Hellraisers Journal – Saturday April 30, 1910
Carson City, Nevada – Fellow Workers Preston and Smith Remain Behind Bars
From the International Socialist Review of April 1910:
HREE years ago the 10th of March, John Sylva, a restaurant keeper at Goldfield, Nevada, was shot and killed by M. R. Preston, a miner and member of the Western Federation of Miners at that time affiliated with the Industrial Workers of the World, and on May 9th, just two months later, Preston and Joseph Smith, the latter a cook and member of the I. W. W., were found guilty on an indictment charging them with murder and were sentenced to imprisonment, Preston to twenty-five and Smith to ten years.
A girl employed as waitress in Sylva’s restaurant had left her job and Sylva withheld a part of her wages. The local union of the I. W. W. sent its business agent to demand a settlement and upon being denied, a strike was called and a boycott instituted and the place was picketed, all the proceedings of the union being lawful in the State of Nevada.
Preston and Smith both acted as pickets in front of the restaurant and on several occasions, as appeared in the testimony at the trial, Sylva had displayed a large caliber revolver and threatened to take the life of Preston. On the night of March 10th, Smith had left his post and gone to his home to eat supper with his family. Preston came along and took up the picket duty and after a little while Sylva rushed to the door, gun in hand, and ordered Preston to leave. Preston refused to abandon his post and Sylva raised his gun threateningly at Preston. The latter, having heard of the threats and seeing the gun pointed at his person, had good reason to believe that his life was in danger, and in self-defense drew his own weapon and fired, killing Sylva.
Further on I shall review carefully some of the most important points of the case as they developed at the trial and some of the subsequent developments, but here I wish to state my purpose in presenting the case for your consideration.
Banner carried each week by Industrial Worker —–
Preston and Smith are wage workers. Like Debs, Moyer, Haywood and others, they were organized. They were members of unions that were organized to fight the capitalist exploiters, not to barter with them for the sale of the commodity, labor-power. And they were active members of their union, thus constituting themselves a menace to vested interests, to the right of capital to exploit labor, to the right of the capitalist to defraud and pillage the victims of our social system.Like Debs, Moyer, Haywood and Pettibone, Preston and Smith were drawn into the coils of the capitalist law and order machine and the forfeit of their lives demanded because they had dared to oppose the capitalist monster and to fight in the interest of their class, the class that lives only when it finds work and that finds work only when that work adds to the wealth of other men.
The arrest and conviction of Preston and Smith occurred while the W. F. of M. and all of the other labor organizations of the country were in the throes of the struggle to save the lives of Moyer, Haywood and Pettibone. The W. F. of M. and the I. W. W. provided able counsel and some funds for the defense of these two valiant members of our class and a good fight was made for their lives, but it was almost entirely overshadowed by the other fight and as a result the capitalists and their hirelings in Nevada were allowed to send our comrades and fellow-workers to prison.
They have committed no crime but that of class-consciousness.
They have done no wrong but that of defending a helpless girl of their class against the brutal power of capital entrenched.
Their trial was a farce.
Their motion for a new trial was denied, arbitrarily.
Their application for an appeal was denied upon a technicality of language, a word used in the future instead of the present tense.
Through their counsel they have appeared twice before the State Board of Pardons and although the most flagrant violations of even the capitalist rules of legal procedure were shown to have developed at the trial, the Board has persistently, and consistently with the bourgeois idea denied their prayer.
Now, comrades and fellow workingmen and women of America, wherever you happen to be, it is time for us to act.
It is time for us to again submerge our differences of opinion as to the most effective method of political and industrial organization.
It is time for us to re-organize the Moyer, Haywood, Pettibone Protest Conferences into Preston and Smith Protest Conferences.
It is only by arousing and uniting the wage-workers all over the entire country that we shall succeed in swinging open the heavy doors of Nevada’s bastile so that our imprisoned brothers may come forth into light, liberty and life.
Will you join us comrade? brother? fellow-worker?
The following are a few of the most glaring irregularities that developed in the judicial farce which landed Preston and Smith behind the prison bars.
Preston and Smith were charged with having entered into a conspiracy to kill Sylva. To prove the conspiracy charge the State offered three witnesses-Claiborn, Bliss and Davis.
Claiborn was a predatory person infesting the mining camps of the West and at the time of giving his testimony was wanted at his home in Arkansas on a charge of having forged an insurance policy. He disappeared immediately after the trial.
Of Bliss, the leading paper of Goldfield had the following to say: “Member of Butch Cassidy’s gang at Robber’s Roost, Utah, and participated in the robbery of a $7,000 payrole; implicated in the Schurz stage robbery; arrested and brought to Goldfield, jumped bond; in trouble all through Nevada, Wyoming, Colorado and part of Utah; principal witness against Preston nd Smith.”
Jack Davis, the third of this trio of state’s witnesses, had been tried and found guilty of a most brutal and cowardly murder of two sheep men in Idaho. While on the stand he was asked a question regarding the trial and he answered in great braggadocio “Sure—I was convicted of murder in Idaho,” and he often displayed the rope with which he was to have been hanged.
It was not merely the evidence of these desperadoes that convicted Preston and Smith, it was generally understood in the court room that these three would “get” any juror who failed to come through with a verdict of guilty. But notwithstanding the charge of conspiracy and the testimony, the jury failed to bring in a verdict of murder in the first degree as the prosecution demanded and the instructions of the court would have permitted. The jurors knew that Preston and Smith were innocent, that they had violated no law, but they also knew that they had to bring in a verdict of guilty and consequently they found Preston guilty of murder in the second degree and Smith guilty of manslaugther.
I have before me two books of 80 and 75 pages, respectively, published by the Clerk of the Supreme Court of Nevada, and which constitute the briefs submitted by P. M. Bowler and F. J. Hangs, attorneys for plaintiffs in error, and by Judge O. N. Hilton, of Denver, of counsel for plaintiffs. In these two volumes every error and every flagrant violation of law and rule in the trial is taken up and discussed in the minutest detail and the reports of state and federal courts as well as English and Canadian reports have been ransacked for parallel cases that have been decided almost invariably for the defendant. Space will not permit me to go at length into these details, every one of which should be on the end of every working class tongue in America, but these two books should be reprinted in pamphlet form so that every member of the protest conferences might have a copy.
Attorneys for the defendants asked the trial judge to give the following instruction to the jury: “If you believe from the evidence that the deceased, John Sylva, made an attack upon the defendant, M. R. Preston, and that the defendant, M. R. Preston, believed and honestly acted upon the belief that he was in danger of losing his life or receiving great bodily harm, and that in order to protect his life, or to protect himself from great bodily injury it was necessary for him to kill the said John Sylva, then and in that case the killing was justifiable and you must acquit the defendants.” But the court refused to give the instruction saying that it did not state the law correctly. Judge Hilton, in his brief, says: “It conforms to every authority in its requirements and is full, complete and cogent,” and he asks if it would not have been given if the case had been reversed, if Sylva, the business man, had killed Preston, the workingman, and had been put on trial for his life.
That’s the point, fellow workers! It was class justice that was being doled out by the court, capitalist class justice by a capitalist court. Let us demand working class justice, and let us organize the members of our class to voice that demand.
The case of Smith would be a joke if it were not so serious for Smith. He is charged as a principal and accessory to murder, planed, premeditated, and is found guilty of manslaughter. In this case it was impossible to commit the crime of manslaughter for he was not present when the killing occurred, and the statutory requirement is of passion, too great, apparently, to be resisted, and without being premeditated. Smith was at home eating with his family when Sylva was killed and Attorney Bowler well says: “there being no evidence of the presence of Smith at the time and place of killing, there was no middle ground and the jury with equal propriety might have found Smith guilty of sodomy, rape, robbery or any other crime or public offense as to have found him guilty of voluntary manslaughter.”
The jury just simply had to find a verdict of guilty for both Preston and Smith and in their fear and ignorance they decided upon manslaughter as a pretty good thing for Smith.
All the courts and constituted authorities to whom they may appeal have turned them down. Comrades and fellow-workers, these two imprisoned workers now appeal to the members of their class, to the workers of the world. Shall we turn them down?
One more point which developed in that infamous trial and I have finished. An outside attorney was hired by the citizens’ alliance or the mine owners and paid $5,000 for his services as special counsel to assist in the prosecution. At the conclusion of the testimony, in his address to the jury, he uttered substantially the following words which I quote from the brief submitted by the defense to the supreme court: “You must convict the defendants, because such conviction will cause people living outside of Nevada to invest their money in the State and so bring about great prosperity. Convict these men as an example, not because of individual guilt, but sacrifice them, if need be, to secure the general prosperity of Nevada.”
Enough!
Comrades and fellow-workers, our lives and our liberties are to be sacrificed in order that capital may not be timid, that it may be invested in the industries in which we toil our lives away to enrich others.
How long, oh, how long, shall we submit!
Let every Socialist and Labor paper in the land copy this article or get the facts and write their own version of the infamy, and then let us all with one accord urge the workers of America to unite for effective protest against the further imprisonment of these two brothers. Let the protest come from every quarter and let it be so loud that the very doors of the prison will fly open. Until a central organization can be formed communications may be addressed either to John J. Balem or to the undersigned, both members of a committee elected by Branch Oakland, Socialist Party of California, for the purpose of precipitating this action.
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[Inset added from Industrial Worker of April 9, 1910.]
———-HREE years ago the 10th of March, John Sylva, a restaurant keeper at Goldfield, Nevada, was shot and killed by M. R. Preston, a miner and member of the Western Federation of Miners at that time affiliated with the Industrial Workers of the World, and on May 9th, just two months later, Preston and Joseph Smith, the latter a cook and member of the I. W. W., were found guilty on an indictment charging them with murder and were sentenced to imprisonment, Preston to twenty-five and Smith to ten years.
