Page:Federal Reporter, 1st Series, Volume 5.djvu/703

 THE MDSSEL StOOGH CASE. <3Ô1 �if they 3rew their pistols upon Him and comiaitted an asBàuït by levelling them at him, cocked and within a f ew f feët distant, demanding the sari-ender of his arma in a meiiacing nianner, and telliûg him to consider hiinself a prisoner, — ^that, I say, iyàs an àssault, a f ojfcible obstruction within the meanîng of the law, and the act of resistance was made out. And if the purpose of their coming there — ^if they came there by.concert, as it is evident îrom their own testimony that they did— îf they came there by concert and with that purpose, that piirpose being aix unlawf ul one, then there- was a conspiracy, and you are to determine what that purpose' was f rôm ail the circum- stances of the case. If they came there simply to persuade, simply to defend Brewer, if it were necessary, that would liot be unlawful. There was notfaing indicated by the evidence to show that there was any occasion in f act of defeuding Brewer from an unlawful assàult on that morning. They seem to have come there as volunteers. There is no testimony tehd- ing toshow here that Brewer and Storer had invited them to come there, or desired them to corne and interfere in their affaire; they were there apparently as volunteers, so far as the testimony in the case shows. If there ie any testimony to the contrary, you will remember it and give effeot to it, gentlemen, because I only state my impression, and you will take your oWn recollection of the testimony j not mine. Brewer had not been distiirbed in hië work. He was still plowing, according to the testimony. S1;brer had just gone out to meet him, after meeting Crow in friendly conversation. There was nothing then which hadoccurred that called upon them to change that friendly purpose they now avow, for there was as yet no occasion for protecting Brewer's life. Nothing else had occurred there, as indicated by the testimony, to re(iuire a change of purpose. �Now, then, under the circumstances, if what they did is an evidence k)f what their purpose was, aïid if they resisted or obstriHîted the marshal in the' sense which I have described to yotij'then that is evidence that their purpose in coming was to do that thing which they did do, viz., to resist the marshal; whether suffieient evidence or not is à question for ����