Davidson v. United States
| Decision Date | 07 June 1921 |
| Docket Number | 3462. |
| Citation | 274 F. 285 |
| Parties | DAVIDSON et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John J Sullivan, of Cleveland, Ohio, for plaintiffs in error.
Jos. C Breitenstein, Asst. U.S. Atty., of Cleveland, Ohio (E. S Wertz, U.S. Atty., of Cleveland, Ohio, on the brief), for the United States.
Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.
On the 26th day of March, 1920, the federal grand jury returned into the United States District Court for the Northern District of Ohio, Eastern Division, an indictment against these plaintiffs in error and John A. Moore. The first count of this indictment charges conspiracy to commit the offense of unlawfully, knowingly, and willfully interfering with the transmission of telephone messages over and by means of the telephone system of the United States while under control of the United States government. The second count charges the actual commission of this offense.
Upon the trial of the cause John A. Moore was, by direction of the court, found not guilty on either count.
Harry Davidson and James A. Smith were found guilty upon both counts. Richard Gavigan and Thomas Prendergast were found not guilty as charged in the first count, but guilty of the offense charged in the second count of this indictment.
Motions for new trial and in arrest of judgment were overruled, and separate sentences were imposed.
The plaintiffs in error ask a reversal upon two grounds:
(1) That the verdict is not sustained by sufficient evidence.
(2) Error of the court in the admission of evidence.
There are other assignments of error, but these are the only ones discussed in the brief of counsel for plaintiffs in error, and the only ones upon which counsel now rely.
Under the provisions of section 1011 of the Revised Statutes of the United States, this court has no authority to pass upon the weight of the evidence. Therefore, if there is any substantial evidence tending to support the verdict of the jury, the judgment of the trial court must be affirmed, in so far as this assignment of error is concerned.
It appears from the evidence that some time prior to July 23, 1919, the date of the alleged offense, a telephone union had been organized in the city of Cleveland and an official strike called by the Operators' Union and telephone men. These plaintiffs in error were not members of that union. Davidson and Smith were members of the Electrical Workers' Union, and Gavigan and Prendergast had filed their application for membership in the Electrical Workers' Union. While this strike was in progress the Bell telephone cables to the city hall were cut, and, on the day that the defendants are charged in the indictment with having committed this offense, workmen were employed in splicing and repairing these cables. This attracted a crowd at the city hall, and a large number of policemen were required to keep this crowd back from the place where the workmen were employed. Davidson was in front of the city hall where this crowd had assembled, both in the forenoon and afternoon of that day. Smith was there in the afternoon while this work was in progress. The evidence also shows that the nature of their employment required them to be at the city hall from time to time each day. This applies particularly to Davidson, but the testimony shows that his business at the city hall was inside the hall, and not out where the workmen were employed in repairing the telephone cable. The evidence, however, shows that he was outside watching this work during a large part of the entire day, and that he manifested considerable interest in it. One of the workmen engaged in this work of repair testified that Davidson asked him what he was going to do and he told him that the cables had been cut and 'we are going to fix them. ' Davidson replied, 'I don't think you are.' McMahon, the workman, then said to him, 'The city hall is all out of service, and they have got to have service. ' To this Davidson replied, 'The hell with the city hall. ' McMahon further testified that upon his return to this work after dinner, Davidson was standing at the same place where he was standing in the morning, when he had the first conversation with him; that, when he came up to Davidson he said, 'Hello, Harry,' or something to that effect, and that thereupon Davidson said to him, 'Oh, go to hell; I don't want to talk to you.'
C. M. Zimmerman, a post office inspector, testified that he saw Davidson there in the afternoon; that he was talking with a group of men about the men out at the manhole who were engaged in repairing the telephone cable; that he said they were 'strike breakers, and had been imported from out of town, or words to that effect'; that Davidson and the men with whom he was talking 'were congregated in the doorways on the landing'; that the police officers asked them to move away, and also asked them if they had any business there. Davidson replied, 'Yes; I have as much business here as these fellows,' pointing to the witness and another post office inspector named Smith, and Mr. Pannell a special agent of the Department of Justice. This was 2:30 in the afternoon. About 3:30 p.m. the plaintiff in error Smith came up the steps where Davidson was still standing. Davidson stopped him and asked him where he was going, but witness did not hear Smith's reply. Davidson then said to Smith, 'Stick around; there may be something doing here pretty soon.' Shortly after this the defendant Moore came up the steps where Davidson, Smith, and others were standing and said to them, 'It's too damned bad somebody don't throw a bunch of bricks over there among those strike breakers.'
A charge of conspiracy is one that is not easily susceptible of direct proof, nor is it essential to establish conspiracy that actual proof be offered of a definite plan or agreement entered into by conspirators. It is sufficient if the evidence shows such a concert of action in the commission of the unlawful act, or such other facts and circumstances upon which the natural...
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