Dunham v. United States

• Decision Date: 24 April 1923
• Docket Number: 3998.
• Citation: 289 F. 376
• Parties: DUNHAM v. UNITED STATES ex rel. KANSAS CITY SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

289 F. 376

DUNHAM v. UNITED STATES ex rel. KANSAS CITY SOUTHERN RY. CO.

No. 3998.

United States Court of Appeals, Fifth Circuit.

April 24, 1923

Joseph Moore and Melvin F. Johnson, both of Shreveport, La., for plaintiff in error.

Philip H. Mecom, U.S. Atty., Aubrey M. Pyburn, Asst. U.S. Atty., and Wilkinson, Lewis & Wilkinson, all of Shreveport, La., for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

KING Circuit Judge.

The Kansas City Southern Railway Company had filed a bill in equity against the International Association of Machinists and others in the United States District Court for the Western District of Louisiana, at Shreveport, to enjoin said association and others from interfering with or obstructing said railway company in the operation of its trains or conducting its business as a common carrier of interstate commerce, or in carrying the mails, and also from interfering with any persons engaged in the service of the railway company or seeking employment from it in connection with said business, by personal injury, abusive epithets, or intimidation. On July 11, 1922, a temporary injunction was granted, enjoining certain named defendants, and all other persons who should by personal service or otherwise receive actual notice of said temporary injunction, from obstructing or interfering with said railway company or any one engaged in its service, or seeking employment from it, as above prayed, in actual concert with the defendants named, their officers, agents, servants, employees, or attorneys, or by participating with them.

On August 3d said railway company presented to said court its petition, alleging that on August 2, 1922, the plaintiff in error, Dunham, with others, unlawfully assaulted and beat up one W. C. Powell, an employee of said railway company, in furtherance of a conspiracy to prevent the conduct of its business as an interstate carrier and as a carrier of the United States mails, by intimidating, bulldozing, and beating its employees, so as to prevent said railway from employing or keeping in its employ persons to operate said road, in direct violation of said injunction. This petition was verified by one of the attorneys of the petitioning railway company and supported by an affidavit of said Powell setting forth the particulars of said assault. Said petition was entitled in the equity case in which said temporary injunction was granted.

Upon considering the petition and affidavit, the District Judge issued a rule directing Dunham to be apprehended and brought before the court at Shreveport, to be dealt with as the law might direct. Dunham was brought before the court at Shreveport on August 10, 1922, and admitted to bail in the sum of $1,500. The cause was ordered docketed on the criminal docket, to be proceeded with as a criminal case for criminal contempt, and the United States attorney ordered to be notified thereof by the clerk.

A trial by jury was ordered by the court, on the respondent's request, and the cause set for August 18th. The respondent filed an exception to the jurisdiction of the court at Shreveport to hear the cause in the Shreveport division, on the ground that the alleged contempt took place in the Lake Charles division of the Western district of Louisiana, and that the proceedings, being criminal, could only be tried there. This exception was overruled.

Demurrers general and special, were interposed, and overruled, except that the court sustained a special demurrer to the insufficiency of the allegation that the contempt was committed as a part of a conspiracy to interfere with interstate commerce, and allowed the movant to amend the petition, so as to allege that the act of contempt was done as a part of a conspiracy to interfere with such commerce. Respondent Dunham then answered, denying the charge. He admitted a general knowledge by hearsay of the injunction, but averred that he understood it to apply only to the strikers. On the trial the jury found Dunham guilty of the contempt charged recommending him to the mercy of the court. The court sentenced the defendant to be confined for six months in Caddo parish jail and pay a fine of $500. The respondent has prosecuted a writ of error to this court to review said judgment.

1. Respondent insists that, as this is a criminal contempt, and as the acts, committed in pursuance of the conspiracy charged as the contempt, were alleged to have been committed in the Lake Charles division of the Western district of Louisiana such contempt proceeding could be maintained, and a trial thereof had, only in said Lake Charles...