274 F. 285 | 6th Cir. | 1921
On the 26th day of March, 1920, the federal grand jury returned into the United States District Court for the Northern District of Ohio, Eastern Division, an indictment against these plaintiffs in error and John A. Moore. The first count of this
Upon the trial of the cause John A. Moore was, by direction of the court, found not guilty on either count.
Harry Davidson and James A. Smith were found guilty upon both counts. Richard Gavigan and Thomas Prendergast were found not guilty as charged in the first count, but guilty of the offense charged in the second count of this indictment.
Motions for new trial and in arrest of judgment were overruled, and separate sentences were imposed.
The plaintiffs in error ask a reversal upon two grounds:
(1) That the verdict is not sustained by sufficient evidence.
(2) Error of the court in the admission of evidence.
There are other assignments of error, but these are the only ones discussed in the brief of counsel for plaintiffs in error, and the only ones upon which counsel now rely.
Under the provisions of section 1011 of the Revised Statutes of the United States, this court has no authority to pass upon the weight of the evidence. Therefore, if there is any substantial evidence tending to support the verdict of the jury, the judgment of the trial court must be affirmed, in'so far as this assignment of error is concerned.
It appears from the evidence that some time prior to July 23, 1919, the date of the alleged offense, a telephone union had been organized in the city of Cleveland and an official strike called by the Operators’ Union and telephone men. These plaintiffs in error were not members of that union. Davidson and Smith were members of the Electrical Workers’ Union, and Gavigan and Prendergast had filed their application for'membership in the Electrical Workers’ Union. While this strike was in progress the Bell telephone cables to the city hall were cut, and, on the day that the defendants are charged in the indictment with having committed this offense, workmen were employed in splicing and repairing these cables. This attracted a crowd at the city hall, and a large number of policemen were required to keep this crowd back from the place where the workmen were employed. Davidson was in front of the city hall where this crowd had assembled, both in the forenoon and afternoon of that day. Smith was there in the afternoon while this work was in progress. The evidence also shows that the nature of their employment required them to be at the city hall from time to time each day. This applies particularly to Davidson, but the testimony shows that his business at the city hall was inside the hall, and not out where the workmen were employed in repairing the telephone cable. The evidence, however, shows that he was outside watching this work during a large part of the entire day, and that he manifested considerable interest in it. One of the workmen engaged in this work of repair testified that Davidson asked him what he was going to do and he told him that the cables had been cut and “we are going to
C. M. Zimmerman, a post office inspector, testified that he saw Davidson there in tlie afternoon; that he was talking with a group of men about the men out at the manhole who were engaged in repairing the telephone cable; that he said they were “strike breakers, and had been imported from out of town, or words to that effect”; that Davidson and the men with whom he was talking “were congregated in the doorways on the landing”; that the police officers asked them to move away, and also asked them if they had any business there. Davidson replied, “Yes; I have as much business here as these fellows,” pointing to the witness and another post office inspector named Smith, and Mr. Pannell a special agent of the Department of Justice. This was 2:30 in the afternoon. About 3:30 -p. m. the plaintiff in error Smith came up the steps where Davidson was still standing. Davidson stopped him and asked him where he was going, but witness did not hear Smith’s reply. Davidson then said to Smith, “Stick around; there may be something doing here pretty soon.” Shortly after this the defendant Moore came up the steps where Davidson, Smith, and others were standing and said to them, “It’s too damned bad somebody don’t throw a bunch of bricks over there among those strike breakers.”
This evidence discloses that Davidson, by bis remarks from time to time, not only identified himself with the crowd that collected about the men engaged in making these repairs, but demonstrated that his sympathies -were with the strikers; that he was opposed to the repair of these cables and antagonistic to the workmen employed in making tlie same. Not only did his statements to these workmen and to the police officers who asked him to move, evidence that he had more than passing interest in the transactions of that day, but his statement to Smith, “Stick around; there may be something doing here pretty soon,” manifested his readiness to join in the accomplishment of tlie purpose of this conspiracy as stated in the indictment. The presump-
But, if this evidence were wholly disregarded, the evidence in relation to subsequent events would be sufficient to sustain a conviction not only on the second count, but also of the crime charged in the first count of this indictment. It is wholly immaterial just when this conspiracy was formed. It is sufficient for the purposes of this indictment if the conspiracy was entered into immediately preceding the overt act. The evidence in this case tends to prove that Riley and Creps, two employes of the telephone company, had been sent by their superior officers, under guard of Kent and Fisher, to the private telephone exchange in the city hall to test out these lines; that they fully informed Miss Clark, who was in charge of this exchange, that they
On the other hand, the evidence offered by the government tends to prove that neither of these workmen made the statement attributed to them by Miss Clark, and which she says she communicated to the plaintiffs in error in the trouble room of the Muny Right. They each deny having made any such statement. Her friend Miss Burkett, who was
If the jury believed the evidence offered on the part of the government in reference to the conduct of these plaintiffs in error, and particularly the language used by them when they reached the telephone exchange room that evening, it would be justified in finding that such words and conduct were wholly inconsistent with the theory of the defense that these men came there merely to protect Miss Clark from being insulted by the use of profane language in her presence by the workmen Creps and Riley. The jury would also be justified by this and other evidence offered on behalf of the government in reaching the conclusion that the reason given by Miss Clark for calling these men to her assistance was not in fact a reason, but an excuse, and that back of this there was a more substantial motive, not only upon her part, but upon the part of these plaintiffs in error, who proceeded forthwith in a summary manner to put these objectionable workmen and their guards to flight.
The judgment of the district court is affirmed.
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