State v. Keul

• Decision Date: 20 October 1942
• Docket Number: 45835.
• Citation: 5 N.W.2d 849,233 Iowa 852
• Parties: STATE v. KEUL.
• Court: Iowa Supreme Court

5 N.W.2d 849

233 Iowa 852

STATE v. KEUL.

No. 45835.

Supreme Court of Iowa

October 20, 1942

[Copyrighted Material Omitted]

John Connolly, Jr., C. I. McNutt, George E O'Malley, and Irvin I. Schlesinger, all of Des Moines for appellant.

John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., Judge A. A. Herrick, Sp. Asst. Atty. Gen., and Francis J. Kuble, Co. Atty., of Des Moines, for appellee.

OLIVER Justice.

The indictment charged that Carl Keul (appellant), Joe Keul, Leo Quinn, Walter Watson and Ted Beebe conspired together with malicious intent wrongfully to injure the business, property or rights in property of Mercer Nicholson as defined in Section 13162, Code of Iowa 1939. Carl Keul was granted a separate trial. Upon trial to a jury he was convicted. From judgment thereon he appeals.

The parties charged as conspirators were officers and agents of Local No. 90 (Des Moines) of the truck drivers' and warehousemen's union. Mercer Nicholson owned and operated a truck line between Des Moines and Chicago. He had no permit to operate in interstate commerce and conducted his operations under leases or contracts with other parties who held such permits.

In April and December, 1940, Nicholson's operations were stopped by strikes called by some of the defendants. The State introduced evidence of declarations of all the alleged conspirators that they were going to stop Nicholson from operating and of similar declarations by the various defendants, in substance, Nicholson is through and will never operate again--Nicholson will never operate again in Des Moines or Chicago. There was evidence that appellant told Nicholson, in substance, You have had a good business and you will again if I let you go, you will be out of my control and I am not going to do it. The party under whose permit Nicholson's trucks had been operating, and who had a contract with the union, testified that after the strike was called in December, 1940, he was told by appellant that he (the witness) could no longer use Nicholson's trucks. A day or two later this party cancelled his lease or contract with Nicholson.

I. Appellant assigns as error the overruling of his motion for a bill of particulars. The ruling was correct. The indictment, together with the attached minutes of the evidence which consisted of 129 typewritten pages, informed appellant of the particulars of the offense charged sufficiently to enable him to prepare his defense. See Code Section 13732.04. Notices of additional testimony complied with Code Section 13851. State v. Loucks, 218 Iowa 714, 253 N.W. 838.

II. Appellant contends the trial court erred in overruling his motion for directed verdict, based upon the insufficiency of the evidence. He was charged with conspiring with the others with malicious intent wrongfully to injure the business, etc. of Nicholson. The State produced evidence of statements and declarations of the accused man, reference to some of which has already been made, and of numerous transactions, in which they participated, connected with the strikes and with the trucking operations of Nicholson and others.

Appellant asserts the activities of defendants were lawful and proper in connection with their duties as representatives of the labor union. The right to form labor unions and by lawful means to act in furtherance of their legitimate purposes is not open to question. Section 9916, Code of 1939; Smythe Neon Sign Co. v. Local Union, 226 Iowa 191, 284 N.W. 126.

However, the lawfulness of a union and its right to engage in legitimate strikes and other activities may not be used as a shield by those who enter into a combination, by concert of action, to accomplish the unlawful purpose of injuring the business of another. The agreement to accomplish such purpose is a conspiracy.

Many circumstances assertedly tending to indicate appellant's innocence or guilt of the conspiracy charged in the indictment have been noted by opposing counsel. These and other matters shown in evidence have been considered but will not be here discussed in detail. Under the record we think the question of defendant's guilt of the crime charged was for the jury and that the court did not err in so ruling. State v. Caine, 134 Iowa 147, 111 N.W. 443.

III. Over objections of appellant the court permitted the State to introduce certain evidence of alleged transactions between the parties accused of conspiracy and third parties, similar to those upon which the charge was based. Some of this evidence may have tended to show the commission of offenses other than that for which appellant was on trial. The general rule is that the State is not permitted to introduce evidence to prove the accused has committed offenses not charged in the indictment. To this rule there are certain exceptions one of which is that evidence bearing upon the question of intent is not rendered inadmissible because it may incidentally tend to prove defendant's guilt of some other crime. In this case the intent with which the alleged conspiracy was formed was an essential element. To show intent (and perhaps for other purposes within the exceptions to the general rule) the evidence in question appears relevant to appellant's guilt of the crime charged. Therefore, the fact that some or all of said transactions in themselves may have been substantive offenses did not render such evidence inadmissible. State v. Brady, 100 Iowa 191, 69 N.W. 290, 36 L.R.A. 693, 62 Am.St.Rep. 560; State v. Donavan, 125 Iowa 239, 101 N.W. 122; State v. Hickman, 195 Iowa 765, 193 N.W. 21; State v. Leeper, 199 Iowa 432, 200 N.W. 732; 22 C.J.S., Criminal Law, § 686, p. 1100.

IV. Appellant complains that the court overruled numerous objections to the admission of evidence of acts and conversations of alleged co-conspirators not in his presence. The crime charged is a conspiracy. It may be shown by circumstantial evidence. Where a prima facie case of conspiracy has been established, acts done and words spoken by one or more of the conspirators pursuant to the unlawful plan may be shown against the other conspirators regardless of whether or not they were present at the times in question. State v. Davis, 230 Iowa 309, 297 N.W. 274; State v. Moore, 217 Iowa 872, 251 N.W. 737; State v. Caine, 134 Iowa 147, 111 N.W. 443; State v. Schreck, 231 Iowa 542, 1 N.W.2d 690. Practically all the evidence objected to was clearly admissible under the foregoing doctrine. The evidence admitted under the few rulings which might be considered questionable was not such as to suggest prejudice, even though, for the purpose of argument, said rulings be assumed erroneous.

V. Error is assigned to the overruling of repeated objections to most of the questions propounded by the State in the cross-examination of six witnesses who had testified that appellant's general reputation in the community as a law abiding citizen was good. The background for these questions was a milk drivers' strike in Des Moines. It is not contended that the strike, which occurred prior to the alleged conspiracy, was in any manner related to the conspiracy so that evidence concerning the strike would have been admissible as an aid in proving said charge. Nor did the direct examination touch upon the strike. However, it is asserted the cross-examination was proper for the purpose of testing the credibility of the witnesses.

It is well established that a witness who testifies to the good reputation of a defendant, relative to certain traits of character, may be asked, upon cross-examination, whether he has heard reports and rumors of particular acts or vices of said person inconsistent with the repute attributed to him by the witness. This is permissible to test the credibility of the witness by ascertaining his good faith, his conception of good reputation, the extent of his information and his accuracy, but not for the purpose of proving such acts or conduct. State v. Wheelock, 218 Iowa 178, 184, 254 N.W. 313, 317; State v. Kimes, 152 Iowa 240, 132 N.W. 180; State v. Rowell, 172 Iowa 208, 154 N.W. 488; State v. Arnold, 12 Iowa 479; Spalitto v. United States, 8 Cir., 39 F.2d 782; 71 A.L.R. 1504 note; 20 A.J. 306; 70 C.J. 642; 22 C.J.S., Criminal Law, § 678, pp. 1078, 1079. But a witness who testifies to reputation only, as distinguished from character, should not be cross-examined as to conduct of the party within the personal knowledge of the witness. State v. Poston, 199 Iowa 1073, 1075, 203 N.W. 257, 258.

In this case the first phase of the cross-examination of each witness dealt with socalled reports and rumors (apparently newspaper stories) that during the milk drivers' strike, Watson, Joe Keul and Beebe, three of appellant's co-defendants who were officers in Local Union 90, for which he was business agent, attacked certain milk drivers with gas pipes and clubs. The record indicates the newspaper stories did not connect appellant with the violence or refer to him in any way. Nor was it suggested that he participated in the rumored violence.

The witness Baker was asked:

"Q. Have you heard any reports or rumors concerning Carl Keul's connection with a certain milk strike in 1938, where there was violence and several persons were beaten up with lead pipes, gas pipes?" The witness answered that he did not hear anything about Carl Keul being implicated in it; that he heard what was in the papers about the violence.

After the witness, Heaps, testified he heard no reports and rumors, his cross-examination continued:

"Q. Rumors and reports to this effect, that while Carl Keul was business representative of Local No. 90, in 1938, men with whom he was associated in that Union resorted to violence and lawlessness during the milk strike of 1938.

"Q. Now I am asking you, if you heard...