State v. Warren

• Decision Date: 04 April 1951
• Docket Number: No. 47453,47453
• Parties: STATE v. WARREN.
• Court: Iowa Supreme Court

Page 221

47 N.W.2d 221

242 Iowa 1176

STATE v. WARREN.

No. 47453.

Supreme Court of Iowa.

April 4, 1951.

Connolly, O'Malley & McNutt, of Des Moines, for appellant.

Robert L. Larson, Atty. Gen., Allan A. Herrick, Special Asst. Atty. Gen. of Des Moines, Robert R. Buckmaster, Special Asst. County Atty. of Waterloo, for appellee.

WENNERSTRUM, Chief Justice.

The defendant and ten other defendants were jointly indicted by the grand jury of Blackhawk County, Iowa and in the indictment it was charged that they conspired together to unlawfully interfere with and obstruct the police officers of Waterloo, Iowa, and the sheriff of Blackhawk County and his deputies in their efforts to prevent breaches of peace and other unlawful acts at and in the vicinity of the Rath Packing Company; also in preventing by force, violence and intimidation employees of the packing company from returning to work and from entering and leaving the premises of the packing plant, which said last referred to acts were in violation of an injunction obtained in the district court of Blackhawk County. Each of the defendants pleaded not guilty and was granted a separate trial. The defendant, Wilbert (Willie) Warren, was tried and found guilty by a jury. He was sentenced to a term of not to exceed three years in the state penitentiary at Fort Madison and pay the costs of the case. Section 719.1, 1946 (1950) Code, I.C.A. He has appealed and we here review the claimed errors in connection with his trial.

The incidents shown in the evidence developed by reason of a strike of the employees of the Rath Packing Company which commenced on March 16, 1948. The plant was closed by reason of this work stoppage for approximately one month. On April 17, 1948 it was reopened, after notice had been given to the employees by the company of its intention to do so. Several acts of violence, in which it is claimed the appellant was directly or indirectly involved, occurred on the last mentioned date and on several subsequent dates. On May 19 one, Rodman Baker, brought his wife, who was an employee of the packing company, to the plant on a motorcycle. When he stopped his machine for the purpose of permitting her to alight, he was surrounded by pickets. During an argument at that time the appellant, Wilbert Warren, struck Baker and he was knocked to the ground. On this same day while one, Fred Lee Roberts, was approaching the plant in his car, it was stopped, was rocked and tipped and at the time of this incident Roberts drew a gun and shot it. A striker was killed. The evidence in connection with these previously mentioned incidents and other events that ocurred during the strike show that Willie Warren participated in and was to a varying degree a party to each of them. It is shown that Warren used and spoke over a loud speaker operated by the strikers and by means of which the workers entering the plant were derided and the strikers were encouraged and directed in connection with their activities. It was also shown that at times the loud speaker was used in directing the strikers to limit their activities. The record discloses that Warren was an active participant in the strike activities and at definite periods during the strike served as a picket lieutenant, a departmental steward, and, on occasions, as officer of the day for the strikers.

We shall not set out the facts relative to the several incidents in detail at this point but will comment upon them later as our consideration of the claimed errors presented on this appeal require us to do so. In this connection it should be stated the evidence amply shows that Warren did participate and conspire with other defendants in doing the acts which are referred to in the indictment. The appeal is largely directed to claimed errors pertaining to the reception of evidence and its sufficiency.

I. On the evening of May 17, 1948, a striker's meeting was held. On this occasion men from St. Paul, who had been or were connected with the union involved in a packing house strike there, spoke at the Waterloo meeting. There is evidence that these men criticized the Rath strikers and told them that they should use rougher tactics. On May 18, 1948 it is shown that one, Krogman, was present at a union soup kitchen or headquarters, as were numerous other strikers. There is no direct testimony that the appellant, Warren, or any of the other defendants were present. Relative to this particular occasion Krogman testified, over the objection, that his statements would be 'heresay, incompetent and irrelevant', that he overheard two strikers converse, and the record in this connection is, as follows:

'Q. Now go ahead and relate the conversation. A. The conversation between these two men?

'Q. Yes. What you overheard. A. One seemed to be of the opinion they should do what they were doing at St. Paul. He said he was getting tired of sitting around and getting nothing accomplished, and the man he was talking to said he was going to ask the Union officials what they were going to do about it.'

It is the appellant's contention that the testimony heretofore set out was objectionable and should not have been admitted because of its hearsay character. A review of the record shows that none of the claimed conspirators was present at that time. There is evidence that Warren was present at the meeting where the St. Paul men spoke. This evidence was presented without any objection. The state seeks to justify the admission of this testimony on the basis that it was admissible on the theory that the claimed conspiracy may be, and generally is, proved by circumstantial evidence. It is our conclusion the reception of the testimony heretofore set out was objectionable. However, evidence of a similar character was received without objection in previous or later testimony concerning the meeting addressed by the St. Paul men. We believe that this error was not of such a prejudicial character to justify a reversal. State v. Walters, 178 Iowa 1108, 1117-1118, 160 N.W. 821; State v. Hassan, 149 Iowa 518, 528, 128 N.W. 960. The conspiracy has been definitely shown by other circumstantial evidence.

A further claimed error pertains to the admissibility of certain testimony given by the state's witness, Parker, a member of the Waterloo Police Department. He, in answer to an inquiry whether he knew a man by the name of Otterman, replied that he had seen Otterman around during the strike, that he didn't know whether he was a picket and that he saw him around May 19 and had a conversation with him. The appellant objected to this testimony on the ground that it was of a hearsay nature; that Otterman was not one of the main so-called conspirators; that there was no foundation showing any privity between Otterman and Wilbert Warren; and that Otterman had not been identified as a picket or a participant in the alleged conspiracy. To this objection the prosecution stated that it would later show that Otterman was a picket captain and had been on the picket line the morning in question.

Parker then testified that he asked Otterman about a meeting that was scheduled for the next day for the purpose of making an effort to settle the strike and that Parker then stated that he hoped something would come out of it and that Otterman then replied, in substance--if something didn't happen before the proposed settlement meeting. It is the claim of the appellant that no later connection was made showing Otterman as a picket captain or on the picket line during the morning of May 19. At the conclusion of the state's case, as well as at the conclusion of the submission of all the evidence, the appellant made a motion to strike all testimony that had been admitted over objections of the appellant. The court overruled this motion.

The state maintains that there was subsequent evidence connecting Otterman with the strike and the strikers' activities in that at a conference between the management of the packing company and the strikers, two union representatives were present and that the name of one of them was Howard Otterman. It is also brought out in the argument of the state that a Velma Otterman, who was a witness for the appellant, testified that her husband, Howard Otterman, was an officer of the day in connection with the strikers' activities. We believe there has been sufficient showing of an active participation on the part of Otterman in the strike activities. He is shown to have been an officer of the day and strike captain which was a similar position to that held by Warren. We believe there was no sound ground for the motion to strike the testimony of which complaint is made and that there was no error in not doing so.

There is a further claimed error in connection with the admission of certain testimony, which was later stricken by the court, given by a Howard Sawyer, a nonstriking employee of the company. It is the claim of the appellant that the evidence originally admitted was of such a character that the error of its original admission could not be cured by striking it from the record. The testimony of which complaint is made relates to an incident when two of the windows of Sawyer's home were broken early one morning. Objection was made to any testimony pertaining to this occurrence and it was agreed by counsel for both the state and the appellant that this objection should apply to all testimony pertaining to this occasion. It is shown that those who threw the rocks were not identified; that Sawyer shot at the car as it was leaving the home. He also testified he was sure he knew the voice of Ray Edsill, although he did not know him, and that he heard his voice that morning about 30 minutes after the windows were broken when a party called him on the telephone and directed an epithet toward him. He stated it was the voice of Ray Edsill. Edsill was charged with being a co-conspirator and it is shown by the record that he had spoken frequently over...