State v. Postal
| Decision Date | 18 June 1943 |
| Docket Number | No. 33398.,33398. |
| Citation | 10 N.W.2d 373,215 Minn. 427 |
| Parties | STATE v. POSTAL. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; A. W. Selover, Judge.
Kelly Postal was convicted of grand larceny in the first degree, and he appeals from an order denying his motion for a new trial.
Affirmed, with direction.
D. J. Shama and Elwood Fitchette, both of Minneapolis (John Ott, of Minneapolis, of counsel), for appellant.
J. A. A. Burnquist, Atty. Gen., Ralph A. Stone, Asst. Atty. Gen., and Michael J. Dillon, Co. Atty., and Per M. Larson, Asst. Co. Atty., both of Minneapolis, for respondent.
Defendant was indicted, tried, and convicted of grand larceny in the first degree and appeals from an order denying his motion for a new trial.
For some time prior to June 9, 1941, defendant was secretary-treasurer of General Drivers and Helpers Union, Local No. 544, Minneapolis, which existed by virtue of a charter granted by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, hereinafter referred to as I. B. T., which, in turn, was organized under a charter of the American Federation of Labor, hereinafter referred to as A. F. of L. The constitution of I. B. T., as far as material here, provides:
(1) That no one who is a member of the Communist party or who subscribes to its doctrines shall be a member of any local union;
(2) That if the president of I. B. T. has or receives any information leading him to believe that the officers of a local union are dishonest or incompetent or that the union is not being conducted for the benefit of the trade, he may appoint a trustee to take charge of the affairs of the union;
(3) That such trustee shall have power to remove union officers and appoint temporary officers in their stead;
(4) That suspended officers shall turn over all moneys, books, and property of the union to the trustee;
(5) That "it shall be compulsory upon all local unions to keep their money deposited in reliable banks in the name of the local unions, and all moneys paid out for the local union must be paid by check upon the order of the local union and signed by the proper officials"; and
(6) That "No local union can dissolve while there are seven (7) dissenting members."
The record discloses that prior to June 9, 1941, there was considerable friction within Local 544, A. F. of L., between certain members of the union and its officers. The dissatisfied element formed a committee known as the "Committee of 100" (with an estimated membership of 500 to 700), which filed formal charges against certain officers of the local union, including this defendant, on the grounds that they were members of the Communist party or subscribed to its doctrines in violation of the constitution of I. B. T. The charges also alleged that the executive board, of which this defendant was a member, hired persons, including this defendant, who were grossly negligent in the performance of their duties. After these charges were made, there was a meeting held by several members of the I. B. T. executive board in Chicago, which defendant, Miles Dunne, then president of Local 544, and Ray Rainbolt, recording secretary, attended. This meeting was held in April 1941. On June 3, 1941, another meeting was held in Washington, D. C., presided over by Daniel Tobin, president of I. B. T., at which Vincent Dunne, Ray Rainbolt, and defendant represented the executive board of Local 544. There were also representatives of the Committee of 100 who had preferred the charges. From this record, it does not appear that any definite action was taken at either of these meetings, except that it was generally understood that if the executive board of Local 544 did not petition for a trustee to be appointed to manage the affairs of the union Tobin would proceed to do so, as he had a right to do under the constitution. It also appears that while this defendant and the other members of his committee were in Washington they conferred with one A. D. Lewis, brother of John L. Lewis, in regard to affiliation of Local 544 with the Congress of Industrial Organization, hereinafter referred to as C. I. O.
On Sunday, June 8, 1941, a meeting was held in the Union Hall in Minneapolis which was attended by several hundred persons. It appears that not all of the 5,000 members of Local 544 were notified of this meeting, and in fact only those who possessed a blue admittance card were admitted. It is apparent that only members who were sympathetic with the executive officers obtained these cards. Defendant was not present. At this meeting, several speeches were made, including one by Farrell Dobbs, who, although a member of Local 544, had not made his residence in Minneapolis for some time nor had he been engaged in any craft in that city but who was in fact living in the East and was in the employ of the Socialist Workers' Party.
Next evening, June 9, 1941, the regular membership meeting of Local 544 was held in a large hall on the third floor of Union Hall which held about 1,000 persons, and on that night it was packed to the doors. The overflow crowd was gathered in several other halls in the same building, including the basement, and still others, who were unable to get into the building, stood on the sidewalk. A loud speaker system was installed in the main hall so that those in the other halls, in the basement, and on the street could hear what transpired in the main hall, but they could not take part in the proceedings. Defendant was present at this meeting. Speeches were given by Miles Dunne and Farrell Dobbs, the general tenor of which expressed disatisfaction with I. B. T., Daniel Tobin, the Committee of 100, and those who opposed the policies of the executive board. It is apparent that this meeting was somewhat disorderly and that emotions ran high. A resolution was introduced by Miles Dunne that all the funds, property, and records of Local 544 be turned over to a "Union Defense Committee" to be held by it in trust for the general membership. This motion was put to a voice vote and was declared carried. A second resolution was immediately offered to the effect that 544 disaffiliate itself from I. B. T. and affiliate with C. I. O. This motion was also put to a voice vote and was declared carried. Several of the state's witnesses testified that they were present at this meeting and attempted to get the floor to speak against this resolution but were ruled out of order. One Axel Soderberg did speak against the resolution, but it is not clear whether that was before or after its passage. State's witnesses testified that the volume of "noise" made by the voters on these resolutions was about equal as to "Ayes" and "Noes." Defendant's witnesses testified that the resolutions carried with only a few dissenting votes. But there is abundant evidence that more than seven members objected. Even defendant's witnesses admitted a dozen dissenting votes. Obviously, those in the other halls or on the street, while they could hear the speeches and voting, did not vote. A large banner reading "544 C. I. O." was displayed, and the meeting adjourned amid much tumult.
About a month before the above described meeting, defendant who as secretary-treasurer had control of the funds of Local 544, instructed his secretary to cease banking the cash receipts, contrary to the constitution of I. B. T., and to retain them in his office. As dues were two dollars per month for each of the approximately 5,000 members, a large sum of money passed through defendant's hands. The $5,000 specified in the indictment is a part of this amount. Defendant claims that he did this at the instruction of the executive board, of which he was a member, and that the directions were given for two reasons: first, to accumulate a cash fund in case of strike trouble (most of the employers' contracts expired on or about June 1, and although nearly 400 strike notices were filed with the State Labor Conciliator, only one strike materialized); second, to "protect" the funds of the union from any trustee who might be appointed by Tobin.
Defendant took the $5,000 in question from the office of 544 in currency. On May 28, 1941, defendant and Miles Dunne had a conference with one Larry Davidson, who was secretary-treasurer of Local 977, and, according to the testimony of defendant and Dunne, arranged to deliver the money to the bookkeeper for Local 977 as a "loan" to that union. Defendant delivered the money, got a receipt for it, and on June 9 the bookkeeper returned apparently the same currency to defendant unused. The same night defendant turned the money over to Rainbolt, who was chairman of the Union Defense Committee. It is defendant's claim that this was done pursuant to the resolution passed earlier that evening as above described. The money was subsequently used for "organizational" purposes of the new 544, C. I. O.
It is the state's claim that defendant was a member of a conspiracy to steal the $5,000, which was the property of Local 544, A. F. of L., and that the theft was accomplished. Defendant's claim is that the money was taken openly, in good faith, and under a claim of right pursuant to directions of the executive board and the resolution passed at the above described meeting directing him to turn the funds over to the Defense Committee. The appeal is based on three grounds: (1) Insufficiency of the indictment (2) admissibility of certain evidence; and (3) erroneous instructions to the jury.
1. Defendant challenged the sufficiency of the indictment, which charges grand larceny in the first degree, in that on June 10, 1941, he appropriated to his own use $5,000 genuine, lawful, and current money of the United States from Minneapolis Drivers and Helpers Union Local 544, an unincorporated association, whose membership, defendant asserts, could readily have been ascertained by the grand jury but whose names were alleged to be unknown to...
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