In addition to the police service already mentioned, several men organized what was known as a "Citizens' patrol" of watchmen, and they were armed with rifles and pistols. On May 26 the Mayor ordered the patrol to disband.
After the great catastrophe, one of the first citizens to volunteer his services to the Red Cross Society was Mr. Heber Tilden, a prominent merchant and a man of great popularity because of his kindly disposition. He worked night and day with his large automobile, carrying invalids to places of shelter from the storm then raging.
On the evening of April 22 he tore himself away from this work for the purpose of visiting his own family in the neighborhood of San Mateo, a few miles from San Francisco. He used his automobile for this purpose, and was accompanied by Acting Lieutenant Seamans of the Signal Corps.
After leaving his family he and Seamans returned to San Francisco, reaching Twenty- fourth and Guerrero streets about midnight. A large Red Cross flag was flying from the machine at the time, and Tilden was acting as his own chauffeur. At this point some men in civilians' clothes called "halt," but as the machine drew nearer and they observed the flag it was permitted to pass.
At Twenty-second street three other men called out "halt," but Tilden, believing that they would see his flag as he drew nearer, paid no attention to the command and passed on. Someone on the corner then began firing a revolver and Seamans responded, emptying his revolver. 'While Seamans was firing, Tilden fell forward, mortally wounded, and Seamans was also wounded. The machine was stopped and the men on the corner hurried up to it and then learned the result of the shooting.
Three of these men were arrested and charged with murder. Their names were Edward Boynton, Vance Malcolm and G. W. Simmons. It was shown that they were members of the so-called "Citizens' Police," an organization formed for the purpose of assisting the police, but having no authority as peace officers. Their preliminary examination was held before Judge Shortall, who on May 24 held them to answer before the Superior Court.
On September 20 the trials of Boynton and Simmons began before Superior Judge Cook. Mayor E. E. Schmitz testified that he issued an order on April 18 for all guardians of the peace to kill thieves or persons committing any serious crime.
Boynton testified that he had been detailed at Twenty-second and Guerrero streets, and that he had received orders to halt all persons and ascertain the nature of their business. He also stated that he was under the impression that martial law had been declared. He testified further as follows:
"At about midnight two men came along on foot, and upon halting them I learned that they were fellow guards named Malcolm and Simmons. At that instant I observed an automobile coming down Guerrero street at a high rate of speed, and I also noticed that the driver ignored the command to halt given by my fellow guards two blocks away. Believing that the machine had been stolen I cried 'halt,' but as the chauffeur only increased his speed, I fired a shot in the air as they passed. A man in the machine began firing. so in self-defense I fired directly toward the machine, emptying my revolver, Simmons also fired one shot from his rifle."
Judge Cook's instructions to the jury were in part as follows:
"This is in many respects an extraordinary case, arising under extraordinary conditions.
"I charge you as a matter of law that at the time in question, martial law did not prevail. The State law was supreme and mere proclamations could not make laws.
"No soldier or police had any right to stop citizens without legal cause, and ignorance of the law is no excuse.
"But the Penal Code expressly excepts from among persons capable of committing crime, those who commit an act or omission under a mistake of fact that disproves criminal intent.
"It is a matter of history that the entire community believed that martial law prevailed during the great fire.
"Therefore, if the defendants honestly believed and the circumstances were such as to lead them to believe that they were acting under martial law, and the evidence proves that that mistake removes any criminal intent, then the defendants were incapable of committing this alleged crime.
"The question to be decided is: Did the defendants honestly believe at the time of the firing of the shots that the automobile was stolen and that they were preventing the further commission of a felony? If so they were justified under the law."
After a few moments' deliberation the jury returned a verdict of not guilty, and on motion of the District Attorney, the charge against Malcolm was also dismissed.