22 Cal.2d 642, 4360, People v. Dail

Docket Nº:4360
Citation:22 Cal.2d 642, 140 P.2d 828
Opinion Judge:[9] Gibson
Party Name:People v. Dail
Attorney:[7] Paul Blackwood, Frank Sturgis, Frank Desimone and Otto Christensen for Appellants. [8] Earl Warren, Attorney General, Eugene M. Elson and Frank Richards, Deputies Attorney General, Buron Fitts, District Attorney, and John Barnes, Deputy District Attorney, for Respondent.
Case Date:August 03, 1943
Court:Supreme Court of California

Page 642

22 Cal.2d 642

140 P.2d 828

THE PEOPLE, Respondent,

v.

HARRY W. DAIL et al., Appellants.

Crim. No. 4360.

Supreme Court of California

Aug. 3, 1943

In Bank.

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[Copyrighted Material Omitted]

Page 644

[Copyrighted Material Omitted]

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COUNSEL

[140 P.2d 829] Paul Blackwood, Frank Sturgis, Frank Desimone and Otto Christensen for Appellants. Earl Warren, Attorney General, Eugene M. Elson and Frank Richards, Deputies Attorney General, Buron Fitts, District Attorney, and John Barnes, Deputy District Attorney, for Respondent

OPINION

[140 P.2d 830] GIBSON, C.J.

In an indictment containing seven counts, the defendants were charged with offenses connected with the activities of a labor union in and about the city of Los Angeles.

Count one charged conspiracy to commit assaults by means of force likely to produce great bodily injury and to commit extortion by obtaining property of persons with their consent induced by the wrongful use of force and fear. Five other counts charged certain defendants with having assaulted persons by means of force likely to produce great bodily injury, and the remaining count charged defendants with the crime of extortion.

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Defendant Burris became a witness for the State and all charges against him were dismissed. At the commencement of the trial, defendant McKnight changed his plea of not guilty to guilty to count one. The other charges against him were dismissed and he became a witness for the State. Defendants Dail and Lewis were acquitted on all counts except the first, charging conspiracy. Defendants Belanger and Copelan were acquitted on all counts except two and three, under which they were convicted of simple assault, a misdemeanor. The remaining defendants were acquitted on all counts. Dail, Lewis, Copelan and Belanger appealed from the judgments and orders denying a new trial. Dail has since died and his appeal must therefore be dismissed.

Appellants contend that the verdicts and judgments are without support in the evidence and are based on accomplice testimony which was impeached. They also contend that the court committed prejudicial error in giving and refusing instructions and in commenting on the evidence at the conclusion of the trial.

During the period involved here, rival unions representing the American Federation of Labor and the Congress of Industrial Organizations were engaged in a struggle to organize truck drivers on the Pacific Coast and bring them within their respective unions. The campaign for membership was hotly contested by the opposing groups and in many instances places of business employing members of a rival union were picketed. At this time Lewis was acting president of Local 208 of the Teamsters' Union (an affiliate of the A. F. of L.) in Los Angeles. Dail was a national officer of the union, assigned to advise and assist local unions in Southern California. As part of a program to strengthen the union and increase its membership, Local 208 employed men to work as "checkers" and "organizers" whose duties were to collect dues and obtain new members. They received their instructions from Lewis and reported back to him.

The charges in this case are related to the organizational activities of Local 208 and were based on assaults alleged to have been authorized by Lewis and committed by the defendant checkers and organizers, among whom were Belanger, Copelan, McKnight and Burris. As before stated, although [140 P.2d 831] five charges of assault by means of force likely to produce great bodily injury were listed in the indictment, the jury found only two instances (counts two and three) of the commission

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of simple assault by Copelan and Belanger. The evidence relating to those two counts will be discussed later.

In support of the conspiracy charge upon which Lewis was convicted the prosecution called as witnesses the defendants McKnight and Burris and two other men, Williams and Johnson, all of whom were designated as accomplices by the trial court in its instructions. McKnight, against whom a criminal charge (not connected with union activities) was then pending in the superior court, testified that Lewis told him his duties were to try to get nonunion men to join the union and if they "got tough" to use his own judgment. He testified further that he aided in "dumping" or "beating up" several persons, and that on one occasion Lewis criticized him for not having taken part in a fight between another checker and a truck driver who had been asked to join the union. He also testified that he had seen certain other defendants, including Belanger and Copelan, engaged in fighting nonunion truck drivers and members of the C.I.O. In his testimony Lewis denied that he ever advocated or authorized the use of force and stated that he instructed the checkers and organizers working for Local 208 not to use violence at any time. He testified that the only altercation of which he had personal knowledge was the Calkins-Copelan incident (hereafter referred to) and that the only reports he received of fights were in connection with occasions when "the C.I.O. had attacked some of these defendants." Other witnesses corroborated the testimony of Lewis that he had warned members of the union against the use of violence.

McKnight, who was dismissed from the union on charges preferred by Lewis, admitted on cross-examination that he had been "mad at him since." Shortly after the indictment, McKnight was questioned, and answered as follows: "Q. So you didn't talk to ... Lewis ... at all about any of these fights at any time? A. No. Q. In other words, all of your fights resulted from some particular occasion at the particular time? A. That is right. ... Q. You weren't out looking for a fight? A. That is right. ... Q. You were not under orders to go out and beat anybody up? A. No." It was also brought out on cross-examination of McKnight that he left Los Angeles at approximately the time the other defendants were arrested. He was apprehended in Kansas City and admitted that while he was there he had sent a telegram to a Los Angeles newspaper in which he stated, "... Would

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you be interested in a story that would convict Harry Dail and Dexter L. Lewis and others, and if so what price for same? Must be reimbursed for same because I will be a fugitive from justice tomorrow morning at 9:30." McKnight further admitted sending a postal card to Lewis in which he said, "I am afraid you are going to be sorry for not accepting those telephone charges. ... You have made a rat out of me. I will make just as good a rat as I did a union man."

The accomplice Burris testified for the prosecution that on several occasions he had received orders from Lewis to "go out and beat people up"; that in November, 1937, he made a trip to Delano in an automobile with the acquitted defendants King and O'Brien; that later that night they followed the automobile of a man who had spoken at a meeting in Delano and when they passed the other car he, Burris, threw a five-pound rock through its windshield. King and O'Brien denied that any such incident ever took place. Burris was also dismissed from the union on charges preferred by Lewis and shortly thereafter wrote letters to union members and officials which revealed a feeling of bitterness and animosity towards Lewis. There was also testimony that Burris had stated he had "engineered the break between the Teamsters Union in Wilmington and Local 208" and that it "was his ambition to become head of Local 208. ..."

The two accomplices, Williams and Johnson, testified they had received instructions from Lewis that "there were men that had to be 'dumped' ... men who went through picket lines, C.I.O.'s and nonunion men," and that they had participated in altercations and had struck persons while working as organizers for the Teamsters' Union. Lewis testified that these men were never employed by Local 208, and denied that he ever gave them instructions. It appears they had done some work for other [140 P.2d 832] locals and that they were frequently around Local 208.

In addition to the testimony of accomplices the prosecution introduced documentary evidence consisting of teletype messages and memoranda exchanged between Lewis and Dail with reference to the business of the union and labor conditions generally in the Los Angeles area. These messages and memoranda contained no reference to acts of violence and were apparently introduced in evidence for the purpose of showing the relationship between Dail and Lewis and Local 208. There was also introduced in evidence an expense item

Page 649

filed by one of the employees covering meals for members of a "goon squad." It appears that a check was issued by Lewis covering this item. In this connection Lewis stated, and his testimony was corroborated by other witnesses, that all expense items were first submitted to the treasurer for approval and the checks were then made out by a clerk and were presented to Lewis for signature without any accompanying memoranda, and that the original expense slips and office vouchers were not attached to the checks until they were canceled and returned to the office.

The evidence on which Copelan and Belanger were convicted of simple assault is also conflicting. As to count two, the evidence shows that the prosecuting witness Calkins, a member of Local 208, had been in arrears in his dues for several months prior to October 29, 1937, and that contrary to union regulations he had been driving a truck for a company operating as a union shop. Complaint also had been made that he had attempted to compel truck drivers to patronize a cafe owned by his wife. On the day of the assault alleged in count two, Copelan, Belanger and Lewis were at the...

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