State v. Johnson

• Decision Date: 16 September 1940
• Docket Number: 8347.
• Parties: STATE v. JOHNSON.
• Court: South Dakota Supreme Court

293 N.W. 822

67 S.D. 459

STATE v. JOHNSON.

No. 8347.

Supreme Court of South Dakota

September 16, 1940

Appeal from Circuit Court, Minnehaha County; Lucius J. Wall, Judge.

Ralph Johnson was convicted of willful destruction, by the use of explosives, of property which was not the property of the accused, and he appeals.

Reversed.

Henry C. Mundt, of Sioux Falls, and John Connolly, Jr., and C. I McNutt, both of Des Moines, Iowa, for appellant.

Leo A Temmey, Atty. Gen., and E. D. Barron, State's Atty., of Sioux Falls, for respondent.

RUDOLPH Judge.

Shortly after seven o'clock on the morning of March 9, 1939, an explosion demolished the front end of a truck which was parked on Spring Avenue in the city of Sioux Falls. Defendant was charged under the provisions of Section 4327, R.C. 1919 (SDC 13.1605), which provides: "Every person who willfully destroys or attempts to destroy by the use of explosives, any property real or personal, public or private * * * not the property of such person, although the same is done under such circumstances as not to endanger the life or safety of any human being, shall be guilty of a felony * * *." The jury returned a verdict of guilty, and defendant has appealed.

The defendant for some time prior to March, 1939, had been an organizer for the Industrial Brotherhood of Teamsters, Stablemen, Chauffeurs and Helpers of America, Local 383, in Sioux City, Iowa, an affiliate of the American Federation of Labor. The truck in question was owned by a firm in Grand Island, Nebraska, which operated trucks quite extensively throughout Nebraska and several of the adjoining states. In 1937 the employees of this Grand Island concern who were members of the truckers union at Grand Island went on strike for approximately two weeks, and again in August, 1938, these employees struck for about three weeks, since which time the trucking concern has operated its trucks out of Grand Island, Nebraska, and employed union labor. On the evening of March 8th this truck in question left Grand Island with a union driver and arrived in Sioux Falls at approximately seven o'clock in the morning. The driver of this truck left it parked on Spring Avenue and, while he was in a restaurant eating breakfast, the explosion occurred. This Sioux City labor union owned a new Buick automobile bearing the Iowa license number 97--15947. The defendant and another man by the name of Fouts kept the keys to this car and used it in connection with union business, but the car was available for use by any of the officers of the union if they first obtained the keys from either the defendant or Fouts. The tollkeeper of the Yankton bridge testified that sometime after eleven o'clock p. m. on the night of March 8th, this car driven by defendant with Fouts as a passenger crossed the toll bridge at Yankton. A Mrs. Chaussee testified that on the morning of March 9th she was riding with her husband on Spring Avenue and, as they approached the point where the truck was later demolished, they were following a large black car, which had the appearance of being new. This car was described by Mr. Chaussee as a new Buick automobile bearing a Woodbury County license. Mrs. Chaussee testified that this car which they were following stopped suddenly along side of this truck, and that to avoid running into the car her husband applied the brakes on his car in such a manner that she "got quite a jolt"; these brakes were applied about fifteen feet behind the car which they were following, and her husband, without completely stopping the car, turned out and proceeded rather slowly around this Buick car; that she then observed the defendant sitting in the Buick automobile behind the steering wheel. She further testified that preceding the time her husband applied the brakes he was driving at a speed of thirty miles per hour; that, when the speed of the car was suddenly reduced, a pocketbook and notebook were jarred from her lap, her hat was pushed from its regular position on her head and, while going around this black automobile, she was adjusting her hat and recovering and replacing books which had slipped from her lap. After passing this car and going approximately eight blocks, Mrs. Chaussee got out of the car and entered the school building in Sioux Falls where she was teaching; after being in the building a few minutes she heard the explosion. Mrs. Chaussee had never seen the defendant before this occasion and testified to no identifying marks or characteristics from which she reached her conclusion. A few days following this incident Mrs. Chaussee was shown a group of five photographs among which was the photograph of defendant, which she identified as a picture of the driver of the Buick automobile. Thereafter the defendant was arrested at Sioux City and Mrs. Chaussee at a police "show up" at which the defendant appeared with several other men, identified the defendant as the driver of this Buick car.

Other witnesses testified to seeing various makes and types of cars within the vicinity of the explosion at about the time the explosion occurred. The...