The instructions then outlined the scope of criminal conspiracy, stating that it was unnecessary for one conspirator to know all of the other conspirators but that common design is the essence of the charge of conspiracy. The acts of one conspirator become the acts of any and all conspirators. In the eyes of the law the sheriff and the deputies also constituted in this case but one personality, the sheriff being bound by the acts of his deputies and the deputies being authorized by the powers of the sheriff. Also the ordinance dated September 21st, 1916, was held to be a valid one.
"Now whether any of the Industrial Workers of the World have been, prior to November 5, 1916, guilty of encouraging disrespect for law, or of unlawful assemblage, or of riot, is not the question on trial here. They could all be guilty of all the acts or offenses heretofore mentioned, and still this defendant be innocent of this particular crime charged on November 5th, or they could all be innocent of all the acts mentioned, and defendant still be guilty of the main charge here.
"Again, whether the sheriff or any of his assistants have been guilty of any of the acts charged against them is not on trial here. They could all be guilty of all the acts charged and still be the victims of unjustifiable shooting from that boat, or they could all be innocent of any offense, and still be the aggressors and cause of that shooting on the dock wherein Jefferson Beard lost his life.
"One of the questions in this case is the question—Which side was the aggressor on that occasion?
Victims at Morgue.
John Looney Hugo Gerlot, Felix Baran Abe Rabinowitz
"In determining who was the aggressor it is your duty to consider all the facts and circumstances surrounding the situation, the relations of the parties to each other, their intentions toward each other, and all the things they did. You will also consider the past conduct of all the parties, any acts of violence or other assaults that may have been committed, and any threats that may have been made, and the character as known and understood by each other.
"Therefore, simplify your deliberations and determine first the question: Did somebody on the boat unlawfully kill Jefferson Beard? If somebody on the boat did not kill Beard, then of course Tracy could not be guilty of aiding John Doe to do something which John Doe did not do. But if the State has satisfied you beyond a reasonable doubt that Beard was killed by a shot fired by somebody on the boat, then such killing is either unlawful, in which case John Doe would be guilty of one of three degrees of unlawful or felonious homicide, viz., murder in the first degree, murder in the second degree, or manslaughter; or it is justifiable in which case John Doe would not be guilty. Hence you will render one of four verdicts in this case—