People v. Osslo

• Decision Date: 26 March 1958
• Docket Number: Cr. 6127
• Citation: 50 Cal.2d 75,323 P.2d 397
• Parties: , 34 Lab.Cas. P 71,408 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 Appellants.
• Court: California Supreme Court

Page 397

323 P.2d 397

50 Cal.2d 75, 34 Lab.Cas. P 71,408

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 Appellants.

Cr. 6127.

Supreme Court of California, In Bank.

March 26, 1958.

Rehearing Denied April 23, 1958.

Writ of Certiorari Denied June 9, 1958.

See 78 S.Ct. 1152.

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.

SCHAUER, Justice.

Defendants were charged with (count I) 'Conspiracy to Commit the Crime of Assault (PC 182)' and (count II) 'Assault by Means of Force Likely to Produce Great Bodily Injury (PC 245).' A jury found them guilty as charged. Imposition of sentence upon defendants Osslo, McFaden, and Meyer was suspended and they were granted probation. Judgments of conviction were entered against defendants Hazel, Cacio, Dempster, Dimitratos, and Tucker. Defendants' motion for new trial was denied. Defendants appeal, respectively, from the probation orders and judgments and from the order denying their motion for new trial. They present a multifold attack upon the orders and judgments. Defendants urge that the evidence is insufficient; that there was prejudicial error in the admission and exclusion of evidence; that the charge of conspiracy to commit the crime of assault is not a charge of a crime known to the laws of this state; that there was prejudicial misconduct of the prosecuting attorney; that the punishment imposed upon defendants Osslo, McFaden and Meyer is improper and excessive; and that the case was erroneously channeled into a particular department of the superior court. For the reasons developed in the ensuing discussion we have concluded that these contentions are without substantial merit except that one of the terms, hereinafter described, of the orders granting probation to Osslo, McFaden, and Meyer is erroneous, and that the orders should be modified by striking out the erroneous provision.

The conduct and incidents involved in this prosecution arose out of a jurisdictional dispute in San Diego County between the local Butchers' Union and the local Retail Clerks' Union. Preceding this dispute members of the Clerks' Union employed in markets which stocked frozen and packaged dinners had handled the sale of such dinners. The Butchers' Union determined that its members rather than members of the Clerks' Union should have the handling of the frozen dinners which included a meat or poultry serving, and demanded that the markets govern their employes accordingly. The Butchers claimed 'violation of contract' by the markets' permitting Clerks to continue handling the dinner items and called a strike at one of the markets.

The Clerks endeavored to have the dispute settled through legal proceedings. About October 5, 1955, the secretary-treasurer of the Clerks' local wrote 'to the market operators informing them of the jurisdictional dispute and the stand the Clerks were taking.' Representatives of the Butchers and the Clerks met a few days prior to October 12 (according to one witness, prior to October 8). The secretary-treasurer of the Clerks' local 'made demand upon Mr. Osslo (who held various offices, hereinafter detailed, with the Butchers) to cause to have the merchandise in dispute at Ferguson's market, as an example, placed back under the jurisdiction of the Clerks, or our organization would take every legal means necessary to enforce he jurisdiction.' (Italics added.) Osslo 'pounded the table three times, stated he was boss of the West Coast and he would fight for jurisdiction.'

On October 18, 1955, four days before the assault of which defendants stand convicted, the Clerks filed with the National Labor Relations Board a petition 'for the purpose of having the Board determine who the jurisdiction belonged to.'

In contrast to the efforts of the Clerks to settle the controversy by legal proceedings, and inferentially to carry out the declaration of Osslo that 'he was boss of the West Coast and he would fight for jurisdiction,' the Butchers, assertedly for the purpose of providing 'observers' to accompany Butchers' representatives and assist in 'inspecting' markets which were permitting, or suspected of permitting, grocery clerks to sell the packaged foods, imported defendants Hazel, Cacio, Dempster, Dimitratos, and Tucker, hereinafter sometimes called the sailor defendants, from San Faancisco and started calling on the markets. ¹ The hereinafter described brutal assault and battery upon Maurer, a business agent for the local Retail Clerks, followed.

The evidence, pertinent portions of which are hereinafter summarized or quoted, is in some respects substantially conflicting, but in every respect is ample to support the verdicts. If the jury believed the prosecution witnesses and disbelieved the testimonies of those defendants who took the stand, they properly could have felt that the cumulative effect of the evidence was not only sufficient, but overwhelming. Study of the record constrains us to conclude that the latter view is correct. 'The rule applicable where there is evidence, circumstantial or otherwise, that a crime has been committed and that the defendant was the perpetrator thereof, has been many times reiterated by the reviewing courts of this state as follows: The court on appeal 'will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt. For it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground' of insufficiency of the evidence, 'it must be made clearly to appear that upon to hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. * * * We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.' If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.' (People v. Daugherty (1953), 40 Cal.2d 876, 885, 256 P.2d 911.)

Defendants' contentions require a rather extensive review of the evidence in order that they may be viewed and resolved in fair perspective to the entire case.

The Evidence. James Ray Jackson, a business agent for the Butchers, testified for the prosecution as a rather reluctant witness. His testimony, read as a whole, and in the light of the entire record, leads inevitably to the inference that the, sailor defendants, Dimitratos, Cacio Tucker, Dempster, and Hazel, who were neither members of the Butchers' Union nor residents of San Diego, were employed by the Butchers with the expectation that they would engage in acts of violence, although in terms Jackson insisted that they were employed merely as 'observers.' The substance of Jackson's testimony is as follows:

Jackson's duties as business manager were 'to sign contracts, work on grievances, check violation,' and 'I do organizing * * * and any other work that is necessary to do.' During the 18 years Jackson had been a member of the Butchers, defendant Osslo had been secretary-treasurer of the San Diego local to which Jackson belonged. Osslo was president of the Western Federation of Butchers, the affiliated butchers' unions of California, and a member of the board and executive committee of the International Butchers' Union at the time of the assault and battery (October 22, 1955). In June, 1956, Osslo was elected vice president of the International. Membership in the Butchers in the United States was about 300,000. Defendant McFaden had been a business agent of the San Diego local since 1941 and defendant Meyer had been a business agent since 1955.

About September 8, 1955, there was a strike of the Butchers at the Food Basket Market because of an asserted 'violation of contract' in that certain prepared and packaged complete dinners included meat items and such packages were being handled by the Clarks in the grocery department rather than by the Butchers. As a result of the strike the Food Basket Market brought an injunction suit against the San Diego local of the Butchers. The court ordered that the disputed prepared dinners be taken off sale. It may be inferred that a purpose of the order was the prevention of the sort of violent altercation which, as hereinafter related, forms the basis of defendants' conviction of assault.

Concerning the relations between the Clerks and the Butchers at the time of the Food Basket strike, Jackson testified as follows:

'Q. Now at Food Basket, * * * did you talk with the Clerks representative while you were on strike at Food Basket, by any chance? A.

Yeah, I guess we did. General conversation. * * *

'Q. Let me ask you this: Were you present at any conferences at which any of the Clerks representatives discussed the Food Basket situation with Mr. Osslo? A. Sir, I had my foot broken the day before anything like that was discussed, I believe, * * *

'Q. Do you, of your own knowledge, know whether or not any discussions were held between Mr. Osslo and representatives of the Retail Clerks Union? A. When?

'Q. After and at about the time of the Food Basket incident. A. No, sir. * * * I don't know. * * *

'Q. Now when was the contract that was in effect at Food Basket...