People v. Osslo

• Decision Date: 13 May 1957
• Docket Number: Cr. 1306
• Citation: 310 P.2d 1020
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Max OSSLO, Joseph McFaden, Arthur Meyer, Chester D. Hazel, Louis J. Cacio, Paul E. Dempster, Jerry L. Dimitratos and Charles A. Tucker, Defendants and Appellant.*

Page 1020

310 P.2d 1020

The PEOPLE of the State of California, Plaintiff and Respondent, v. Max OSSLO, Joseph McFaden, Arthur Meyer, Chester D. Hazel, Louis J. Cacio, Paul E. Dempster, Jerry L. Dimitratos and Charles A. Tucker, Defendants and Appellant.*

Cr. 1306.

District Court of Appeal, Fourth District, California.

May 13, 1957.

Hearing Granted July 12, 1957.

Aaron Sapiro, Charles M. Arak, Los Angeles, and Charles P. Scully, San Francisco, for appellants.

Edmund G. Brown, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

MUSSELL, Justice.

Appellants were charged in count one of an Indictment with conspiracy to commit the crime of Assault (Pen.Code, § 182) and in a second count with the crime of Assault by Means of Force Likely to Produce Great Bodily Injury (Pen.Code, § 245) in that on or about October 22, 1955, they did wilfully, unlawfully and feloniously commit an assault by means of force likely to produce great bodily injury upon the person of one John H. Maurer, Jr. A jury trial resulted in verdicts finding each of the defendants guilty as charged in both counts of the Indictment. Their motions for a new trial were denied. Appellants Hazel, Cacio, Dempster, Dimitratos and Tucker were denied probation and sentenced to State prison. Probation was granted to appellant Osslo. The period of probation was ten years with the provisions that he be confined for the first six months of the probationary period in the Adult Detention Facility of San Diego county; that he pay a fine in the amount of $1,500 at the rate of $50.00 per month, from his own funds; that during the period of his probation he shall not hold any position, either elective or appointive, in, or receive any remuneration from, any union; that 'this Court and Judge shall retain jurisdiction of this matter throughout the said period of probation and no other department of the Court or other Judge shall modify this order without notice to the Judge who tried the case'. Probation was granted to appellants McFaden and Meyer on similar conditions, except that in Meyer's case the period of confinement was set at three months and the fine imposed was $750.00. Each appellant appeals from the judgment of conviction and the order denying his motion for a new trial. Their contentions on appeal are that the evidence was insufficient; that the court erred in its rulings on the admission of evidence; that the indictment was defective as a matter of law; that the conduct of the deputy district attorney was prejudicial; that the punishment imposed as to appellants Osslo, McFaden and Meyer was improper; and that appellants were denied a fair trial because the case was channeled into a particular court.

The record shows that a jurisdictional dispute arose in San Diego county between the local butchers' union and that of the retail clerks as to whether the butchers or the clerks would handle certain merchandise. Appellant Osslo was secretary-treasurer of the butchers' local and McFaden and Meyer were business agents for it. The other five appellants were or had been merchant seamen and all came from San Francisco to San Diego, ostensibly to accompany and protect the business agents of the San Diego butchers' local.

The five men from San Francisco arrived in San Diego a few days prior to October 22, 1955. They were in contact with appellants Osslo, McFaden and Meyer and attended a union meeting on October 21, 1955. On the following day, after being instructed by appellant Osslo, they accompanied McFaden and Meyer to various markets in San Diego, among which was Ferguson's Market in Chula Vista. They visited this market at about 11:00 a. m., where they conducted a 'slow down' with the butchers there, and left. Appellants McFaden and Meyer, with appellants Tucker, Cacio, Dempster, Hazel and Dimitratos, returned to Ferguson's Market at about 1:00 p. m. The five last named men surrounded John Maurer, Jr., a retail clerk, struck and kicked him, left him lying on the floor and departed hastily from the market. They were arrested shortly thereafter and made false statements to the officers concerning the occurrence in the market and their business in San Diego.

Fifteen overt acts are alleged in the conspiracy charge and relate to conversations and meetings of the appellants and agreements for their compensation. The trial of the action consumed approximately 18 days and there are 2,369 pages in the reporter's transcript. A summary of the testimony of the many witnesses follows.

Appellant Osslo was secretary-treasurer of the Butchers' Union, Local 229, in San Diego. He was also president of the Western Federation of Butchers. Early in September, 1955, there was a strike of the butchers at the Food , basket Market in Pacific Beach. This strike lasted about a week. There were about twenty persons on strike and they reported daily to the butchers' union hall in San Diego. Appellant Osslo and the executive board gave notification for this strike. There had been a complaint of a contract violation in that some twenty-three items containing meat and including 'TV' precooked dinners were being handled in the grocery department. Following this strike, the market brought an injunction action against the butchers' local and its officers, and after the injunction hearing, the disputed items were taken off sale. The contract which had been in effect at the Food Basket Market was up for renewal November 1, 1955.

About October 12, 1955, there was a strike of retail clerks at Ferguson's Market on El Cajon Boulevard. James R. Jackson, a business agent of the butchers' union in San Diego, there observed three pickets carrying signs and about twenty-five other persons, including a Mr. Marvin Brown and Mr. Herbert Langfeldt, business agents for the retail clerks, and possibly a Mr. Edgar Montgomery, Mr. Carroll Weathers and Mr. John Anderson. Jackson stayed in the area for several hours. Other members of the butchers' union, including appellant McFaden, were present, as well as two or three butchers who were employed at other markets. According to Jackson, in the late afternoon he was threatened by Brown and Langfeldt when they walked back in the alley and gave him a 'good look'. He also testified in this connection that before the 12th of October there was an arrangement that a certain number of butchers could be called together to the store where the strike was in progress. Jackson met appellants Dimitratos and Hazel at the butchers' hall on October 17, 1955. Prior to this date appellant Osslo had informed Jackson that Mr. Lundeberg, head of the Sailors' Union of the Pacific, with offices in San Francisco, was sending a couple of men down to San Diego to help the business agents, to go out with them and be their observers and see that they were not 'jumped from behind'. After appellants Hazel and Dimitratos met Jackson and others at the union headquarters on October 17, 1955, they went with Jackson and appellant Meyer to various stores and markets. They were checking contract violations at the markets as pointed out by Jackson and Meyer but their primary purpose was to protect the business agents and see that they were not 'jumped'.

At a union meeting on October 18, Dimitratos and Hazel were introduced to the membership and on the following day they went with Jackson and Meyer to Tang's Market at Pacific Beach. Jackson understood that there was a dispute there regarding merchandise which should be in the meat department and was in the grocery department. When they entered the market, Jackson was told that the clerks were taking all of the red meat. Jackson construed this remark as a threat and reported it to McFaden, who in turn reported it to Osslo. Jackson noted, while in the market, that Mr. Butler, a business agent for the retail clerks, was fumbling and handling a knife. While Jackson was at the market, Mr. Anderson, a business representative for the retail clerks, arrived and, according to Jackson, threatened him in 'the way he carried himself'.

Jackson testified that he understood that Osslo was contacted in Honolulu by McFaden, who asked for and received authorization to bring more men from San Francisco to San Diego; that these additional men were Tucker, Cacio, and Dempster; that they were hired and paid by the union $150.00 per week and necessary expenses. They arrived in San Diego by plane October 19th or 20th. Soon thereafter Osslo returned from Honolulu and on October 21 a meeting with the union membership was held in which the dispute was discussed and Osslo talked of a 'slow down'. At this meeting McFaden stated that Ferguson's Market, as well as others, was not cooperating with respect to frozen foods and a 'slow down' would be effected the following day. Jackson was to contract either Mr. Lindville or Mr. Ferguson at this market. On Saturday, October 22, at about 10:00 a. m., Jackson and his group left for Ferguson's market in two automobiles. One was a Ford, rented by the union, and the other was owned by Meyer. Dimitratos, Hazel, Cacio and McFaden were in the Ford, and Dempster, Tucker and Jackson were in the other car. The group arrived at Ferguson's at about 11:00 a. m. They inquired for Mr. Ferguson and Mr. Lindville and found they were not present. They then carried out a 'slow down' in which most of the butchers went into the meat cutting room and remained there for 35 to 40 minutes. While this was going on, Jackson, McFaden Dimitratos and Hazel were in the market and the others remained outside in the automobiles. The group then went to two markets in Chula Vista and there conducted a 'slow down' in one of them. They then returned to Ferguson's at about 1:00 p. m. Jackson noticed two clerks' representatives leaning against a post near the stairway. These men were Montgomery and Maurer and they were pointed out to Jackson by Lindville, who was a member of the butchers' union and a partner of Ferguson in the market. About a...