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Continued from Pane 1
about the matter, stated: "Well,
John's (meaning Delucchi's) face
was all over blood, and he said three
or four jumped on him out there and
was beating him. He ffot up and came
in here, and I Rave him the gun and
told him to go out and defend himself.
That Is about the mm and substance
tt is not shown by the record of the
preliminary examination that Delucchi
and Coffman had any . further , conver
sation, or that Coffman was present or
witnessed or had knowledge of the
trouble thereafter ensuing between
Delucchi and Lopez, or performed any
other act in the matter., Delucchi,
after receiving the revolver, holding it
behind him, walked out' of the hotel
and advanced toward Lopez. Upon
reaching the street, according to the
testimony of Lopez, as shown by the
record, he pointed the pistol toward
him (Lopez) and a scuffle tcok place
between them during which Delucchi
wan disarmed by Lopez. There is in
the record no evidence from any other
witness that Delucchi was seen to
point the gun at Lopez.
The proposition arising from the re
cord of the preliminary examination
is this: Can one who has simply wit
nessed a part of an affray in the
street, and returned to his place of
business, and thereafter sees one of
the participants (with whom it may
be inferred that he is on some terms
of intimacy) appear inside his place
of business with his face covered
with blood, complaining that three or
four have jumped on him and were
beating him, be held to answer as
an accomplice in an assault thereafter
committed by such participant when
the only action and advice of the one
so witnessing is to hand a revolver to
such participant and tell him to go
out and defend himself.
Banishing from the mind the resent
ment that arises from the imprudent
and censurable act of arming a man
with a gun, who has just been worsted
in an encounter, to ask the foregoing
question Is to answer it. _ ■ '
In the administration of justice, cer
tain general principles of .law must be
followed, regardless of • the fact
whether the guilty may or may not
go unpunished in a particular case
(by this I am not assuming that the
defendant may have done something
not appearing in the evidence taken
down at the preliminary examination,)
that would have made him? guilty of
any crime whatever, and stating the
principle or rule involved in this case,
let it be'supposed, for example, that
Amador City had been ■ deserted dur
ing this trouble save . and excepting
for the presence of Delucchi, Coffman
and Lopez ; that after handing the re
volver to Deluichi with the. advice
and instruction to go out and defend
himself, Coffman had beheld Delucchi
creep up behind Lopez and administer
a fatal blow.
Now, by the express provision of
section 1111 of our penal code a con
viction cannot by had on the testimony
of an accomplice, without other testi
mony tending to connect the defendant
with the commisson of the offense.
If this defendant can be held, upon
this record taken at the preliminary
examination to be an accomplice and
guilty of an assault of any degree
perpetrated by Delucchi, then here is
an absolute demonstration that had
there been a foul murder committed
by Delucchi under circumstances above
mentioned, no conviction of any crime
■whatever could have been had. against
him. notwithstanding the positive
evidence of Coffman.
The absurdity of calling Coffman an
accomplice and holding his evidence to
tie insufficient to sustain a verdict of
conviction against Delucchi in a sup
posed murder committed as above il
lustrated is apparent and yet it is
but the natural and logical conclusion
that follows in an endeavor to charge
Coffman as an accomplice in an assault
perpetrated by Delucchi as set forth
in the record of the preliminary ex
amination. It is a poor rule that does
not work both ways, but the rule is
the same for ascertaining what, con
stitutes an accomplice, whether in its
application 'to diversifying state of
circumstances it be invoked in a given
rase either by ihe prosecution or by a
defendant charged with crime.
Z Section 31 of our penal code, which
is but declaratory of the common law
rule, provides that to make one guilty
who himself does not directly commit
the crime, that is, what is known as
an accessor— First, he must aid and
abet it, or second, not being present
has advised and encouraged its com
mission. In the line of decisions
where the question has been raised as
what constitutes an accomplice, there
is not a single break, each and all
declare that to be an accessory one
must, if present, both aid and abet,
or, if not present, have advised and
encouraged the commission of the
crime.' • ■ • ' ■
nil not "claimed by the prosecu
tion that the acts and conduct of Coff
man brought him within the first
class, that is. that he was present and
did aid «nd abet in the commission of|
the crime;' fdr th«* single physical act
performed by him was the one handing
the revolver to Delucchi. But it Is
claimed that his conduct and language
bring him within the second class,
that is, by the use of the language,
"Take this nnd go out' and defend
yourself," and the physical act of
handing the revolver to Delucchi.
By what process of reasoning it can
be held that to tell a man to defend
himself Is advising him to commit a
crime, 1 am wholly unable to fathom.
It is the advice given to the average
American boy by his father; and while
under our statute the giving of such
advice to, accompanied by the act of
arming, a child under the age of four
teen years, or a 1a 1 lunatic or idiot, would
undoubtedly make the offender an ac
complice in any act of assault com
mitted by such child, lunatic or idiot,
it is not claimed here that Delucchi
comes within one of these classes.
To advise a man to "go out and de
fend himself" is not advising him to
commit a crime, but it is telling him
to do something that he has a lawful
right' to do, even to the extent of tak
ing human life under some circum
stances, if it becomes necessary.
The elementary principle of law as
laid down in Greenleaf on Evidence, a
standard text book in almost every
law school in the land, is thus stated
in volume 3, .at page 71: "If the prin
cipal in the; crime totally and sub
stantially departs from his instruc
tions, as if, being solicited to burn ; a
house, he moreover commits a robbery
while so doing, he stands single, in
the latter crime while so- doing, and
the other is not held responsible for
the robbery as an accomplice."
That Delucchi totally and substan
tially departed from his instructions
"to go out and defend himself." 'by
committing an assault instead, is es
tablished beyond the shadow of , a
doubt, The advice ''to take 'the gun
and go out and defend himself" was
lawful and innocent in itself; but sup
pose'he had given some unlawful ad
vice, for example; to take the revolver
and go out and ' break open a till in
another man's house and burglarize it,
and departing from such instructions
Delucchi had committed an assault
upon the street upon Lopez, .yet even
then, under "this elementary rule of
law, Coffman could not be held as an
accomplice to tne assault. In other
words, to hold Coffman as an accom
pice, in any assault committed by De
lucchi, It must appear that he; advised
an assault, or used ' language from
Which a reasonable deduction might be
drawn from the language itself that
such advice was so understood by the
parties, and that no innocent construc
tion could he reasonably be placed upon
the language used.
' The rule laid down in Greenleaf on
Evidence has never % been changed in
this "state!". In People vs Keefer, 65
Cal. 233, it is said : "The fact that the
defendant did encourage Chapman in
his purpose to follow and tie the de
ceased, such encouragement would not
of itself make j him accessory to the
killing." In People vs." Bunker, 2
gal. App. Reports, 204, it was held
'-'that even if Granger and Tichenor
were guilty of offering a bribe," to
Bunkers, a member of the legislature,
they were not accomplices in the crime
of Bunkers in receiving a bribe , while
a member of the legislature," and the
conviction of Bunkers was rightfully
had on their testimony, as they
neither aided nor abetted nor en
couraged the crime of receiving a
bribe, for which he was convicted, by
their acts in procuring the money and
giving it to Jordan, who offered the
A multitude of authorities upon
this principle underlying the acts and
words that are necessary to make one
an accomplice may be found. Some of
the California cases that may be
mentioned, to say nothing of the
authorities from our sister states are :
People v. Anthony, 56 Cal. 395.
People v. Balinger, 71 Cal 20.
People v. Dole, 122 Cal. 436.
People v. Compton, 123 Cal. 412.
People v. Morine, 133 Cal. 627.
Feople v. Blackwell, 143 Cal. 259.
People v. Lang, 7 Cal. App. Rep.
727. '1 '■■ «r;.,.M.|..
No cases have been cited by the dis
trict attorney, and in my opinion no
case can be found that will justify
the holding of this deferdant upon
any crime of assault committed by
Delucchi upon the evidence taken at
the preliminary examination. But it
is suggested with much plausibility
but much assurance, that Coffman is
morally responsible for the act of De
lucchi, and the latter would have com
mitted his offense if Coffman had not
furnished him with a revolver, and he
should be held amenable for the act of
Delucchi; but neither would any man
ever kill another by poison or a gun if
some one did not sell or furnish the
gun or poison to him. Inasmuch as no
judge, acting upon his oath ot office,
could permit a verdict to stand, as
suming that one would be rendered,
against Coffman for the crime of as
sault of any degree committed by De
lucchi, it would aeem that the
punishment for Coffman's delinquency
would fall upon the tax-payers who
must beat the expense of a criminal
trial, rather than upon him. Couits
are organized for the purpose of re
dressing legal wrongs only, and how
ever reprehensible and censurable the
conduct of a man may be in the eyes of
the community, , so long as he con
fines it within legal bounds he Ih not
answerable to the courts, but amend
able only to a power higher than that
of man; and this is necessarily so in a
free government wheie no man can be
convicted except upon the Identical
charge upon which ho is placed on
trial, for if there is to be a departure
from this rule, the necessity for the
classification of crimes no* longer ex
ists, and the legal conduct of all men
would be regulated not by written
laws but by the conscience of the
The conclusion is Irresistable that
the evidence appearing in - the record
taken before the committing magis
trate is Insufficient to justify the com
mittment of defendant for offense of
an assault by Delucchi of any degree
whatever; that the restraint of de
fendant's liberty is illegal, and that he
is entitled to his discharge upon
Dated Dec. 23, 1910. . .
FRED V." WOOD, 1
When you have your. "photos" taken
by LOGAN you get belter workmanship
and more satisfaction than anywhere
else." "Up-to-date apparatus, the best of
skill and many years of experience have
given LOGAN a well deserved reputa
tion. He Is the premier photographer
or Stockton. When you come to town
dont' fail to call at the studio— ls S.
Sanjoaquin St. Prices always mode
rate—work always best :
. MARRIED =.
PARSINI-BONHAM.— In Stockton,
December 22, 1910, . at the Central
M.E. church^' by Rev. John, Step-
hens, Julius Parsini of Stockton, and
Ellen Bonham of lone, Cal.
TONZI-MASON.-in .Sutter Creek,
December 21,' ; i 910, by ' Rev. Father
Traverna, John A. Tonzi, of lone to
Mis 3 Ella M. Mason of Beioit, Wis-
■i■■■ , > ■ . DIED ■ r^»
SIMMONS.— In lone, December 19,
1910, Mrs Precilla Simmons, a native
- of Pennsylvania,- aged 84- years,- 2
months and 25 days.
BECKER.— In ,, ihe Southern Pacific
Hospital,. San Francisco, .December
17, 1910, V John .Joseph Becker, : a
native of Kentucky, aged 55 years,
7 months.'^. *"
BARTON.— In Jackson, December 26,"
1910, Andrew Barton, a native of
Ohio, aged .72 years. .
DABOVICH— In Jackson, . December
27, 1910, Mrs Mitchael Dabovich, a
native of Austria, aged — years, „
LA SHELLS.— In Lodi, December 16,
1910, to the wife of H.S. J-.a Shells
of Lancha Plans, a daughter.
LUCAS.— In lone township, December
22, 1910, to the wife of Ernest
Lucas, a son...
NOTICE TO CREDITORS
Estate of Marcus Brown, also called
M. Brown, deceased.
Notice is hereby given by the under-
signed.administratur of the estate of
Marcus Brown, also called M. Brown,
deceased, to the creditors of and all
persons having claims against the said
deceased, to exhibit them, with the
necessary vouchers, within four
months after the lirst publication of
this notice, to the said administrator at
the law office of Wm. J. McGee. the
same being the place selected for the
transaction of the business of said es-
tate, in said. Amador County.
Dated December 19, 1910.
H. E. Potter,
Administrator of the estate of Mar-
cus Brown, also called M. Brown, de-
ceased, y!^ : dec 23
NOTICE FOR PUBLICATION
Department of the Interior.
U. S. Land Office at Sacramento,
California, December 12, 1910.
Notice is hereby given that JOHN
A. CANVIN, of Volcano, California,
who on May 22, 1905, made H. E.,
No. 7818, for $E>i SW^. WH SE^
and SWM NE>^, Section 13, Township
7 N., Range 12 E., Mount Diablo
Meridian, has filed notice of intention
to make Final Jive year Proof, to es-
tablish claim to the land above des-
cribed, before U. S. Commissioner
for Amador County, at his office in
Jackson, California, on the 21et day
of January, 1911.
Claimant names as witnesses: - .'
p. Grillo, W. 1), Smith. . Junes
Hanley. and John Baroni, all of Vol-
Not coal land.
JOHN F. ARMSTRONG,
del6-td ' Register.
HE WAS NOT A FLIRT.
Therefor/. He Resented the Woman*
Attnmpti at Familiarity.
He Was riding homeward, comforta
bly seated nrtd reading his paper. Be
ing n trifle nearsighted, he was apply
ing himself even more closely to bis pa
per than other hotnegolug passenger*.
Thus Intent In the day's news, lie wan
startled when n woman came up re
side him and touched him lightly on
the shoulder, at the name time cnnt!ntf
a longing eye on his sent
ll* Is a polite man, and be got up
"A woman with thnt much nerve Is
entitled to a seat," he muttered to
himself. "The Idea of a woman de
liberately nudging n man out of his
scat!" Other women standing near
by laughed. unreservedly. He hid bis
embarrassment behind bis paper, for
he felt that his good nature bad been
Imposed upon and that tbe laugh wna
l?y and by there was a vacant seat
next to the one he had . given up to
the woman, and be 'sat down once
more. The woman turned and looked
at him amusedly. lie could feel her
gaze, even though . he made a bluff at
being Intensely Interested In his paper.
Pretty raw, It seemed to him, for a
woman deliberately to take the seat
of v total stranger nnd then sit there
and laugh at him because be was such
Then ' the woman spoke to him.
"Aren't you going to talk to me?" she
Ho could stand her familiarity ' no
longer. 1 : "Well, of nil the"- He stop
ped right there when he looked around
and recognized her. It wus his wife!—
Cleveland; Leader. ' KZ'J *&%&&&
■•-::■ :■ /—■■■ .-;. - ■
They Were the Beginnings of th«
Modern . Restaurant.
In primitive times tbe only places
hi London where. the public could be
entertained wltb " food had been the
cooks' shops. The famous ICast Cheap
was a great thoroughfare, down which
the. stalls of the butchers alternated
with those of the cooks. You chose a
Joint at the flesh market, and you car
ried, it next door to be cooked for
you by a certain hour. If you wished
for ... wine, you must bring that with
you.' for the cooks sold no liquor, al
though they seem to have provided, as
time went on, more and more of the
natural accompaniments of meat, such
as bread, vegetables and, pastry.
.This habit continued until well Into
the 'reign of Elizabeth, and so . long
as such, an inconvenient custom pre
vailed ; there could have been.no real
comfort for any citizen who chose .to
dine ' abroad. He must have had . as
much trouble with porterage and bas
kets aa a country; party i has today nt
a. picnic. But about the time that
Shakespeare came up to London ; a
remarkable change took place In the
customs of the town, and the practice
of . . public hospitality and - entertain
ment i was singularly facilitated. . < ■
• The nature of this change lay in tbe
sudden development of tbe tavern and
the - consequent withdrawal- of. the
cookshop. The worshipful company
of pastelars, as the cooks were called,
ceased to enjoy the. monopoly of pro
viding hot meals.— Edmund Gosse In
Harper's Magazine. . '■'■ •
Railroads Are Never Finished.
In one respect a railroad is unlike
any. other project undertaken by man
—It Is never finished. Like a cucumber
vine, says a writer in Popular Me
chanics, the instant It ceases to grow
It begins to wither. There must be
continuous expansion and enlargement.
Larger cars require more powerful lo
comotives, , and both in turn call for
heavier :. rails, bigger roundhouses,
stronger bridges, longer platforms and
sidings. Increased safety devices, while
the straightening of curves and the
leveling of grades come In for tbeir
share of attention on even the oldest
roads. Little wonder, then, with our
railroads consuming nearly one-half of
all 'our manufactured steel and Iron
and fully one-half of all the lumber
made each year, that they are the. un
failing barometer or the business ac
tivity of the nation.
The Wonders of Science.
It was left for the exhibitor of a
phonograph In the; 'streets of Utrecht,
according to an American traveler, to
put the finishing touch to the wonder
ful Invention. There was the sound of
a military band In full blast, and then
suddenly the tune stopped and "Bait!"
rang hoarsely out upon the air.
"Who's that Interrupting the con
cert?" flippantly inquired the Ameri
can, edging close to the operator.
"That," said the man, surveying him
blandly, "was the voice of Napoleon
Bonaparte giving the order at the bat
tle of Waterloo."
That Wat the, Trouble.
A Wichita man was fussing because
of his aching teeth. "Why don't you
go to a dentist?" asked one of bis
friends. , „■•■
"Ob, 1 haven't got the nerve," was
"Never mind that." replied th«
friend. 'The dentist will nnd the nerve
■11 right."— Kansas City Journal.
"Shakespeare's works are marvelous
revelations of poetry."
"Poetry l" echoed the Baconian scort
fully. "Tbey are merely a collection
of ciphers, wltb some figures of speech
thrown lo to make' them harder."—
Washington Btar#?£ -
Hl* Wlm Plan.
"1 never bare any luck."
"Neither do I," responded the other
citizen. "Therefore I keep oat of en
terprises requiring gob* of lack to b«
t bbccws."— hoatevllte Courier-Journal.
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DR. PUmCE'S FAVORITE PRESCRIPTION
THE ONB REMEDY for woman's peonliar allmenta Wood enonrfh
.that its makers are not afraid to print, on it* outside wrapper its
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J . -Hi
Sixty-Third Dividend Notice of
People's Sayings Bank
■'. For the half year ending December 31, 1910, a dividend has been-:
declared at the rate of per cent, per annum on Term Deposits, 4^ '['
per cent on Ordinary Deposits aud 3 P er cent on Checking Account?, , v
free from all taxes, payable on aud after January 3, 1011.
ONE DOLLAR will start an Ordinary Account, FIFTY DOLLARS^/*
will start a Checking Account. Send for Booklet,'*- 1
" BANKING BY MAIL " [
<^=^ STOCKTON NURSERY >«=r^ jj.
■.■ T.J.Stephem«,Pro P ; '. -.i .V gk
Fruit, Shade and Ornamental Troos, SKSiJK .§g
Phone 087 *4 S. Hunter. Street ♦» '
STOCKTON, CAL. f