Russell v. United States

• Decision Date: 19 November 1936
• Docket Number: No. 10593.,10593.
• Parties: RUSSELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

86 F.2d 389 (1936)

RUSSELL v. UNITED STATES.

No. 10593.

Circuit Court of Appeals, Eighth Circuit.

November 19, 1936.

Francis Heisler, of Chicago, Ill., and Gilbert E. Carlson, of St. Paul, Minn., for appellant.

George A. Heisler, Asst. U. S. Atty., of St. Paul, Minn. (George F. Sullivan, U. S. Atty., of St. Paul, Minn., on the brief), for the United States.

Before GARDNER, SANBORN, and FARIS, Circuit Judges.

FARIS, Circuit Judge.

Appellant convicted of a criminal contempt of court, and sentenced to imprisonment for a term of four months, sued out this appeal in due form. Shortly stated, the contempt charged consisted in appellant's "having knowingly, willfully and unlawfully resisted the execution by the United States Marshal for the District of Minnesota of a certain writ of replevin duly issued by this court (the United States District Court for the District of Minnesota) in a certain action pending in this court, entitled `Peacock Knitting Company, a corporation, plaintiff v. Strutwear Knitting Company, a corporation, defendant.'"

The antecedent facts necessary to make clear the acts of the appellant and the legal contentions now urged by him, run thus: For some time prior to November 27, 1935, a dispute had been pending between the Strutwear Knitting Company and its employees, and the place of business of said company had been picketed day and night by such employees, who were on a strike. Theretofore, and on November 21, 1935, the Peacock Knitting Company, a corporation, organized and existing under the laws of the state of Missouri, with its principal place of business in the city of St. Joseph, Mo., filed an action in replevin, in the United States District Court for the District of Minnesota, against the Strutwear Knitting Company, a corporation, organized and existing under the laws of the state of Minnesota, and having its principal place of business in the city of Minneapolis, Minn.

In and by this action in replevin, plaintiff therein sought to recover from defendant therein, the possession of certain personal property, namely, goods, wares, merchandise, furniture, machines, and appliances, which plaintiff therein alleged were being unlawfully detained by said defendant, the value of which plaintiff alleged to be in excess of $4,000. The petition, or complaint, from which we take the above facts as to corporate organization, places of business of the parties and the value of the property in dispute was duly verified, as was also the affidavit in replevin filed with the complaint. Thereafter, and on the same day, a writ of replevin was issued by the federal District Court to the United States Marshal for the District of Minnesota, commanding such Marshal to take the property from the defendant in the replevin action, and unless a forthcoming bond should be made by such defendant within three days, to deliver it to the plaintiff in said action.

On the 27th day of November, 1935, the United States Marshal, through his deputies undertook to execute the writ of replevin. To this end a number of Deputy United States Marshals with trucks, convoyed by the local police, proceeded to the place of business of the Strutwear Knitting Company in Minneapolis; but upon reaching this place of business they were met by a mob of rioters, some 50 or 75 in number, who assaulted the Deputies, by hurling rocks toward and at them and at the trucks, striking the trucks and breaking the windshields and windows thereof. So vigorous was this assault, that the Deputy Marshals left the plant, without executing the writ.

It is not shown by the record, that appellant was present on the 27th when the rock-throwing assault occurred, but it fairly appears that one Swanson and one Ellis, who were jointly tried with him were present. On November 29, 1935, the United States Marshal got other trucks, and again proceeded to execute the writ of replevin. These trucks were also in charge of Deputy Marshals wearing badges of office as such, and the trucks bore signs to the effect, that they and their contents were in the custody of the United States Marshal acting under the order of the United States District Court. When these trucks turned in from the street in order to get on a private concrete driveway, leading to the rear of the plant where they were to be loaded with the replevined goods, they were met by a large crowd of persons, in two groups, rocks were again thrown, but the crowd was dispersed and the trucks went to the rear of the plant and loading proceeded. Neither appellant nor his particular group threw any rocks, but he was among them taking kodak pictures, with what object does not appear. For he was not, nor had he ever been an employee of the Strutwear Knitting Company, and if he was, or had ever been a member of any Union Labor unit, the record does not disclose the fact. He was a stranger to the pending dispute between the Strutwear Knitting Company and its striking employees, "until," as his counsel ingenuously said in answer to a question, "he threw the milk bottles."

While the trucks were loading, appellant and another, whose identity is dark on the record, intentionally dropped and broke two quart-size milk bottles on the concrete roadway over which the pneumatic-tired trucks must pass in going from the plant to the street. Appellant is clearly shown to have broken one of these bottles, and after doing so to have kicked the shards around with his foot to secure better distribution. He was ordered by a police officer to pick up the glass débris; he refused, and was arrested by the police, and later an information against him was filed in the United States District Court for contempt, and his trial and conviction followed.

For reversal appellant assigns as errors, that (a) the court erred in denying the motion of appellant to quash the writ of attachment and to strike out the information, because the court was without jurisdiction in the replevin action, for that, said action was a fraud upon the court and collusive between the parties thereto; (b) the court erred in denying appellant's application for the issuance of a subpœna duces tecum to the plaintiff and defendant in the replevin action, commanding them to bring into court all documents, papers, and records pertaining to the incorporation of the Peacock Knitting Company and to all financial transactions between said plaintiff and defendant; (c) the court erred in denying appellant's request for a trial by a jury; (d) the court erred in consolidating for trial, the case of appellant with those of Swanson and Ellis; and (e) that the evidence of appellant's guilt was not sufficient to warrant his conviction, in the light of the rule which gives him the benefit of a reasonable doubt.

The motion of appellant to quash the attachment and strike out the information for contempt for alleged lack of jurisdiction was bottomed on the theory that the replevin action had no basis in good faith, but was the result of collusion between the plaintiff therein and the defendant therein, whereby defendant therein should be enabled to procure the protection of orders of a federal court, while it moved its picketed property and business from Minnesota to Missouri, and from its own possession to the possession of its alleged creature and alter ego, the plaintiff. This theory obviously involves sinister inferences of the invasion of personal and property rights, touching freedom of action, in the transfer of property and the place of carrying on business and manufacture. But with these latter things we have presently no concern.

It is, as appellant urges, settled and well-nigh fundamental, that no one may be adjudged guilty of a criminal contempt, as here charged for interfering with the carrying out of an order, or a decree of court, which the court had no jurisdiction to enter. Beauchamp v. United States (C.C.A.) 76 F.(2d) 663; In re Fisk, 113 U.S. 713, 5 S.Ct. 724, 28 L.Ed. 1117; Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405; In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216. But, since a prosecution for a criminal contempt is between the public and the defendant therein, such prosecution is not a part of the cause out of which the contempt arose (O'Hearne v. United States, 62 App.D.C. 285, 66 F.(2d) 933, loc.cit. 935; Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A.(N.S.) 874); it is equally as well-settled, that the jurisdiction cannot be the subject of a collateral attack. Here, there can be no doubt, that the federal court had jurisdiction to issue a writ of replevin and cause it to be executed present the requisite diversity of citizenship as here, and when more than the value of $3,000 was involved. The complaint on its face was regular, and it showed that the sum or amount in dispute was $4,000 and that plaintiff therein is a Missouri corporation and defendant therein a Minnesota corporation. So, since the alleged lack of jurisdiction could only arise extrinsically, and depended on evidence for its solution, such evidence and solution...