People v. Ford

An indictment was returned, September 8, 1913, against the defendant for the murder of E. T. Manwell on the third day of August, 1913, at the county of Yuba. On October 30, 1913, H. D. Suhr was indicted and, still later, November 4, 1913, William Beck and Harry Bagan were jointly indicted, all for the same crime. By stipulation all the defendants were tried jointly. Beck and Bagan were acquitted and Ford and Suhr were convicted of murder in the second degree and each was sentenced to imprisonment for life in the state’s prison. The record in case No. 253 presents the appeal of defendant Ford from the judgment of conviction

1. On November 28, 1913, defendant Ford made a motion “for an order transferring this cause to some convenient county for trial and that some judge other than the Honorable Eugene P. McDaniel hear the same.” The ground of the motion was that the defendant cannot have a fair trial in Tuba County “by reason of the bias and prejudice and high feeling against the said defendant, and that the said judge by reason of bias and prejudice is disqualified from hearing said cause. Said motion will be based upon the affidavit of said defendant Richard Ford.” A like motion was made on behalf of defendant Suhr supported by his affidavit alleging substantially the same facts as were set forth by defendant Ford and both motions were heard at the same time. On behalf of the people counter affidavits of E. B. Stanwood, district attorney, and Eugene P. McDaniel, judge of the superior Court of Tuba County, were read in resistance of the motion. Both motions were denied.

The affidavit of Ford states that Manwell, district attorney, and one Reardon, deputy sheriff of Tuba County, died of gunshot wounds; that Sheriff Voss, a deputy sheriff, and Constable Anderson were beaten and injured; that two of the hoppichers were killed and the arm of a man by the name of Nielsen was shot off by deputy sheriff Daken; that Manwell was widely and favorably known in the county and was a personal friend of Judge McDaniel; that district attorney Stanwood was a personal friend of Manwell and was his assistant district attorney and the present district attorney is a son of Manwell; that said sheriff and Daken and Anderson were very pópular in the county; that, on August 2, 1913, the employees on the Durst hop-ranch, near Wheatland, some twenty-three hundred in number, had protested against the unsanitary and intolerable conditions of the camp, specifying the particulars as to such conditions; that Ford was selected by the hop-pickers as spokesman to present their grievances and, at about 5 o’clock on Sunday, August 3, 1913, said employees were holding a peaceful meeting on said ranch and said sheriff, Anderson, Armstead, Reardon, and others, with Manwell, some of whom were armed, entered said assemblage; that a disturbance ensued and as to the fatal results and the

District Attorney Stanwood made affidavit: That he is well acquainted throughout the county and with the people thereof ; that since said August 3, 1913, he has had charge of the prosecution of defendant, has interviewed witnesses and conducted the investigation up to the present time; that affiant has tried many of the criminal cases and mingled largely with the people of said county “and at no time has affiant discovered or learned of any sentiment or prejudice among the people of Yuba County against any defendant” and affiant, on information and belief, ‘‘ alleges the fact to be that there is in Yuba County, and among the people thereof, no prejudice or bias against said defendant whatsoever” and defendant “can have in said county, before any jury that may be selected, an absolutely fair and impartial trial”; that-there is and was nothing in the relationship between affiant and said Manwell or that existing with his son, or any other reason or cause

Judge McDaniel made affidavit: That Manwell was personally known to and a friend of affiant; that nothing in the acquaintance of affiant with Manwell “in any way affects affiant as such judge and the same in no way produces in the mind of affiant any prejudice toward the defendant in this action; affiant, as such judge, can sit and preside upon the trial of this action as fairly and as unbiased as he could in any criminal action whatsoever; . . affiant has at no time had, nor has he now, any bias or prejudice against defendant either resulting from affiant’s friendship for said Manwell of from his sharing in any general sentiment of the community in said Yuba County, or for any reason or in any way at all; affiant has no knowledge at this time of the existence of any prejudice or feeling among the people or the community in said Yuba County, against defendant”; that nothing in affiant’s acquaintance with and friendship for Sheriff Voss can in any way affect affiant as a judge or will have any bearing on his actions in said case or in any way cause any prejudice or bias in the mind of affiant against defendant; that he has read the affidavit of defendant and that “neither from any matters in said affidavit set out nor for any cause or reason whatsoever does he entertain any bias or prejudice whatsoever against the defendant. ’ ’

There is much in Ford’s affidavit concerning the intimate and friendly relations existing between the district attorney and the judge and the parties named that might be said in almost any criminal case arising in the county. The popularity of an official can hardly be taken as evidence, certainly not as conclusive, that a fair and impartial trial could not be given a defendant who had assaulted or even killed such official. Ordinarily where there is an existing highly inflamed condition of the public mind prejudicial to a person charged with crime, it finds some manifestation through the public press, or by assemblages of the people in the neighborhood of the scene of the crime, and, if general, in other parts of the county. We have here no evidence that the people of Yuba County had, even to a limited extent, shown any feeling of passion or prejudice toward Ford or any of the defendants

A jury was obtained, apparently, without any great delay or difficulty and defendant did not exercise all the peremptory challenges to which he was entitled.

The statement that the case involved the general condition of farm labor and wages in the county carries with it no inference that the subject will in any way cloud the real issues in the case or be likely to prejudice farmers, should any of that class be chosen as jurymen, against the defendant. Besides, the counter affidavits deny that any such issue would be involved and we cannot see that it could have been, as in fact it was not. Nor can we attach significance to the statement that Mr. Durst “is a large landowner, and a very rich man and widely known in Yuba County.” There is no showing that his wealth or that the knowledge of the people of the county had of him could in any way have interfered with defendant’s having a fair and impartial trial.

Without noticing in further detail the averments of Ford’s affidavit, we think such of them as have any essential bearing upon his claim that he could not have a fair and impartial trial in Yuba County or before Judge McDaniel, are substantially controverted in the counter affidavits. The facts presented in a similar motion, in People v. Susser, 132 Cal. 631 , [ 64 Pac. 1095 ], were so very different from the facts here

2. Some questions are discussed in appellant’s brief that may be disposed of before reaching the more important contention—that the evidence is insufficient to justify the verdict. For a proper understanding of defendant’s points now to be noticed, it may be stated that there was no evidence that Ford fired the shot which resulted in Manwell’s death, although the confession of Suhr might give rise to an inference that he may have done so. The contention of defendant is thus stated:

“As it is admitted that neither Ford nor Suhr fired the fatal shot” (we find no such admission as to Suhr), “it was very important to correctly charge as to the illegality of the acts or words from which it was sought to hold them guilty of Manwell’s death. The acts and words we submit should have been pleaded. The question as to their illegality was one of law for the court. The issue of fact was, were the acts done or words spoken, and what was their effect or result?” As we understand defendant’s position, it is that defendant was at most engaged in conducting a strike, which was not an unlawful act, or that if he was committing a trespass it was but a misdemeanor; that whatever his acts or his words spoken which may have led to the killing they should have been alleged and, as his acts and words concerned only an undertaking not unlawful, or if unlawful, was but a misdemeanor, the killing as matter of law must be held not to have been murder in either degree; that unless defendant’s acts and words constituted a felony he could not be held for murder because they resulted in the death of some one and at most his offense would be manslaughter because lacking the essential elements of murder. It is hence contended: 1. That evidence of a conspiracy was not admissible and cannot be considered because the conspiracy was not pleaded; and, 2. That evidence which fell short of showing a conspiracy to commit a felony would not support the verdict. We confess to some difficulty in discovering precisely defendant’s contention but have given it as we understand it. The indictment was for murder and was charged in the language of the statute. We entertain no doubt as to the admissibility of evidence of a conspiracy under such an indictment where the murder was committed while the conspirators were engaged in the

consummation of some other unlawful act. Proof of the conspiracy is not made to establish another and distinct crime— that is, conspiracy as such—but to show the circumstances under which the homicide was committed and that the acts were unlawful in the commission of which the killing resulted. People v. Brown, 59 Cal. 345 , and People v. Kauffman, 152 Cal. 331 , [ 92 Pac. 861 ], were cases (many others might be cited) where the charge was murder and evidence was taken of a conspiracy to do an unlawful act. Upon the question of the responsibility for the acts of the conspirators we conceive the law to be—that where one person unites with one or more other persons in an enterprise to commit an unlawful act, whether a felony or misdemeanor, with the intention to withstand all opposition by force, and is present aiding and abetting the deed, and murder is committed by some one of the party in pursuance of the original design, or the unlawful act results in death, he is guilty as the principal or immediate offender. (State v. Nash, 7 Iowa, 347 , 350; Spies v. People, 122 Ill. 1 , [ 3 Am. St. Rep. 320 , 12 N. E. 865 , 17 N. E. 898 ].) In the Spies case it was said, at page 177 (of 122 Ill.) : “Where persons combine to stand by one another in a breach of the peace, with a general' resolution to resist all opposers, and in the execution of their design, a murder is committed, all of the company are equally principals in the murder though at the time of the act some of them were at such a distance as to be out of view, if the murder be in furtherance of the common design.” At page 225 (of 122 Ill.) it was said: “A man may be guilty of a wrong which he did not specifically intend, if it came naturally, or even accidentally from some specific or general evil purpose. When, therefore, persons combine to do an unlawful thing, if the act of one proceeding according to the common plan terminates in a criminal result, though not the particular result meant, all are liable.” And again: “There might be no special malice against the party slain nor deliberate intention to hurt him; but if the act was committed in prosecution of the original purpose, which was unlawful, the whole party will be involved in the guilt of him who gave the blow. Where there is a conspiracy to accomplish an unlawful purpose, and the means are not specifically agreed upon or understood, each conspirator becomes responsible for the means used by any conspirator in the accomplishment of the purpose in which they

are all at the time engaged. ’ ’ And it was held, in Ruloff v. People, 45 N. Y. 213 , 217: “This general resolution of the confederates need not he proved by direct evidence. It may be inferred from circumstances, by the number, aims and behavior of the parties at or before the scene of action.” (See People v. Donnelly, 143 Cal. 394 , [ 77 Pac. 177 ].)

The principle governing conspiracies is well stated in People v. Brown, 59 Cal. 345 , 352, and, although the conspiracy there was to commit a felony, we do not think that the grade of the crime involved in the conspiracy is material if the act or design is unlawful. It was said, in People v. Kauffman, 152 Cal. 331 , 335, [ 92 Pac. 861 , 862] : “But whether or not the act committed was the ordinary and probable effect of the common design or whether it was a fresh and independent product of the mind of one of the conspirators, outside of, or foreign to, the common design, is a question of fact for the jury (citing cases), and if there be evidence to support the finding of the jury on this question its determination is conclusive.”

It was not the theory of the prosecution, as claimed by defendant, “that every labor leader is responsible for all the acts of striking workmen, and that each labor leader can be tried under an indictment baldly stating that the said labor leader has personally done a specific thing, in this case murder, whereas, in fact, it is sought to hold him responsible for the act of another.” The theory of the prosecution was that Ford, as the leader in this instance, was engaged in the unlawful act of resisting arrest by a peace officer armed with a lawful warrant and that by his words and acts he incited the persons then under his leadership to aid and assist him in such unlawful act and that Manwell met his death through the act of one or more of these conspirators thereunto induced by Ford. Appellant cites subdivision 2, section 192 of the Penal Code and People v. Munn, 65 Cal. 215 , [ 3 Pac. 653 ], to show that instruction numbered 48, presently to be noticed, was incorrect, and to establish the proposition that the killing of Manwell was, at most, but manslaughter. The section of the code defines involuntary manslaughter to be—“in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” In the Munn case “the defendant was eon

This instruction is taken from a statement of “the rules of law governing the criminal liability of each of several parties engaging in an unlawful conspiracy or combination, ’ ’ said by the supreme court, in People v. Kauffman, 152 Cal. 331 , 334, [ 92 Pac. 861 , 862], to be “an apt statement of them (the rules), abundantly supported by authority,” and found in 8 Cyc. 641. Appellant replies that in the Kauffman case the conspiracy was to commit a felony—robbery—and hence the case does not apply here. Appellant’s error is in assuming that a distinction is made between conspiracies to commit misdemeanors and conspiracies to commit felonies. In short, his position is—that a homicide perpetrated in furtherance of a conspiracy to commit a felony is murder but that a homicide perpetrated in furtherance of a conspiracy to commit a breach of the peace, or to resist an officer in the dis

“I charge you as matter of law that a strike is lawful.”

“I charge you as matter of law that a boycott is lawful.”

“I charge you as matter of law that one or more men have a right to quit work for any reason, or no reason, or a frivolous reason, singly or in a body, and peaceably to picket, and peaceably to request or persuade others to do so, and to request others to assist them in so persuading and so picketing. ’ ’

It is urged that under the instructions given the jury might have assumed that striking or picketing or boycotting was an unlawful act, and to prevent such assumption by the jury defendant was entitled to have the instructions given. There was no evidence that the killing occurred while the conspirators were in the act of striking, picketing, or boycotting. There was evidence that many of the hop-pickers quit work Sunday morning—on their part a strike; that a boycott was declared and was in operation early in the day against certain businesses being carried on in the camp—a store, a restaurant, a near-beer booth and a shooting gallery.

Manwell was killed at a meeting of hop-pickers held about five o’clock-of that day under circumstances which will hereinafter be more fully set forth. Suffice it at this point to say that while it may be assumed that the hop-pickers were assembled at this meeting originally to consider or talk over their grievances, it soon, under the leadership of Ford, took on altogether a different complexion. He made it known to the people that tire officers of the law were approaching with an intention to arrest him and he called upon his followers to stand by him and prevent his being taken. This they did promptly upon the coming of the officers into their midst and there quickly followed not only Manwell’s death but other tragic and fatal happenings which showed that the sole purpose of the actors was to prevent Ford’s arrest at all hazards. The tragedy may be said to have remotely had its orgin in the strike—that is, if there had been no strike there might have been no officers there and 'no occasion for their being there. But so far as the strike and the occurrences of the earlier

Appellant presents a still further phase of this contention. He says that the verdict acquitted him of murder in the first degree; that there is no evidence warranting a conviction of manslaughter and hence there remained only murder of the second degree of which he could have been convicted, but “that the only possible justification for a verdict of murder, in the second degree would have been evidence that Manwell was killed in the perpetration or attempt to pertetrate some felony other than arson, rape, robbery, burglary or mayhem, but there is absolutely no evidence of any perpetration, or attempted perpetration of any felony whatsoever.” The answer to this view of the law seems to be quite obvious. Murder in the first degree is specifically defined “and all other kinds of murders are of the second degree.” (Pen. Code, sec. 189.) Manslaughter is not any kind of murder. So there must be murders which are not murders in the first degree. “Murder is the unlawful killing of a human being, with malice aforethought.” (Pen. Code, sec. 187.) Any unlawful killing of a human being with malice aforethought is murder. The degree has nothing to do with the definition. But “such malice may be express or implied. ... It is implied, when no considerable provocation appears.” (Pen. Code, sec. 188.) If, then, the killing of Manwell was done in the absence of “considerable provocation,” malice is implied and we have the very case provided for by the statute. It will be observed that the statute makes no distinction between cases where the killing was in the perpetration of á misdemeanor and of a felony; it says “all other kinds of murder are of the second degree”; that is, the unlawful killing of a human being with malice (express or implied) aforethought is murder, and the killing is equally unlawful whether done in the perpetration of a misdemeanor or felony.

3. It appears that, on Sunday, August 3,1913, there were at the Durst ranch, near Wheatland, about two thousand or twenty-five hundred people, of several different nationalities, men, women, and children, gathered there to pick hops; the

Much testimony was admitted describing, in detail the conditions existing at the Durst hop-fields. We do not think it necessary to set out this testimony. It showed a situation calling for some radical reform measures in order to make it a desirable place for such numbers of people to work, both in respect of their moral and physical well-being. Bad as these conditions were, however, they furnished no justifica

A large number of witnesses, both for the prosecution and defense, testified to their recollection of what they saw and heard after the sheriff’s posse arrived, and, as is not unusual, there was some conflict in this testimony. It was not clearly or satisfactorily shown who killed Manwell or Reardon or who shot Constable Anderson. Defendant claims that Manwell was shot by a hop-picker known as the Porto Rican with the gun he knocked out of Anderson’s hand—a witness so testified. But if such was the fact it does not relieve defendant from his responsibility, for the Porto Rican was one of the confederates, all of whom, who were engaged in the original design, were equally guilty. Many details were brought out corroborative of the testimony given by Voss, Anderson, and Daken and some important facts not seen by either Voss or Anderson, who were down at an early stage of the fray. It is not necessary to go further into this phase of the case. It was clearly shown that the two officers were killed and Sheriff Voss and Constable Anderson beaten down into insensibility, the latter also shot and seriously wounded, by persons in the crowd which Ford had around him, and by persons who, as we think will appear from the testimony, were actuated in so doing by the encouragement given them by Ford and his influence over them. There were, as the testimony showed, fifteen or twenty shots fired—some witnesses said thirty— and it was shown that two of these were by Daken who fired over the heads of the crowd, with the third shot he killed the

At the Saturday night meeting Ford was the speaker. Witness Jameson testified to some of his utterances. Being asked what Ford said, he replied: “As I came up he was talking and he said ‘the conditions here are hell’ and he said ‘if you people want to live in hell you can, but for my part I don’t want to live in hell.’ ’’ One of the persons present made some protest “and quite a number wanted to make him (the intruder) shut up and Ford said, ‘let him alone, it is only disturbing my meeting. ’ He said, ‘ There is no use of them sending any tin-horn scissor bill officers after me with stars on them as big as tin cans, they can’t get me; if they get me they have got to have guns and they can’t get me then.’ ” The expression, “scissor bill officer” and “scissor bill boss” occurs frequently in Ford’s speeches and in responses sometimes by his audience, but' no explanation was given of its meaning; that it was an epithet showing hatred is manifest.

Witness Earl Smith was running a restaurant at the camp, The platform where the people mostly assembled was near by. He testified to a meeting at the platform about half past 9 or 10 o’clock Sunday morning at which Ford was the speaker; that he read from a paper or had read the demands of the strikers in various languages; one of the crowd said, “it is better for every one to stand together, stick together”; that later they went to Burst’s office. At about half past 1 or 2 o’clock the hop-pickers met again at the platform. At the. close of the meeting Ford said: “Before we adjourn our mass meeting I have a few words to say. ‘Now,’ he said, ‘I ask everybody to stand loyal to our demands’ and he said, ‘If the scissor bill boss don’t meet our demands by 10 o’clock tomorrow he will go up in smoke,’ and he said, ‘Now, it is up to you people whether the scissor bill officers from Wheatland comes out here and arrests me or not,’ he said, ‘If they do come, I hope you tear them into dog meat, ’ and the crowd-cheered and said, ‘Yes, make mince meat out of them, ’ and he said, ‘Now we are going to adjourn our mass meeting;

Witness Alvin James was at a meeting in the forenoon of Sunday at which the demands of the hop-pickers were stated by Ford to Durst; that Durst agreed to most of the terms but not all and refused the demand of $1.25 per hundred for picking. The witness testified that when Durst left he heard Ford say that their demands had been refused and continued: “I want all of you that is in any way interested in this now to stand loyal to what I have said and done and we will see that he comes through with these demands.” About 12 o’clock the people came together again, the witness said, about fifteen hundred of them, and Ford and some others were appointed a committee to see if Durst would come to their terms and later Ford reported that he had refused “and he told them the only other thing was to see that no other pickers came—to boycott all outside pickers.”

Witness Phillips testified that he passed the crowd at a meeting about 11 o’clock and heard Ford say: “ ‘The officers may get me yet,’ he said, ‘if they do I don’t care a tinker’s dam.’ He said; ‘If you people have any nerve that you will stand by me. ’ ’ ’ Witness Howard was present when Constable Anderson came into the camp and heard someone in the crowd say, “ ‘There is one of the scissor bill s—of—b, now let’s get him.’ ” “I heard Blackie Ford say if we will stay together we will stay on the grounds and that the I. W. W.

There is much other testimony tending to show that the hop-piclrcrs very generally were wrought up to a high state of excitement and had placed their confidence in Ford to lead them successfully in securing better working conditions and better pay and when they assembled at 5 o’clock in large numbers they were, at least many of them, in such temper that not much was required, as was soon demonstrated, to induce them to resort to acts of criminal violence.

At this 5 o’clock meeting Ford was in charge and was the speaker and leader as he had been throughout the day and it appeared very clearly that the officers were expected any moment. Witness Alvin James was present. Speaking of the coming of the officers he testified: “Just before the automobiles drove up or as they were coming in Ford said, 'Well, boys,’ he said, ‘the sheriffs are coming and I suppose they will

The principles of law already to some extent pointed out, it seems to us, are clearly applicable to the case here presented, and that the jury were fully justified in finding defendant Ford guilty as a principál in the murder of Manwell, although he did not himself fire the fatal shot. The conclusion of the jury that the unwarranted attack upon the sheriff and his assistants while in the execution of a lawful duty, resulting in the death of a deputy sheriff and Manwell, was the direct result of Ford’s acts and conduct, was we think, fully justified by the evidence.

4. We are next to notice the evidence so far as it tended to connect defendant Suhr with the killing. We have already given the telegrams sent by him Sunday, August 3rd, showing that he was one of the organizers and conductors of the strike

Four witnesses testified to certain admissions or confessions made by Suhr which will next be stated. Witness Francis Heenan, deputy sheriff of Yuba County, testified to a statement made to him by Suhr. The witness had been sent to the Sutter County jail, where Suhr was confined, to bring him to Marysville for the purpose of identifying some one. The statement was made on the way from the court house in Yuba City to the Northern Electric depot, where they got on the cars, some time about the middle of October, 1913. The witness was examined and cross-examined from which it appeared that Suhr had not been asked to make any statement; that no promises or inducements were held out to him or threats or coercion in any manner used and that the statement was “freely and voluntarily made.” “Q. What was the statement, tell the jury?

Witness Bennett Schillig, deputy sheriff of Sutter County, testified to a statement made by Suhr on December 2, 1913, at the time the Ford case was set for trial. The witness was at the time under sheriff and in charge with the sheriff of the jail where Suhr was confined. He testified that no inducement or promise of immunity or reward for making the statement was given him and that “no coercion or duress or anything of that kind to make him make the statement” was used. He was asked to give the statement verbatim to the best of his recollection. “A. It was on the evening of the 2nd. Q. Of December? A. Yes, sir, and about between 8 and 9 o’clock; it was about 8 o’clock; it was my custom to go into the jail and lock Mr. Suhr into his cell; when I first went in he complained to me about the postponement of these cases and we had some little talk about that and he asked me my

At this point some discussion was had between counsel, after which the witness resumed the narrative: “A. Well, he said he thought, T have nothing to run away for, T will go back.’ And he met Ford and these other parties. Q. State what he did, not what he said. The Court: If he stated anything further as to what he himself did, state it. A. Then he turned back and caught a freight train that was crossing the bridge and he rode on that freight train to Roseville and from Roseville he got a motor car and went into Sacramento and it was too late to get a train for Stockton and he remained all night in Sacramento and went home the next day to Stockton; and it was either the next day after or the second day, I don’t know which, that there was some article come out in the papers in regard to Suhr and Ford wanted for murder and he was somewhat alarmed about it and he left there and went up into Tuolumne County, I believe it was, a timber camp where there was some seventy-five or eighty men working, and he worked in the kitchen as dish washer and waiting on the table; and he worked there about a month and he got to thinking the matter over and he thought he would come back to Marysville and surrender himself, and quit his job; that he told the foreman who he was and why he was quitting; and he got back to Stockton and there he saw some more articles in the papers in regard to the inhuman treatment that the prisoners were receiving in Tuba County; that they were compelled to lie on the floor and their bodies were covered with sores and he changed his mind about coming to Marysville and he concluded that he would go on to Arizona or to Mexico or some place to get out of the way for a while; and he started at that time; I can’t remember all the details of his trip down there; he was several days going to Arizona and he was arrested there and brought back. Q. Was there anything by him said about the name he used in camp in Tuolumne .County ? A. Well, he said that he used

Witness Ben Hanford testified to a statement made by Suhr on Sunday morning, December 14, 1913. Isaac Smallwood was a deputy sheriff and had charge of the jail at Tuba City and Hanford went there to see Smallwood on some business. He had no official connection with the jail but was a constable or marshal. He found Smallwood with Suhr “in a little room in front of the cell” and “wanted to see him to give him a book to collect some taxes.” Smallwood was talking to Suhr. “Hr. Carlin: Q. We have already brought you up in your testimony wherein you stated, I believe you said that on the 14th of December of last year Hr. Suhr, the defendant here, made a statement to you in the county jail at Yuba City. Now give the jury all that was said by him and you at that time as near as you can recollect it. A. I walked in the jail that morning hunting for Hr. Smallwood and I said, ‘Good morning, gentlemen,’ and I said—I see this man in there and I said, ‘You just as well be in this morning as out, it is a bad day,’ and said, ‘Are you from Live Oak?’ and he said, ‘No,’ and Hr. Smallwood said ‘That man gave bail and went back, ’ and said he was in for murder. Q. What man? A. Hr. Suhr. Q. All right, this man said what? A. He said, ‘I am held for murder in the Wheatland riot,’ and I said, ‘How is that, did you just happen to be standing around?’ and he said, ‘I had been there two or three days waiting for -work and for my family,’ and he said, ‘This riot took place,’ and he said,-‘some man handed me a gun and I fired two shots at. two men, and I turned and walked out. Q. You did? A. Yes, sir, I did, and Mr. Smallwood walked out. Q. Is that all that was said? A. Yes, sir, that is all I heard said.”

Smallwood testified: “I am night man over there, deputy sheriff, and by instructions of Sheriff Noyes, to look after things there, and I make it a point to go around once in a while to see that everything is O. K. and that Sunday morning I was there and said good morning to the gentleman. Q. To Mr. Suhr? A. Yes sir, and he said, ‘Hello Ike, how are you,’ and I said, ‘Pretty fair,’ and"by that time Mr. Hanford came in. Q. And before Mr. Hanford’s arrival you and the defendant Suhr—had you and the defendant Suhr had any con

Suhr testified in his own behalf. As to the conversation with witness Heenan he testified that he had none that he can remember. His testimony as to the statement made to witnesses Smallwood and Manford was: “Well, Mir. Smallwood came in there and talked to me and we were talking about the weather, and another fellow came in there and said, ‘good morning’ (presumably Manford), he said, ‘you are better off inside than out,’ and I said, ‘I am not,’ and he said, ‘What are you in here for?’ and I said, ‘on account of the Wheatland trouble,’ and he said, ‘Did you have any gun and did you do any shooting?’ and I said, ‘I didn’t and that was all that was said and they walked out. Of his conversation with witness Sehillig he testified as follows: “When we left the court house I said to Mr. Sehillig that I was going to buy a piece of tobacco and I went to the store and bought a piece of tobacco and I wanted to go across the street where the car stopped and he said ‘Oh, come on, I am dry’ and he went to the saloon and bought a bottle of beer for himself and he give me a glass of beer and he said one wasn’t enough and he took another bottle and give me a glass and then we went out and stood on the corner and he let the car pass, and he said ‘There goes the ear’ and I said ‘We better walk than standing here’ and he started off and left me standing there and I followed him off until we got across the street. He was about five yards ahead of me and I saw Mr. Stanwood there talking to two fellows and Mr. Stanwood looked at me as though he was going to grab hold of me and he didn’t. And then we walked past the park and Mr. Sehillig got into an automobile and I stood on the hind axle and held on with one hand until we got into Yuba City and he locked me up and he went over and got my supper and then he went to the post-office and came back and asked me what they made out to-day and I said that we were all going to be tried in one case, and he got mad at my attorneys and said he was going to slap them in the face if they came in there again. Q. Did he mention their names ? A. Yes sir, Royce and Downing and started in cursing about a fellow named ‘Burton’ and then he said to me ‘They haven’t got any case against you and what do you want to be tried with those fellows for,’ and I said ‘I didn’t think that they have any case against Ford, I didn’t

The foregoing is substantially Suhr’s entire testimony, except as to his personal history up to the time he came to Wheatland, which showed that he had a wife and children and had pursued farming and various other honorable occupations.

A distinction exists, in legal contemplation, between admissions and confessions, as pointed out in People v. Miller, 122 Cal. 84 , 87, [ 54 Pac. 523 ], In People v. Strong, 30 Cal. 151 , it was said: “A confession in criminal law is the voluntary declaration made by a person who has committed a crime or misdemeanor, to another, of the agency or participation he had in the same. The word ‘confession’ is not the mere equivalent of the words ‘statements’ or ‘declarations.’ The term ‘confession’ is restricted to acknowledgment of guilt. (1 Greenleaf on Evidence, 170.) ” “An admission of a fact, not in itself involving criminal intent, is not to be rejected as evidence (without preliminary proof) merely because it may, when considered with other facts, tend to establish guilt.” (People v. Parton, 49 Cal. 632 , 638. See, also People v. Le Roy, 65 Cal. 613 , [ 4 Pac. 649 ]. It was held, in People v. Knowlton, 122 Cal. 357 , [ 55 Pac. 141 ], that declarations of the accused which are not confessions of guilt cannot be objected to as obtained under duress. (People v. Ammerman, 118 Cal. 23 , [ 50 Pac. 15 ].)

It is perhaps not necessary to make any distinction between the different statements of Suhr testified to, for in each instance full preliminary proof was made of their voluntary character.

While the rule is that confessions are to be received with great caution (People v. Gilbert, 39 Cal. 664 ; 1 Greenleaf on Evidence, sec. 200) Mr. Greenleaf says: “When the admission is deliberately made and precisely identified the evidence it affords is of the most satisfactory nature.” Speaking further on the subject and after stating certain cautions to be observed, he says: “Subject to these cautions, in receiving and weighing them it is generally agreed that deliberate confessions of guilt are among the most effectual proofs in the law. Their value depends on the supposition that they are deliberate and voluntary, and on the presumption that a rational being will not make admissions prejudicial to his

Admissions and confessions of a defendant which appear to have been voluntarily made may properly be received in evidence (People v. Goldenson, 76 Cal. 328 , [ 19 Pac. 161 ]; People v. Fredericks, 106 Cal. 554 , [ 39 Pac. 944 ]); they are substantial evidence of guilt (People v. Chrisman, 135 Cal. 282 , 286, [ 67 Pac. 136 ]); and it seems to be well settled that where the corpus delicti is otherwise satisfactorily proven a defendant may be convicted on his uncorroborated confession. (Andrews v. People, 117 Ill. 201 , [ 7 N. E. 265 ] ; Bartley v. People, 156 Ill. 234 , [ 40 N. E. 831 ] ; Wimberly v. State, 105 Ga. 188 , [ 31 S. E. 162 ]; Mitchell v. State, 45 Fla. 76 , [ 33 South. 1009 ]; Dugan v. Commonwealth, 102 Ky. 251 [ 43 S. W. 418 ] ; Sullivan v. State, 58 Neb. 799 , [ 79 N. W. 721 ].) Where there is clear and positive proof of the corpus delicti, the court said, in Wimberly v. State: “It has been too often ruled to be now gainsaid, that such proof of the corpus delicti may be considered as a circumstance sufficiently corroborating a confession.” Nor is it necessary that proof of the corpus delicti connect him with the commission of the crime, to authorize proof of admissions. (People v. Tarbox, 115 Cal. 57 , [ 46 Pac. 896 ].)

It may be conceded that Suhr’s telegrams, sent on August 3d, early in the. morning and in the afternoon of that day, go no further than to show his activities in the strike and boycott and alone would not justify an inference of complicity in the conspiracy formed later in the day; and the same may be said of his connection with the meeting at which a collection was taken up. That he was, however, one of the prominent and influential spirits in keeping alive the feeling which finally culminated in a tragedy is fairly inferable from all the evidence, although we do not think that this alone would warrant an inference that he at any time prior to the 5 o’clock meeting contemplated forcible resistance to the officers or any open violation of law, as was the case with Ford. The proof of the commission of the crime was fully

5. Some alleged errors in giving and refusing instructions, not hereinbefore considered, and in rulings upon testimony offered will be briefly noticed.

It is claimed that defendants’ requested instruction numbered 3, upon the question of reasonable doubt, was that given in the ease of Commonwealth v. Webster, 5 Cush. (Mass.) 320 , [ 52 Am. Dec. 711 ], and should have been given and was. not in effect given by instruction 28. The criticism arises out of some expressions in the instruction given in addition to the form so often approved, and the safest to be used on the subject, as given by Chief Justice Shaw.' For example, it reads in part: “The term ‘reasonable doubt,’ as referred to in these instructions is a term often used, probably pretty well understood, but not easily defined,” etc. In its concluding paragraph the court said: “A doubt that will justify an acquittal must not only be a reasonable one, but must arise from a candid and impartial examination of all the evidence in the case, or from a want of sufficient evidence on the part of the prosecution to convince you of the truth of the charge.” The suggestion to the jury that the term “reasonable doubt” is “pretty well understood, but not easily defined, ’ ’ was unnecessary but harmless. The other criticised language, it is claimed, “eliminates the plain mandate of the

6. The refusal to give defendant’s instruction 21 was justified. It relates to the testimony of witnesses who may have had an interest in the result and states: ‘‘ you have a right to disregard entirely the testimony of any witness whom you believe to have willfully testified falsely.” The instruction fails to use the necessary qualifying words “in a material matter.” Otherwise, the instruction would be misleading and not a correct statement of the law. Besides, the court instructed the jury that “a witness willfully false in one part of his testimony is to be distrusted in others.”

7. The record is singularly free from alleged errors in rulings upon testimony admitted and refused. We feel justified in remarking that the learned trial judge showed a degree of patience and judicial equipoise and fairness not always found in hotly contested criminal trials lasting many days, as this did. But two assignments have been called to our attention and these are of little importance. One of defendant’s witnesses was asked, on cross-examination, if he had ever attended any of the meetings of the I. W. W. and defendant’s objection was overruled. A witness for the defense was asked, on his direct examination—-“Did you ever hear any threats made there at that meeting Saturday evening?” Objection was sustained. He was then asked: “What if anything did you hear at that meeting?” and answered fully. We discover no error in these rulings.

The judgment and order are affirmed.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 9, 1914.