People v. Meisenhelter

• Decision Date: 13 January 1943
• Docket Number: No. 26731.,26731.
• Citation: 381 Ill. 378,45 N.E.2d 678
• Parties: PEOPLE v. MEISENHELTER et al.
• Court: Illinois Supreme Court

381 Ill. 378

45 N.E.2d 678

PEOPLE

v.MEISENHELTER et al.

No. 26731.

Supreme Court of Illinois.

Nov. 17, 1942.

Rehearing Denied Jan. 13, 1943.

Error to Circuit Court, Macon County; William S. Bodman, Judge.

Harry E. Meisenhelter and others were convicted of malicious mischief, and they appeal.

Reversed and remanded with directions.John R. Kane, of Gillespie, for plaintiffs in error Harry E. Meisenhelter et al.

Karns & Bandy, of East St. Louis, and John R. Fitzgerald, of Decatur, for plaintiffs in error Stewart C. Lorton et al.

George F. Barrett, Atty. Gen., and Ivan J. Hutchens, State's Atty., of Decatur, for the People.

STONE, Chief Justice.

A jury in the circuit court of Macon county found plaintiffs in error, Harry E. Meisenhelter, Edwin Roy, Stewart C. Lorton, George Diehl and George Bruns guilty of the crime of malicious mischief. Motions for a new trial and in arrest of judgment were denied, judgment was entered on the verdict and they were sentenced to the penitentiary. They prosecute this writ of error to reverse that judgment.

The indictment in each of seven counts charges that plaintiffs in error and others therein named as defendants, on February 9, 1940, willfully, maliciously and feloniously injured, broke and destroyed a certain oil pipe line of the Texas Empire Pipe Line Company, a corporation, to the damage of the corporation in the sum of $5,000.

At the request of the prosecution a severance was granted to defendants Louise Schoof and Edward F. Foxx. The indictment as against Mack Ray and George E. Good was dismissed. Harry E. Meisenhelter, Edwin Roy and Stewart C. Lorton made motions for a severance and separate trials, which were denied. Plaintiffs in error with the remaining defendants were placed on trial and found guilty by a jury. A new trial was granted to Melvin E. Watkins and Cecil Wilson.

The pipe line injured was laid in the summer of 1939 and the early part of 1940. It extended through Macon county. It was laid with nonunion labor. Officials of unions representing various trades and crafts, doing the kind of work required in the laying of such a pipe line, endeavored to induce the construction company to employ union labor. Meisenhelter, business agent of the Decatur Local of the Common Laborers' Union, Lorton, as representative of the Boilermakers' Union in Macon and other counties in Illinois, Ray, representing the Teamsters' Union, and other labor officials, met with Wilbur J. Holleman of Tulsa, Oklahoma, representing Williams Brothers Construction Company, at the office of Joseph J. Vincent, Labor Conciliator for the State of Illinois. No agreement resulted from this meeting and the pipe line in question was completed in January, 1940.

Between 7 and 8 A. M. on February 9, 1940, the pipe line was bombed at a point near Boody, in Macon county. No issue is made of the fact that the pipe line was injured by the use of an explosive placed by human hands and that a large quantity of oil was lost. The only question of fact in this case is whether the defendants were the ones who bombed it or caused it to be bombed.

On July 16, 1941, the grand jury of Macon county returned two indictments, one charging plaintiffs in error and others with conspiracy to bomb, and the other with malicious mischief by bombing and injuring a pipe line of the Texas Empire Pipe Line Company. Soon after the return of those indictments Pearle Hoskinson pleaded guilty to the conspiracy indictment and asked for probation. The indictment before us was returned October 6, 1941. It charged malicious mischief, naming Meisenhelter, Foxx, Watkins, Roy, Wilson, Mack Ray, Schoof, George E. Good, Lorton, Diehl and Bruns, and charging the same bombing as the indictment returned July 16, 1941. It was dismissed as to Ray and Good, as stated. On December 4, 1941, on motion of the State's Attorney, the malicious mischief indictment returned July 16, 1941, was nolled. Pearle Hoskinson was not named in the indictment of October 6, 1941. He was the principal witness for the People in the conspiracy case as well as the later case. Motions of plaintiffs in error Diehl and Bruns to be discharged from further custody on the ground that they had been in custody without trial for more than four months, were denied.

Testimony connecting plaintiffs in error with the crime was given largely by Pearle Hoskinson, whose testimony was substantially as follows: The executive board of the Common Laborers' Union met in June, 1939. Meisenhelter, Roy, Wilson, Watkins, Foxx and Hoskinson were present. Meisenhelter stated that as nonunion workmen were employed in the construction of the pipe line, it would be necessary to have a slush fund, to be obtained from initiation fees, dues and reinstatements of members, to be held out by Louise Schoof and turned over to Roy as custodian. The following day Roy, in the presence of Meisenhelter and Hoskinson, instructed Louise Schoof to hold out money from initiation fees, dues and reinstatements and give the money to him, giving the members credit but destroying the stubs; to keep the records at home and keep track of the amount turned over to Roy. Meisenhelter stated to Schoof that this money was to be used for blowing up the pipe line. In July or August, 1939, Schoof, in the presence of Roy and Hoskinson, took two initiation fees of $50 each and delivered the money to Roy.

Hoskinson's testimony as to executive board meetings, the creation of the slush fund and agreement to blow up the pipe line, was corroborated by Roy, Wilson and Watkins. His testimony about the slush fund and Roy's instructions was corroborated by Louise Schoof. The State's evidence was further to the following effect: At a meeting of the executive board at which all members were present except George Cole, Meisenhelter said he was trying to get something done; that the slush fund was not building up very fast. Roy made a report of the amount then in the fund. In January, 1940, Meisenhelter and Hoskinson drove near the pipe line and picked out two spots where the pipe line could be blown. On their return Meisenhelter told Schoof they had picked out a spot. This testimony was limited to Meisenhelter. At the next board meeting, at which Meisenhelter, Foxx, Roy, Wilson, Watkins and Hoskinson were present, Meisenhelter stated the line was in Macon county and would be taken care of in a short time, and that Lorton was putting pressure on him to do something in this county. This statement was stricken as to Lorton.

The State's further evidence was to the following effect: On February 4, 1940, while Meisenhelter and Hoskinson were discussing the pipe line at Meisenhelter's house, Lorton, Bruns and Diehl came to the house. Lorton introduced Diehl to Jones and Bruns as Brown. Meisenhelter asked Lorton what he wanted with him and Lorton said: ‘We are ready to take care of that pipe line you wanted blown up.’ Meisenhelter and Lorton agreed it would cost $500. Lorton said: ‘You get the $500 and have it ready and these fellows will be back up the first part of next week.’ The money was to be paid to Diehl and Bruns. Monday morning, February 5, Meisenhelter ordered a meeting of the executive board at his house that night. Roy, Foxx, Wilson, Watkins, Meisenhelter and Hoskinson were present. Meisenhelter said that Buck (Lorton) and some of the fellows were up from East St. Louis the day before and talked about blowing up the pipe line and Lorton was sending up two fellows the first part of the week to blow it up and it would cost $500. Roy said he only had $135 in the slush fund. There was evidence that Meisenhelter borrowed money from two different persons and later paid it back and that at a meeting on February 9 Meisenhelter said, in the presence of Foxx, Roy, Watkins, Wilson and Hoskinson, that ‘those fellows' came to his house about 2 A. M., went to the basement and made up the bomb, and left.

At approximately 8 A. M. of February 9, 1940, the pipe line was blown up, causing a loss of oil valued at $1,150, and repairs to the pipe line cost $252.68. Statements of Roy, Watkins and Wilson, from which all names except that of the one making the statement were deleted, and in place of the deleted names the words ‘other persons' were substituted, were read to the jury. The court instructed the jury as to each statement that it was admissible only as against the defendant who made it and was not to be considered against any other defendant. Plaintiffs in error were sentenced to the penitentiary, Diehl and Bruns from one to ten years, with an advisory recommendation of a minimum term of eight years, Lorton and Meisenhelter from one to ten years, with an advisory recommendation of a minimum term of seven years, Roy to from one to ten years, with an advisory recommendation of a minimum of one year.

We will first discuss those assignments of error applicable to certain plaintiffs in error. Plaintiffs in error Diehl and Bruns insist it was error to refuse to discharge them under the statute requiring their release if not placed on trial within four months of their incarceration. They base this claim on section 18 of division XIII of the Criminal Code, (Ill.Rev.Stat.1941, chap. 38, par. 748,) which provides: ‘Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exertion has been made to procure the evidence on the part of the People, and that there is reasonable grounds to believe that such evidence may be procured at a later day in which case the court may continue the cause for not more than sixty (60) days.’

This statute was enacted to give practical effect to section 9 of the bill of rights, Smith-Hurd Stats. Const., securing to the accused in a...