
• Louis Long,
• C. Wesley Hall,
• William J. Hill,
• Henry J. Pfaff,
• T. J. Williams,
• William Kulp,
• Curtis W. Doud,
• Joseph W. Stevens,
• William Underwood,
• Robert H. Kay,
• John E. Anderson,
• Harry Polgrain,
• Anthony Moyle,
• Thomas Brown,
• William H. Brown,
• J. W. Bornheisen,
• John L. Salem,
• James Ferry,
• Joseph L. Nichols,
• Charles J. Haen,
• Frank Mumey,
• Samuel Ermold,
• Nick Michael,
• Peter H. James,
• James Osborne,
• Joseph Henry Sobers,
• Henry L. Manley,
• Richard C. Jones,
• A. S. Evert,
• Herbert S. Houck,
• Stephen Jones,
• George W. Fritzinger,
• Craig Anderson,

yoemen, on the tenth day of September, in the year of our Lord one thousand eight hundred and ninety-seven, at the county aforesaid, and within the jurisdiction of this court, in and upon Martin Sherfranic, in the peace of the said Commonwealth then and there being, did make an assault, and him, the said Martin Sherfranic, with the deadly weapons aforesaid did unlawfully and feloniously shoot and wound and cause bodily injury dangerous to life, with the intent him, the said Martin Sherfranic, then and there feloniously, wilfully, of their malice aforethought, to kill and murder, contrary to the form of the act of the general assembly in such case made and provided and against the peace and dignity of the Commonwealth of Pennsylvania.

D. A. Fell, District Attorney.

List of men wounded at Lattimer embraced in indictments for felonious wounding.

• Martin Shefronic,
• Joseph Mackia,
• Bernard Runnel,
• John Dolaney,
• John Yockwatz,
• Caspar Wicneuski,
• John Michlish,
• Adam Lapinski,
• John Contra,
• Thomas Paris,
• Andrew Zabonick,
• John Slavonick,
• George Gasperick,
• John Keesloock,
• Joseph Zespa,
• Anthony Mitchels,
• Frank Fodyns,
• John Perkones,
• Frank Ronnan,
• Andrew Slavonick,
• Caspar Mozgo,
• Caspar Dulass,
• Andrew Meyer,
• John Resha,
• John Bocks,
• Matthew Chia,
• John Postea,
• Joseph Plateck,
• John Paddock,
• Andrew Urban,
• Andrew Konas,
• John Kulick,
• Adolph Zelak,
• Andrew Vismont,
• John Kushock,
• Joseph Zepa,
• Stanley Korniski,
• Constant Mononk.

List from other sources than indictments of Austrians and Hungarians hilled at Lattimer.

• Michael Ceslak,
• Stefan Roskowj anski,
• alias Jurek,
• John Fota,
• Andro Yurczik,
• Wojcich Brzostowsky,
• Anton Adam Zeminski,
• Wojcich Zieba,
• Platek Clemens,
• Stanislaus Zagurski,
• Skreb Joan.

List from other sources than indictments of wounded Austrians and Hungarians.

• Fr. Fagyas,
• Josep Mehki,
• John Dolny,
• Josep Platek,
• Andrej Urban,
• Andrej Hanczur,
• Thomas Pares,
• Fr. Roman,
• Tstvan Juszko,
• John Pusztay,
• Jos. Zapay.

List from other sources than indictments of killed whose citizenship has not “been ascertained.

• John Turnactik,
• Fr. Kadel,
• Mike Listak,
• Anthony Grekos,
• Georg Gamgok,
• Fr. Scracoski,
• John Franko,
• Andreas Natzkolski,
• And two not identified.

List from other sources than indictments of wounded whose citizenship has not been ascertained.

• Stanley Komiski,
• Anthony Mitscula,
• Martin Sterfranic,
• Matthew Chia,
• Const Manonlso,
• Adam Lapenski,
• John Bonko,
• Georg Gasparik,
• John Slabonik,
• Caspar Dulas,
• Andrew Meyer,
• John Kulik,
• Andrew Slabonick,
• John Besha,
• Caspar Mosgar,
• Bernard Rumel,
• John Kleshok,
• John Postia,
• John Contraw,
• John Jackowatz,
• John Michlish,
• Caspar Wisjniewski,
• Andrew Zismont.

Names of the jurymen in the trial of Sheriff Martin and his deputies, Wilkesbarre, Luzerne County, Pa., February 1 to March 9, 1898.

• No. 1. Eli Weaver, laborer, Hunlock Township.
• No. 2. C. R. Shaw, carpenter, Ross Township.
• No. 3. Aaron Follman, ropemaker, Wilkesbarre.
• No. 4. Alfred Stevens, clerk, Wilkesbarre.
• No. 5. A. H. Shields, carpenter, Wilkesbarre.
• No. 6. Herman Gregory, farmer, Huntington Township.
• No. 7. Adam Larvon, tinsmith, Sugarloaf Township.
• No. 8. Jonas B. Oxrider, carpenter, Sugarloaf Township.
• No. 9. D. M. Rood, farmer, Ross Township.
• No. 10. C. C. Ransom, contractor, Plymouth.
• No. 11. H. A. Wolfe, farmer, Ross Township.
• No. 12. A. W. Washburn, carriage maker, Freeland borough.

Court of Oyer and Terminer of Lucerne County

commonwealth v. martin et al.

1. The law of murder, manslaughter, and justifiable homicide in self-defence.

2. The office of sheriff, its origin and history, and herein of the powers and duties of the sheriff, including his right to summon the power of the county or the posse comitatus.

3. The posse comitatus.

4. The nature of riot, and the law of riot.

5. A consideration of the criminal law in reference to the liability of all for the act of one, and its limitations.

6. How a posse comitatus, originally a legal and lawful organization, may become an unlawful assemblage by reason of a subsequent purpose to violate the law.

The charge of the court was delivered March 8, 1898, by Woodward, P. J.

Gentlemen of the jury: We are now rapidly approaching the conclusion of this most prolonged and eventful trial, and looking forward to the repose and rest which to all of us will be most welcome after the arduous labor and intense solicitude which it has entailed. The strain, mental and physical, to which we have been subjected, has been very great, but the burden imposed upon the jury and the weight of responsibility which will rest upon them until the end is reached and the verdict rendered is by far the greatest of all. And I wish at the very outset of my charge to say to you, gentlemen of the jury, what I know will be approved by the learned counsel engaged in the trial, as well as by all careful observers of its progress, that your patient attention, your dignified demeanor, and your constant devotion to your duties under circumstances the most trying have neither escaped our notice nor failed to excite our warmest commendation.

The obligation still resting upon the jury and upon the court is to continue faithful to the high trust imposed upon us respectively, and to exercise the same conscientious care in the performance of the duties remaining to us in the case as has been observed from the time you first took your seats as jurymen up to the present moment. We are to perform these duties as honest men, fearing God, before whom our oaths are recorded, and with perfect loyalty to the law, whose ministers we are.

The defendants, 58 in number, and including the sheriff of the county, stand charged with the murder of Mike Ceslack, on September 10, 1897, at Lattimer, in this county. The deceased died from a gunshot wound inflicted upon the right side of the forehead, fired, as is alleged, by one of the defendants; by which one, however, has not been shown from the evidence in the case. The indictment contains also a second count, charging the crime to be that of voluntary manslaughter. It becomes our duty, therefore, to define to you, gentlemen, the nature of the crimes charged in this indictment, which we now proceed to do.

Murder, as defined by Lord Coke, nearly three hundred years ago, “is where a person of sound memory and discretion unlawfully kills any reasonable creature in being and in the peace of the commonwealth with malice, prepense or aforethought, either express or implied.” At common law the crime of murder embraced all cases where the killing was malicious, although the specific intention to take life was not established. Our Pennsylvania statute of 1794 is a departure from the common law, in that it divides the felony of murder into two grades or classes, known as murder in the first and murder in the second degree, the penalty in the one case being death and in the other imprisonment. This classification is based on the distinction that a deliberate intention to take life must be shown to establish the first, while to prove the second no such specific purpose to kill need be shown. The crucial test of murder is malice.

When it has been made clear by the evidence that a homicide has been committed, and that by the hand of the prisoner on trial for the offense, the first inquiry is this: Was the killing malicious? If it was not malicious, then, although it may have been criminal, it will not be murder. Malice as a legal term has a wider and more comprehensive significance than attaches to its ordinary use. It is an evil intent. In the contemplation of the criminal law an act is said to be malicious when it is wrongfully and intentionally done without just cause or excuse, or when it is a conscious violation of the law to the prejudice of another. It comprehends not only a particular hatred or ill will, but also every case where there is a wicked disposition, hardness of heart, cruelty, recklessness of consequences, or a mind regardless of social obligation and duty, although injury to a particular person may not have been intended. All homicide or unlawful killing is presumed to be malicious—that is, murder of some grade. But the presumption which the law makes in all cases of unlawful killing is that it was murder in the second degree and not in the first. The presumption rises no higher than this without proof. When therefore the Commonwealth asks of a jury a conviction of murder in the first degree, she is bound to satisfy them by evidence, and beyond reasonable doubt, that there was in the mind of the accused when he struck the blow or fired the fatal shot an intention to take life. This proof of purpose and intent, however, need not be direct, express, and positive. It may be inferred by the jury from the facts and circumstances of the case. All murder not of the first is necessarily of the second degree. Murder in the second degree includes all unlawful and malicious killing evincing depravity of heart, but where no intention to kill has been established by the evidence to the satisfaction of the jury and beyond a reasonable doubt.

Manslaughter is the unlawful killing of another without malice, express or implied. Homicide, which would otherwise be murder, is not murder, but manslaughter, if the act by which death is caused is done in the heat of passion caused by provocation without time to cool. Where the killing is without malice, though it be unlawful, it is but manslaughter, for even where the intent to kill is unquestionable, still the killing must be malicious to constitute murder.

As the case on trial, in one aspect of it, may raise the question of justifiable homicide, because homicide in self-defense, I proceed to charge you briefly on that subject. And in doing so I adopt the language of Judge King, an eminent jurist of our own State: “A man may repel force by force in the defense of his person, habitation, or property against one or many who manifestly intend and endeavor, by violence or surprise, to commit a known felony on either. In such a case he is not obliged to retreat, but may pursue his adversary till he finds himself out of danger, and, if in a conflict between them, he happeneth to kill, such killing is justifiable. The right of self-defense in cases of this kind is founded on a law of nature, and is not, nor can be, superseded by any law of society. Where a known felony is attempted upon a person, be it to rob or murder, the party assaulted may repel force by force; and even his servant attendant on him, or any other person present, may interpose for preventing mischief, and if death ensues, the party so interposing will be justified. Here the law of self-defense plainly coincides with the dictates of reason.”

Having now stated to you the law of Pennsylvania in reference to the nature of the crime charged in the indictment, we come naturally to the consideration of the character of the evidence upon which the Commonwealth relies for a conviction of the defendants. And, briefly stated, the theory of the prosecution is this: The defendants constituted an organization known as the sheriff’s posse, but, although thus known, they were not such a posse comitatus as the law contemplates, for the reason, first, that the circumstances and conditions of the case were not such as to justify the sheriff in calling out the posse; second, that even if the case called for action by the sheriff, his method of summoning the deputies was not in accordance with the law; third, that in any event, the action of the sheriff and his posse on September 10, 1897, was not justifiable, but was unnecessary and criminal, and therefore that the killing of the deceased by any one of the members of the posse was in point of law a malicious murder, for which all are equally responsible. I think that these three statements embrace the whole claim of the Commonwealth on the most important branch of this case, in the most condensed form of presentation which can be fairly made.

It therefore now becomes our duty, gentlemen of the jury, to draw your attention to this question: Was there in what is known as the Hazleton region, just prior to September 10, 1897, such a state of disorder and such a danger of riot, involving destruction of life and property, as to justify the action of the sheriff in calling out the posse comitatus? The answer to this question must be made by you in the light of the whole of the vast amount of testimony which has been taken in your hearing, and which must have impressed your minds in one way or the other, and which, in all its aspects, has been so thoroughly and powerfully presented to your consideration by the learned counsel. But before you reach a final decision in your own minds on this question it will be your duty to refer yourselves to certain views of the case founded on the law applicable to the facts; and first among these will be a careful consideration of the nature of the office of sheriff under our form of government, with a view of ascertaining what power and authority is vested in him, and what ought to be the method and manner of exercising it. In other words, what are the powers and what are the duties of the sheriff of a county?

The office of sheriff is recognized in the earliest annals of the English law. It is much older than Magna Charta, and the exact time of its creation is involved in much obscurity. But the place and function of the sheriff is easily determined. He has been for all times the chief officer of his bailiwick. Under all the systems of government which have recognized the law as the supreme rule of action it has been found absolutely necessary to vest in some one person the ultimate power to preserve the peace, to quell disorder, and to suppress riot. And this person is the sheriff. And his power is largely a discretionary one. In a time of great emergency or in a crisis of unusual danger the limits under which his discretion may be exercised have been held by the courts to be without fixed limits. For this reason the military arm of the Government is never raised to suppress civil disorder until the authority of the sheriff has been exhausted in an unsuccessful effort to maintain the peace. The sheriff may avail himself of the services of military organizations. He may order them into his posse, not as soldiers, but as citizens, trained and disciplined for effective service in critical emergencies. The posse comitatus signifies the whole power of the county, and all able-bodied male persons over the age of 15 may be summoned to act as members of it. To disobey the summons of the sheriff is to be guilty of a misdemeanor, and may subject the offender to the punishment of fine and imprisonment. The nature of the posse comitatus and its power is defined by the English statute, Henry V, ch. 8, paragraph 2, where it is said “that the King’s liege people, not being clergymen, women, persons decrepit, or infants under the age of 15, being sufficient to travel, shall be assistance to such justices upon reasonable warning, to ride with them in aid to resist riots, routs, and assemblies, on pain of imprisonment, and to make fine and ransom to the King.” Under this statute the English courts have held (see 1 Hawk., c. 65, paragraphs 11 and 12) “that those who thus attend the justices in order to suppress a riot may take with them such weapons as shall be necessary to enable them to effectually do it, and that they may justify beating, wounding, or even killing such rioters as shall resist or refuse to surrender themselves.” We conclude our charge on this particular branch of this case with a quotation from Lord Coke, which is as follows:

“The sheriff is the custodian of the life of the Republic; because he is, in his county, the principal conservator of the peace. He defends the county against riot, rebellion, or invasion, and to this end may require the assistance of all persons in it who are more than 15 years of age, and who when thus assembled under the sheriff’s command are called the posse comitatus. To refuse to the sheriff the aid which he requires is an offense punishable with fine and imprisonment.”

Having thus called your attention to the nature of the sheriff’s office and his right to assemble the power of the county, and asked you to consider the law on these subjects in connection with the inquiry as to whether James Martin did or did not do his duty in the original summons of the posse comitatus, we now come to the question which may be thus stated, and which bears directly upon the transaction laid in the indictment: Was there or was there not, on the 10th of September, 1897, at and in the neighborhood of Lattimer, a state of disorder either amounting in itself to a riot or threatening to result in producing a riot? On this question the views of the Commonwealth and of the defendants, as represented here by learned counsel, are wide apart. And this makes it the duty of the court to instruct you on what may be called the law of riot.

We have a statute in Pennsylvania, passed in 1705, entitled “An act against riots and rioters.” It reads as follows: “If any persons to the number of three shall meet together with clubs, stones, or any other hurtful weapons to the terror of any of the peaceable people or inhabitants of this province, and shall commit or design to commit violence or injury upon the person or goods of any of the said inhabitants, and shall be convicted thereof, such persons shall be reputed and punished as rioters according to the law of England; and such act or terror or violence or design of violence shall be deemed and accounted a riot.” And the definition in the English law is this:

“Where three or more actually do an unlawful act of violence, either with or without a common cause of quarrel, or even do a lawful act in a violent and tumultuous manner.” A riot is further defined as follows: “A tumultuous disturbance of the peace by three persons or more assembling together of their own authority with an intent mutually to assist one another against anyone who shall oppose them in the execution of some enterprise of a private nature, and afterwards executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.”

It is not my purpose in this charge to enter upon any extended discussion of what are known as strikes, or the right of laboring men to form themselves into organized bodies for the purpose of securing better compensation for their labor. I shall content myself with a brief statement of the law as I find it to be in the statute, and the adjudicated cases. And we say to you, gentlemen, that there is no law, either by statutory enactment or by any decision of our courts, to prevent laboring men from stopping work, and going upon a strike whenever, in their opinion, it is for their interest so to do. Nor is there any law which makes it a conspiracy for working men, in any department of human industry, to combine together and by mutual agreement to refuse employment until there has been brought about a satisfactory adjustment between their employers and themselves upon the points at issue. The liberty of contract is not to be infringed either by the employed or by the employer. As the employer has no right to compel a man to work who does not wish to work, so, also, is it true that the employee has no right to compel his fellow-workman to quit work if he wishes to work. The distinction between the right to strike and the right to compel others to strike is a natural and palpable one, and is approved by the instinctive law of right and wrong, as well as by the statutes and the decisions of the courts. And the compulsion denounced by the law is not alone that which consists in actual physical force, applied by one set of men upon another. It may consist in a course of action tending to overawe, or frighten or stampede a body of men who are anxious to work, as well as in laying a violent hand upon the individual workmen and forcing them by main strength to abandon their employment and unite in a strike. Perhaps the most recent decision of our own supreme court on this subject is that of Newman et al. v. Commonwealth (5 Central Reporter, 497), where it was said that “if the jury believed from the evidence that large bodies of men were collected about the coal works of J. S. Neel and other coal operators * * * by previous arrangement and concerted action with the intention of intimidating the miners working by the presence of great numbers of persons opposed to the course pursued by said working miners, such combination would be unlawful, and all persons engaged would be guilty of conspiracy.” Other decisions to the same effect might be quoted, but we do not consider it necessary to refer to them.

We have thus endeavored, gentlemen, to present to your minds, as briefly as possible, the law of riot in general, as well as the view of that law as applicable to strikes. It will be your province to apply these rules of the law to the facts of this case as you find them to be after a full and fair consideration of the whole volume of the testimony. Your conclusion upon the questions already presented are of the most vital consequence in the ultimate disposition of the main question in this case, viz: Are the defendants guilty or not guilty of either of the offenses charged in the indictment? This will become evident to you as we take the next step in the case.

The defendants, as we again remind you, are all and jointly indicted for the killing of the deceased. The Commonwealth, in the absence of any proof as to who fired the fatal shot, asks for the conviction of all the defendants on the ground that the action of the sheriff’s posse was a criminal action; that the original call for the posse was unnecessary, or even if justifiable, that the subsequent action, and especially the shooting on September 10, can not be justified under the evidence, and that therefore the act of any member of the posse was the act of all the members of it, for which each and every one is equally responsible in the contemplation of the law. This raises another question of law, upon which we now proceed to instruct you; and we say to you that the law is: That where several persons take part in the execution of a criminal purpose all are equally liable for the acts of each, and for the incidental and probable consequences of the joint purpose. An English text writer states the rule in this way: “Although if many came upon an unlawful design and one of the company kill the adverse party in pursuance of that design, all are principals; yet if many come upon a lawful account and one of the company kill another of an adverse party without any particular abetment of the rest to this act of homicide, they are not all guilty that are of the company, but only those that gave the stroke or actually abetted them to do it.”

The question whether the purpose of the sheriff and his posse on the 10th of September, 1897, was a criminal one can not be fairly answered without a comprehensive review of all the facts and occurrences which led up to, and culminated in, the final volley fired by the deputies on that day, and which resulted in the death of the person named in the indictment. The events of the week preceding the 10th are so knit together in the fabric of the case that they can not be considered as entirely independent and separate transactions, but must be regarded as constituting together the history of the case. If the sheriff became satisfied, after careful examination of the situation in and about Hazleton, that the public peace was threatened, that the people were terrorized, and that there was danger of riot if the demonstrations of the men engaged in the strike were allowed to proceed, he had the right as the chief officer of the county to summon a posse to assist him in the preservation of order and in the prevention of riot. For it can not be doubted that the duty of a sheriff is to prevent the danger of disorder as well as to suppress a riot which has become flagrant and destructive. Leaving out of view all the facts on this branch of the case which are controverted, and in reference to which the witnesses differ, it is certainly true that both at West Hazleton and at Lattimer the great body of the strikers failed to obey the sheriff when he ordered them to disperse and insisted on pushing on. Nor can it be doubted that the sheriff had the right, in the exercise of the discretion vested in him by the law, to issue the order. And if it was the right of the sheriff to command the crowd to disperse, then it was the duty of the crowd to obey his command. The right to give the order implies the duty of obedience to the order, and disobedience of it is evidence of a riotous purpose. If I push on when the sheriff orders me to stop, I do so at my peril. Of course this obligation of obedience to the authority of the peace officer of the county is not confined to laboring men. It extends to and embraces all the inhabitants of the county, rich and poor, high and low. A company composed of the most wealthy and most prominent men of a community, if marching upon a public highway at a time or under circumstances which, in the judgment and discretion of the sheriff, rendered such a demonstration dangerous to the public peace, would be bound to disperse if ordered to do so. And compliance with the order should be prompt and complete. If you are satisfied, gentlemen, from the evidence that the purpose of the sheriff and of the posse was to preserve order and prevent a riot, then it would follow that their intent and object was not a criminal or unlawful one, and the rule of the law which makes the act of one the act of all has no application to the facts of this case. If, on the contrary, you are convinced by the evidence that the sheriff was not actuated by a desire and intention to preserve the peace, but that he summoned his posse with the idea of inflicting upon the body of men known in the case as strikers wanton and unnecessary outrage and injury, without reference to their action and conduct—if, in short, his purpose was a base, malicious, and wicked one, then, so far as he was concerned, if they understood his motive and acted with the same intent, the fact of a criminal and unlawful combination would be established, and then all the defendants might be convicted, although the shot which took the life of the deceased was fired by a single one of the defendants. The act of any one would, in that event, be the act of all. If under all the evidence in the case you are not satisfied beyond a reasonable doubt that the sheriff and his posse were impelled by a criminal or unlawful purpose, then the doctrine of the law which the Commonwealth invokes—that where there are many defendants the criminal act of one of them is, under certain circumstances, to be regarded as the criminal act of all—has, as we have already said, no place in this case.

It is claimed by the Commonwealth that after the firing of the volley some one of the defendants left the line of the deputies and continued to shoot at the strikers as they fled to the rear. Some of the witnesses for the prosecution swore that such was the case. But this was strenuously denied by all the witnesses for the defense who were on the ground, and there is no undisputed evidence identifying any one of the defendants as the party implicated in any such movement. We say to you that if the purpose of the posse and of the sheriff was originally a lawful purpose, and one of the deputies, in disobedience of the sheriff’s order in reference to firing, did continue to fire after all necessity for so doing had ceased, then if such person could be identified as the slayer of the deceased he ought to be convicted of one or the other of the offenses charged in this indictment, as the jury might decide.

In every criminal trial there are two rights which belong to the accused, and which attach to him at every stage of it, and in every view of it. These are the presumption of innocence, and the benefit of the reasonable doubt. Under English and American law, and as one of its features which distinguish it from what seems to have been the system of trial in a foreign country, where a criminal case of great interest has proceeded very recently, a person accused of crime is presumed to be innocent. This presumption must be overcome by proof, and by proof which will leave in the minds of the jury no reasonable doubt of guilt. In trials for murder, as in all others of a criminal nature, the defendants are entitled to the benefit of what is known as a reasonable doubt—that is, the feeling of uncertainty as to the guilt of the accused which remains in the mind of an honest man after a full, fair, and conscientious consideration of all the evidence.

I have endeavored in all that has been said up to this point to direct your attention to the principles and rules of law, which it will be your duty to keep constantly in view as you approach the determination of this case. It is the province of the court to expound the law, but it is the duty of the jury to apply the law to the facts as, from the evidence of the case, you find them to be. Wherever I have alluded to the events which preceded, and, as it is alleged, led up to the final scene at Lattimer, I have made the effort to base my statements upon the testimony which is undisputed, rather than upon that which is controverted, or, in plainer words, upon that about which the witnesses disagree.

After a careful examination of all the testimony, I am prepared to say that the most, if not the only, material questions in respect to which the witnesses differ in their statements as to the occurrences at Lattimer are: First, as to the number of men who surrounded the sheriff after his effort to arrest one of the strikers; second, as to the firing—was it continued after the ranks of the strikers had broken and were in retreat, or did it cease when the volley was tired? It is alleged by the Commonwealth that those of the killed and wounded who were shot in the back received their wounds while in the act of running away, and from shots delivered after the main volley had been fired. It is claimed by the defendants that the evidence shows that the firing ended with the volley while the strikers, or some of them at least, were still advancing toward the line of the deputies, and that those of the strikers who received wounds in the back were among those who surrounded the sheriff when he made the arrest and was pushed from the main road to the ditch on one side of it. The orders of the sheriff were not to fire unless he gave the word, or unless his own life was in danger and he was so situated as not to be able to issue an order, or unless the deputies themselves were in danger of losing their own lives by an assault made upon them. The settlement of these disputed points by the jury may be important, as will appear when we come to pass upon the legal points submitted by the counsel for the defense, and for the jury upon the question, whether the posse comitatus, originally a legally constituted body, did or did not become an unlawful assemblage by reason of any subsequent determination to disregard the law and commit crime.

We now say to you that the testimony of the sheriff himself as to what occurred at Lattimer after he went forward to meet the strikers is not in any material particular that we can discover contradicted by the evidence on the part of the Commonwealth. We therefore reproduce a portion of it as taken from the stenographic report, omitting nothing that seems to be material to the main question involved in the case.

“We were running along the bank, and we heard the strikers say, ‘Come on, you s—of b—, we are not afraid of you.’ We ran down the bank, and one or two called me a s—of b—. I read the proclamation. I arrested one man and handed him over to the deputies. They pushed right on by me. Then I pulled out my revolver and asked them to stop again. They didn’t seem to have any system. They were very angry and loud. Some had clubs. I argued with them, saying I was the sheriff, and it was my duty to stop them. They were pushing on, and I called four or five of the deputies to come down, and in response Deputies Cook, Piatt, and Ely came down. They pushed the crowd back with their guns. A number tried to throw stones and to hit me.

“I again advised the crowd to go home, as they might get hurt. Four men seemed to be leaders, one of whom was Egla. They talked about wages, and I said I couldn’t give them wages; ‘I would give you wages if I could.’ Time and again they said they would go to Lattimer. Some said, ‘I am not a citizen, and you can not do anything to me.’ This angered me to some extent, and I did use some strong language. They held a meeting, and it seemed some wanted to go home. I was told they had started for Lattimer, and to that I said I didn’t want to have any more trouble that day. I was tired and weary of marching around. But we finally agreed to go to Lattimer.

“At Farley’s the strikers stopped to hold a consultation. They marched on to Lattimer. We started on, and at Lattimer I said, ‘This will be a good place to stop them.’ The deputies formed in a horseshoe, but I ordered them to stand on the side of the road. I spoke to them again; ordered them to keep cool. I would meet them alone. I can not describe how I felt. I thought something was going to happen. One of the deputies asked if he could go with me. I said no, one was enough to lose his life. I got to the middle of the road. One young fellow in the crowd said ‘s—of b—, no good; go ahead.’ I tried to arrest him, but failed. The crowd surged around me and I thought everybody in that crowd was punching me. One man gave me a terrific blow on the side of the head. I tried to shoot that man, but my pistol would not go off. Then the firing began.

“Q. You say you were on your knees when the firing began?—A. Yes.

“Q. State what you saw.—A. I saw two men with revolvers and one with a knife, who made a lunge at me.

“Q. Were any shot near when you were on your knees?—A. Yes; two or three.

“Q. What did you do when you got up from your knees?—A. I raised my arms.

“Q. What did you do next?—A. I ordered doctors and cars for the wounded. Then I ordered water and bandages.

“Q. Go on.—A. Well, I gave general orders for some of the deputies to stand by their guns, as some of the crowd had not yet dispersed. The crowd had run about 600 yards and stopped. Then, shortly after, they went away.

“Q. You remained to care for the wounded? —A. I did.

“Q. You did not fire your revolver on that occasion?—A. No; it would not go off.

“Q. Is this the revolver?—A. It is.

“Q. Is it loaded?—A. Yes.

“Q. Why would it not go off that day?—A. Can’t say; it may have become useless because of the sweat that got on it.”

What remains to be said upon the law of this case will be submitted in response to the written points submitted by the defendants.

The judge read and passed upon these points one by one, as follows:

1. Affirmed.

2. Affirmed as to the first specification. I decline to affirm the second, as it is too broad.

3. Affirmed.

4. Affirmed, with this qualification, that he does not have to require them to bring arms, but he may require them to do so.

5. Affirmed, with the qualification that “if they conspired,” not “they conspired.”

6. Affirmed.

7. Affirmed as to the original meaning of the posse; beyond that not affirmed.

8. This is a fact for the jury to decide; I decline to affirm it.

9. I decline to affirm it.

10. Affirmed.

11. Affirmed.

12. This is too broad; I decline to affirm it.

13. (a) Affirmed. (b) I decline to affirm, (c) Affirmed.

14. Affirmed.

15. Affirmed.

16. I decline to affirm it, as to do so would be to take the case entirely from the jury. If the jury believe the facts as stated in the trial they can affirm it as a point of law.

In conclusion, gentlemen, you will say by your verdict whether the defendants, or any of them, are guilty or not guilty. If you find all, or any of them, guilty of murder, you will also say whether of murder in the first degree, or of murder in the second degree, or of manslaughter. If you determine to acquit them both of murder and manslaughter, then you will render a general verdict of not guilty. The duty of the court has now been performed and the case is in your hands.

Thomas R. Martin, district attorney; John McGahren, John M. Garman, James Scarlet, P. F. Laughran, for Commonwealth.

Hon. H. W. Palmer, Hon. C. W. Kline, John T. Lenahan, George H. Troutman, George S. Ferris, F. W. Wheaton, George Urquhart, for defendants.

defendants’ points.

Counsel for defendants respectfully request the court to charge the jury as follows:

1. The sheriff is the chief conservator of the public peace within his bailiwick, and is bound, ex officio, to the performance of this duty. For this purpose he may command the posse comitatus, or power of the county, and every male over 15 years is bound to obey this call under pain of fine and imprisonment.

2. In exercising his authority to call out his posse, it is the exclusive duty of the sheriff to determine whether the occasion which demands such action exists. If it is made to appear to him that tumult or riot is threatened, he may make the call. In the determination of this fact he exercises a judicial power, and his judgment can not be examined into and reviewed in ulterior proceedings against him in the light of subsequent events.

3. No particular formality is required on the part of the sheriff in calling out the posse, and no formal method of deputation of the members of the posse need be proven.

4. The sheriff must command every man he summons to bring his arms, and whether commanded or not every man summoned on the sheriff’s posse has the right to come armed.

5. The sheriff’s posse are a lawful assemblage without such positive proof as shall satisfy the mind, beyond a reasonable doubt, that they conspired and combined to do some unlawful act inconsistent with the acts which they were called upon to perform in the line of their duty.

6. Evidence that each one, or particular ones, acted illegally or maliciously is not proof of a conspiracy.

7. There is no evidence in this case which would warrant a finding that the defendants were an unlawful assemblage,

8. The strikers, including Mike Ceslak, the deceased, were an unlawful assemblage; a body of rioters.

9. The question of whether it was necessary to resort to the extreme means of firing on the strikers in order to disperse them, was one of judgment which can not be questioned even though it shall appear that the firing was not necessary, if the judgment was honestly formed and executed.

10. If the jury shall find that the prisoners had reason to believe that the strikers were about to assault them, and that they were in danger of loss of life, or of grievous bodily harm, or of being overpowered, then they had the right to defend themselves by the use of force sufficient to repel the assault.

11. If the jury find that the prisoners honestly believed that they were in danger of being assaulted by the strikers, and of suffering loss of life or grievous bodily harm, or of being overpowered, they had the right to use force sufficient to repel the assault, and they can not be found guilty of any offense under this indictment, even if the jury find that such a belief was unfounded.

12. The evidence, if believed, establishes the fact that at the time Mike Ceslak was killed the prisoners were acting as the posse of the sheriff and under his orders. As such they had the right to use all necessary force, even to the taking of life, to disperse the assembly of strikers, if they refused to disperse after being warned to do so.

13. If any deputy willfully, knowingly, and maliciously continued firing after the necessity for firing had ceased, and did, by such firing, kill Mike Ceslak, he may be found guilty under the indictment; but to convict anyone, the jury must be satisfied beyond a reasonable doubt:

(a) That some person did so fire, and be able to identify the person.

(b) That he did it willfully and maliciously, intending to kill.

(c) That Mike Ceslak was killed by such person.

14. As the testimony does not disclose the identity of any person who fired in the manner described, a conviction of any of the prisoners would not be warranted.

15. Before any of the prisoners can be convicted, the jury must be satisfied beyond a reasonable doubt:

(a) That some one of them had special malice toward the deceased or general malice toward the whole body of strikers and intended unlawfully to kill some one of them without caring which one.

(b) That such malicious-disposed person did in fact fire and kill Mike Ceslak.

(c) That the evidence clearly identifies that particular person.

16. That it appears from the evidence, substantially without dispute, that the prisoners were lawfully aiding the sheriff as a posse, duly appointed at the time Mike Ceslak was killed and that their purpose was to disperse an unlawful assemblage of which the deceased was one; that there was no conspiracy among them to do an unlawful act or to do a lawful act in an unlawful way. Therefore the act of one can not be imputed to the others. Each one is to be held accountable only for what he himself did. The evidence failing to identify the person who shot Mike Ceslak, there can be no conviction under the indictment.