*1 Aug. 3, 4360. In Bank. No. 1943.] [Crim. al., Respondent, DAIL et PEOPLE, v. HARRY W.
THE Appellants.
Paul Blackwood, Frank Frank Sturgis, Desimone and Otto Appellants. Christensen for
Earl Warren, Attorney General, Eugene M. Elson Frank Richards, Deputies Attorney Fitts, General, Buron District Attorney, Barnes, and John Attor- Deputy District ney, for Respondent.
GIBSON, C. J. In an containing counts, indictment seven charged the defendants were with offenses with the connected activities of a labor union in and city about the of Los Angeles. charged
Count one conspiracy to commit assaults means likely force to produce great bodily injury and to commit extortion obtaining property persons with their con- sent wrongful induced use of force and fear. Five counts certain defendants having assaulted persons by means of *4 likely produce force great bodily to in- jury, remaining and the count defendants with the crime of extortion. and all for the State Burris became witness
Defendant charges against him were dismissed. At the commencement changed of not McKnight plea his trial, defendant charges against him guilty guilty to count one. The other De- became a witness for the State. were dismissed and he except acquitted on all counts fendants Dail and Lewis were Belanger Cope- first, charging conspiracy. Defendants and three, under acquitted except on all counts two and lan were simple assault, a misdemeanor. which were convicted Dail, remaining acquitted on all defendants were counts. Belanger judgments from Copelan appealed Lewis, denying has since a new trial. Dail died and orders appeal dismissed. must therefore be judgments are
Appellants contend the verdicts and support in the evidence and are based on without impeached. They that the also contend refusing prejudicial giving error court committed con- commenting instructions and on the evidence at the clusion of the trial. here,
During period represent- involved rival unions ing Congress the American Federation of Labor and the Organizations engaged struggle organ- Industrial in a bring ize on Coast and truck drivers the Pacific them within respective campaign membership their unions. The hotly by many opposing groups contested instances places employing a rival union business members of picketed. acting president At this time Lewis was Local (an L.) 208 of the Teamsters’ Union affiliate of the A. ofF. Angeles. union, Dail national Los was a officer assigned to advise and local unions in Southern assist Cali- strengthen part program fornia. As of a the union and membership, employed Local 208 increase its men to work “organizers” “checkers” and whose duties were collect They dues members. received and obtain new their instruc- reported from back to him. tions Lewis charges organizational in this case are related alleged of Local 208 and were based assaults activities have been Lewis and committed the defend- authorized among Belanger, ant оrganizers, checkers and whom were stated, although Copelan, McKnight and Burris. As before charges likely produce of force five of assault means great indictment, bodily injury were listed only (counts three) the com- found instances two two *5 simple by Copelan Belanger. mission of and assault The evi- relating dence to those two counts later. will discussed charge support conspiracy In which Lewis prosecution convicted the was called as witnesses the defendants Knight Mc and men, Burris and two other Williams and Johnson, designated all of as accomplices whom were a McKnight, court in its instructions. against trial whom (not charge activities) criminal union connected with was superior in the pending court, then testified that Lewis told get him his try join duties were to nonunion men to “got tough” union and if judgment. to use own He “beating “dumping” testified further he in or aided up” persons, several one occasion Lewis criti- him having fight cized for taken in a part not between an- a join other checker and truck driver who had been asked to the union. He also testified that had he seen certain other defendants, Belanger including Copelan, engaged fight- ing nonunion truck drivers and members the C.I.O.
his testimony Lewis he ever denied that advocated author- ized use of force and stated that he instructed the checkers organizers working for Local at 208 not use violence any time. only He testified that the he altercation which knowledge personal hаd Calkins-Copelan was the incident (hereafter to) only reports referred and that the he received fights connection with occasions when “the C.I.O. had attacked some of these defendants.” Other witnesses corroborated the of Lewis that he had warned mem- against of the union bers the use of violence.
McKnight, charges who was dismissed the union on from preferred by Lewis, admitted on cross-examination that he indictment, Shortly at him had been “mad McKnight since.” after the questioned, “Q. was answered follows: So you didn’t talk to . . . all Lewis ... at about of these fights at any Q. In words, your time? A. No. all of fights from particular partic- resulted some occasion at Q. ular That is right. time? A. ... out look- You weren’t ing fight? right. Q. a A. for That is You ... under go anybody up? orders out beat A. No.” It also was brought McKnight out on cross-examination that he left Angeles approximately Los at time the other defendants apprehended City were arrested. He Kansas telegram admitted that while he there had he sent a Angeles newspaper he “. . stated, Los . Would Harry story Dail would convict you be interested if others, Lewis and so what price and Dexter L. and. fugi- I reimbursed for same because will be ? Must be same McKnight justice morning at 9:30." from tomorrow tive he sending a card to Lewis which postal admitted further you sorry accept- “I going am are to be for not said, afraid charges. telephone . . You have made a rat out ing . those *6 ’’ good I union just I a rat as did a man. me. will make that prosecution for Burris testified from Lewis occasions he received orders on several had he November, 1937, “go up"; that people out and beat acquitted automobile trip made a to Delano an with they King night O’Brien; and later that that defendants spoken a meet- the automobile a man who had at followed Burris, he, car ing passed and the other they in Delano when King and its through a rock windshield. five-pound threw place. took Burris any O ’Brien denied incident ever that such by charges preferred from on was also dismissed the union shortly to union Lewis thereafter wrote letters members and feeling of and ani- a and officials which revealed bitterness mosity testimony that Burris Lewis. There towards was also “engineered the Team- stated he had the break between had Wilmington sters Union in and Local 208" and that it “was his ambition to become of Local 208. ..." head they Johnson, accomplices, Williams and testified two men received instructions from Lewis “there were had that ‘dumped’ through picket to be . . . men who went that had lines, men," they partici- and nonunion and that C.I.O.’s had working persons in altercations and struck while pated had organizers for testified that the Teamsters’ Union. Lewis by employed Local denied these men were never and gave appears they that he ever them instructions. It had done they frequently some work for other locals and were that around Local 208. prosecu- accomplices In addition consisting documentary teletype evidence
tion introduced exchanged and Dail messages memoranda between Lewis and condi- union and labor business reference messages Angeles These and in the area. Los generally tions no reference to acts violence memoranda contained purpose for in evidence introduced apparently Dail Local between and Lewis and showing relationship expense item also introduced 208. There was employees by covering one of the for filed meals members “goon squad.” appears by a It that a cheek was issued stated, covering Lewis this item. In this connection Lewis witnesses, and his corroborated expense all items were submitted to the treasurer first approval and the checks were then made out a clerk presented signature to Lewis for without accom- panying memoranda, original expense slips office vouchers were not attached to checks until were canceled and returned to the office. Copelan Belanger
The evidence were con- simple conflicting. two, victed of assault is also As to count prosecuting Calkins, evidence shows that witness member of Local had been in in his arrears dues for sev- prior eral months 29, 1937, contrary to October regulations union he had driving been a truck for company operating Complaint as a union shop. also had been made had attеmpted compel he truck patronize drivers cafe day alleged owned his wife. On the of the assault two, count Copelan, Belanger and Lewis were at the Evans Freight Angeles Lines Los employed. where Calkins was *7 talking Calkins testified that while he was to was Lewis he struck Copelan, and that in the scuffle Bel- followed anger joined Copelan in attacking prosecution him. Other witnesses testified having Copelan Belanger fight- to seen and ing or scuffling Copelan with Calkins. claimed he and Calkins argument had an being about the latter in in arrears his dues and him, that Calkins to whereupon threatened strike exchanged Belanger blows. claimed he did not enter affray until picked up dating Calkins it stamp and raised above Ms head and that he then him struck Calkins to cause let go to stamp. Other defense witnesses corroborated Copelan Belanger. and he Lewis testified had left the loading prior dock to the affray, and that when it was called Belanger to he to stop attention ordered fight. 3, that on three,
As to count the evidence shows November in prosecuting Norman Smith was seated witness loading Freight platform of the Arrowhead truck near the employed. Belanger let Lines, was asked Smith where he to he Smith said he had none because him see his union card. Belanger to truck, and invited check the his own he owned registration steering According to on wheel. certificate door of truck and hit opened the Belanger then Smith, рushed Belanger’s stomach his feet in and put him, he and alighted says Smith he was from the truck. away and him Belanger Belanger two or three men. attacked then regis- the truck door to look at opened he testified him in steering wheel Smith kicked tration card on According Belanger, to him down. and knocked stomach to him got out of truck was about strike Smith then eye. The Burris hit in the again he Smith that Copelan testified struck prosecution another witness by Belanger. hit Copelan, latter had been Smith after the taking any part affray, in the hand, denied on the other in took upstairs place. he an office when claiming fight shortly after Smith testified Several witnesses arrested, claiming Belanger the latter had attempted to have having no eye,” made statement about him in the but “hit Copelan anyone else. been struck relating all shown, As has been been first conflicting. The evidence as to the count is three counts accomplices largely upon the who based bound, however, reviewing court impeached. light respon- in the most favorable the evidence view dent, applying principle well established the record this case, the evidence sufficient we must hold that this true, however, It also a close support verdict. conflicting, sharply evidence is substantial and ease where the serious errors to defendant that resulted vital regarded justice prejudicial miscarriage must be grounds (People Silver, 16 Cal.2d reversal. P.2d aрpellants’
We turn now to a consideration of the prejudicial that the error contentions trial committed commenting giving instructions and the evidence. claimed be erroneous are as of the instructions Some follows: place by persons picket a
(1) agreement . an. large picketing pickets numbers to use business and *8 intimidating threatening employers or of purpose business, . . . constitutes unlaw- employees place in such of or boycott on by of a carried same is true picketing, and the ful means”; such by or on be- persuasion includes (2) intimidation “. . . resulting of in coercion persons of half of combination a numbers”; by force of mere will
651 (3) simple . . a request “. even or to do not to a thing do by one or more of a body persons made of under circum- convey threatening intimidation, stances calculated a design workmen, hinder or obstruct is unlawful intimida- tion, is not less and obnoxious than the use of physical force for the purpose”; same any
(4) having "... action element of intimi- coercion, or physical dation or abuse, verbal, or of invasion or of rights privacy, when not performed under sanctions of lawfully empowered law or those law, to enforce the is un- lawful; ...”
(5) every “. . . act speech, gesture, or of conduct any which may reasonably judge fairminded man in- to be convey insult, threat, annoyance tended to or another, . upon him, work . abuse unlawful, group . and by men pursuing agreement such unlawful when conduct engaged in pursuing of an act lawful in itself fall within a conspiracy by performing definition of lawful act an unlawful manner.” instructions erroneously
These
advised
that all
by
concerted activities
illegal.
combinations of workmen are
The rule stated therein
plainly
contrary
erroneous
Registered
that announced
this court in
Pharma-
v.
Shafer
Union, 16
403],
McKay
cists
Cal.2d 379
v.
P.2d
[106
Retail
1067,
Automobile Salesmen’s
Union No.
16
Local
Cal.2d
311
right
picket
P.2d
peacefully
[106
373].
truthfully
guaranteed by
as an
Constitution
incident
speech. (Carlson
310
freedom
106
California,
v.
U.S.
[60
84
746,
L.Ed. 1104];
Alabama,
S.Ct.
Thornhill
U.S.
736,
1093];
Swing,
L.Ed.
F.
L.
S.Ct.
A.
[60
321,
U.S.
855];
85 L.Ed.
Hotel
Em-
S.Ct.
etc.
ployees’ Local Wisconsin
Board,
Rel.
It erroneously the jury on menting on the evidence instructed (1) that accom- as follows: that the fact of law matters of guilty to McKnight pleaded one count plice witness (2) testimony; that the not discredit should indictment judged accomplice credibility of the witnesses was to be of com- as that other witnesses. After same standard accomplice Mc- testimony witnesses menting upon as follows: Burris, jury the court instructed the Knight and gentlemen, credi- connection, in this ladies “And judged by you by to be bility all of these witnesses is of any The fact that of other witness. standard that same McKnight plea guilty has entered a one the witness charges against that of the indictment or all the witness count on motion Burris been dismissed the Court Attorney, standing alone, not discredit these District should testimony, unless, thereto, or addition there witnesses their something testimony testify- their or their manner of about or or case, prejudice their in the their bias ing or interest against or all of the defendants casts sus- one your opinion minds. In picion upon it the Court’s McKnight given witnesses and Burris was dispassionate manner; in a their well calm and answers were considered, on the their and in face of their stand, there was no demeanor the witness animosity.” jury clearly
It was error the court to instruct the McKnight a plea fact the witness had entered (a guilty should felony) to one count of the indictment testimony. A impeached not discredit his witness be by showing (Code prior felony conviction of Proc. Civ. 2051). equiva- impeachment purposes, plea guilty For (People proof Jacobs, Cal.App. conviction. lent ; 142.) trial court in Cal.Jur. 770] McKnight’s the advised that as a matter of law effect plea of guilty, which was presence jury, entered regarded not to be tending impeach him, this was an incorrect statement of the law.
A further claim of error the court instructed credibility witnesses is to judged by the same standard as that This witnesses. instruction opposition statutory provision direct to the *10 testimony accomplice the of an should be viewed with (Code 2061, distrust. 4.) giving Civ. Proc. see. subd. of a formal statutory instruction which stated the did rule error, not cure the but instead created a conflict, serious normally misleading jury. would have the effect of the It strongest must be remembered the witnesses for the prosecution accomplices, testimony were the and without their the hardly possible. being conviction could have been This so, it jury correctly was of the importance utmost that the be by advised as to the testimony standards which such towas weighed. be Instead, by the and was misdirected a clear specific statement which in effect the previous nullified formal instruction, and no attempt was madе to relate the two or explain inconsistency. the inevitably The result must been a jurors’' confusion in the minds on matter vital judgment. frequently Inconsistent instructions have been held to constitute impossible reversible error where it tell which conflicting by jury. rules was followed (See example: for Wells Lloyd, v. 21 452, Cal.2d 457 [132 471]; P.2d Jolley 55, v. 28 Clemens, Cal.App.2d 73 P.2d [82 51]; v. Marriott, Cal.App. 635, ; Soda 118 643 P.2d [5 675] 8 633.) Cal.Jur. emphasized
The error was further here reason of given the fact that the erroneous instruction testimony connection with its comments made on the accomplices. an person accomplice fact that a goes credibility the commission of a crime to his as witness weight testimony. In discussing and to of his the effect weight testimony and of such state and federal courts have questionable occasions emphasized numerous its character. (People Coffey, 161 433 901, v. Cal. P. 39 L.R.A.N.S. [119 704]; People Braun, Cal.App.2d 31 593, ; 603 P.2d [88 728] People Ross, 385, 46 Arnold Cal.App.2d 81]; 397 P.2d [116 (C.C.A. 499; 94 10th), Craig V. United States F.2d v. United (C.C.A. 9th), F.2d.816, 827; 81 States United Shields v. 66, In (C.C.A. 3rd), 68.) States 17 F.2d v. United Crawford 654 465], 183, 260, 53 L.Ed. 204
States, U.S. S.Ct. of the United States said with reference Supreme Court an witness “the evidence ought suspicion, received with of such a witness to be ought not to very greatest caution, with the care governing jury under the same rules passed upon In 20 Am.Jur. apparently other and credible witnesses.” accomplices it is “The facts that the said: satisfactory most character and that is at is not of the recognized by infirmities are with serious matters tended are too understood call decisions and obvious and well go credibility exposition. Such considerations testimony be evidence, requires that such law Indeed, it has closely accepted with caution. scrutinized long custom, England both the United been States, only court not caution the to the for the danger acting upon unsupported testimony an ac complice, them not but advise to convict the absence People corroborating of some Coffey, evidence.” at Cal. L.R.A.N.S. the court 704] recognized said that at common law it was that “evidence coming accomplice, source, from a tainted an the witness being, first, man, from infamous his own confession and, guilt, second, usually testifying hope a man *11 expectation immunity, favor or the was not entitled to the man, same consideration as the evidence of a clean from free infamy. Hence, practice it soon became the of the common judges, law in the wide latitude them in in allowed to the juries, struction of their to advise the latter that the testi mony of an accomplice, indicated, for the reasons was to be care, (see viewed with caution, suspicion Proc., Code Civ. 2061), sec. accomplice that the them as stood before witness entitled credit, way to little and that the surest of establish ing eyes his in their credit for them was to note whether testimony any corroborated material matter inde pendent evidence, if it so that corrоborated might put faith in accomplice all that the had ...” Sec said tion 2061, 4, was, subdivision form, part in its present Code of 1872, Civil Procedure when and it it was enacted was apparently attempt codify to the common law. that support the contention the court prosecution
The credibility accomplice the wit- correctly here stated that that of same standard as judged nesses was to be 655 142, Dana, upon witness relies v. 193 Cal. Hirshfeld It 4 of 451], 160 was there held subdivision P. [223 Procedure, authorizing 2061 section of the Code Civil of an jury trial court to instruct “the ought be distrust accomplice to viewed with ...” is unconsti- tutional, charges jury fact, on because it matters of con- trary article provisions VI, 19, to the section of the state (as read). People North- (See, also, Constitution then v. it cott, 639, 634, 806].) 209 70 A.L.R. Cal. 653 P. Several [289 prior decisions of this court case rendered Hirshfeld question indicate that not then accord 4 whether subdivision of section 2061 was unconstitutional. (See People People v. Ruiz, 907]; v. 144 251 Cal. P. [77 48, 63 Moran, 777]; People Buckley, 143 Cal. P. [77 169]; People P. see, also, Silva, Cal. 121 Cal. expressed Beatty minority Chief Justice People Ruiz, page 255, view supra;at follows: “The legislature has the power undoubted to declare what shall not competent power be In the evidence. exercise of this might have absolutely excluded of an accomplice the evidence or the evidence of verbal party. Having admissions of a рower altogether, to exclude subject it has the to admit power conditions qualifications; merely and clause states qualification subject to which of testimony this kind admissible—the condition which it is go allowed at all.” requirement of section 1111 of the Penal Code accomplice be must corroborated is a convinc- ing indication of legislative intent policy that such regarded evidence is be untrustworthy and not believed unless fortified tending other evidence to connect a defendant with charged. the commission of the offense power Legislature provide questioned so to not may if it stigmatize thus accomplice completely testimony and deny it credence unless corroborated, no valid reason exists why Legislature declare, as it has done subdi- vision of section to be instructed view such testimony with distrust. The difference *12 merely is degree. one of require To such an instruction on proper jury upon occasions is not charge the to matters merely fact. It legislative serves upon to state condition the which the is permitted hear class of to evidence. The analogous somewhat People Lucas, situation 16 Cal. 656 102], presented question 178,182 P.2d whether the
2d
[105
cautionary
to a
instruction in
entitled
a sex case
defendant was
charge
easily
to
that “such a
made and
the effect
difficult
to
prosecuting
reason
disprove for which
This
there
examined with caution.”
court
witness should be
to
that it contains
objection
instruction,
such an
said, “the
...
law,’
appear to
fact,
spent
not of
would
‘statements
to
amendment
section
in view of
recent
of its force
much
authorizing
a trial court
article VI of the Constitution
People
Stangler,
(See, also,
on the facts. ...”
comment
People Roberts, 50
321];
P.2d
Cal.
Cal.2d
[117
type
in a case of that
558, 569
P.2d
If
App.2d
analogy
cautionary instruction, by
is entitled
defendant
involving
in a
cautionary instruction
case
he is entitled to a
here,
as
accomplice, particularly when,
given.
that such an instruction be
statute directs
suggested
has been
amendment
It
to in the
article VI of the Constitution referred
section
2061, subdivision
cannot validate or revive section
Lucas case
not, how
if were void when enacted. This does
supra,
it
required
problem
us. We
ever,
before
are
state
for lack
previously declared unconstitutional
revive a statute
authority.
question
real
The
whether
of constitutional
void,
held in the Hirshfeld case.
our
statute
fact
opinion
case
a mis
the Hirshfeld
was based
considered
purported
the extent that it
to make im
conception, and to
ordinary cautionary
on
evi
instructions
doubtful
proper void,
overruled. The statute was never
dence must be
under
view,
subject
and needs no “revival.”
present
our
problems
rule of procedure—involves
statute—a
no
occasionally
arise when
decision
retroactive effeсt
overruled,
unconstitutionality
(See e.g.,
declaring
Rott
(1937)
37;
(1939)
Law
37 Columb.
schaefer on Constitutional
1017.)
present
decision is
Rev.
result of our
that such
L.
necessary in a
and the
proper
are
case
failure
instructions
People v.
(See, also,
instruct
error.
so to
be reversible
711, 716].)
Weitzman,
For these it was error for the court jury, contrary guise of comment to under the instruct credibility that the “is statute, witnesses standard that of judged ... the same other wit- ’’ given on law An erroneous instruction ness. “commenting” jury by trial while the evidence *13 grounds as included subject challenge to on the same when Costello, People in formal instructions. among the As said an erroneous instruction 164], P.2d Cal.2d on the justifiable be deemed comment upon the law cannot credibility and evidence of witness. credi- concerning in the instructions the
The errors com- accentuated the bility accomplice witnesses testimony of accom- concerning the judge of the trial ments in jury the that told McKnight Burris. The court and plices dispas- “in a calm given was opinion their its considered”; “well manner”; their answers were sionate testimony and in their de- their “on the face of and that no stand, there was evidence witness meanor the animosity.” made reference the facts The court no charges by Lewis both these witnesses preferred after McKnight union, that under from the stated were dismissed since,” that there he “mad at him oath that had been contain- in a letter written Burris presented was inflammatory accusations embittered ing statements against By Lewis. the court drew the such one-sided comment animosity to an lack attention the asserted toward testifying, accomplices the defendants observable while undisputed mentioning the ani- without evidence that such mosity in commenting upon did exist. The also accomplice McKnight, conflicting statements made McKnight to the that “. . . the witness admits stated entirely story . ... he he told an different statement gave shortly story after the indictment returned than the you he told from the witness stand. . . . One circumstance you are to take into consideration he entitled fact that (first) of his testified at the time statement ... he was had preparing charges, a defense and he no intention guilty charges, subsequently as he pleading credibility This on did.” have served east doubt McKnight’s statements defendants previous favorable veracity statements invest with unfavorable made while testifying. slight, any, if The trial court made comment evidence, the defense but indicated statutory spite to full was entitled credence distrust, requirement despite be viewed that it thoroughly impeached. that it a trial fact While necessarily required on all of the evi- to comment court is “temperately dence, its comment should be nevertheless fairly Trial made. . . . courts should cautious the exer- power cise of this with a view to protecting the [of comment] rights (People of defendants.” Moss, v. De 469, 477 Cal.2d P.2d present case, however, quoted standing comments alone require reversal, would not but when considered connection accompanying with the errone- ous instructions credibility relative of accomplice wit- nesses serve emphasize to accentuate and error those instructions. *14 jury also stated to the that ‘‘The trial court (an acquitted defendant) Lewis Pitts have
defendants you from the their activities admitted to witness stand organization consequent affairs of and their control of the necessary you It for responsibility therefor. is therefore not admitted, responsibility, since it stands to determine any you find that the acts activities of of the other should or offenses, you criminal defendants constituted or amounted to finding warranted the defendants Lewis and Pitts would be or equally guilty of such offense offenses.” Lewis admitted by only that virtue he had control of position organization responsible affairs of the that he was but not any stated, for unauthorized conduct of its members. As before Lewis testified that he had never the use of advocated vio- against lence and had admonished the men its use and his regard by in this was corroborated others. The admission organization responsibility of control of the not, course, for its affairs does constitute an admission a conspiracy existed or that violence was It advocated. was therefore an incorrect statement of fact the court to jury tell the had ‘‘responsibility Lewis admitted therе- ” Furthermore, for. part quoted the latter of the state- ment amounted to an erroneous jury instruction on guilty the law to find Lewis if it found any of the other de- guilty on any charges fendants the several contained indictment. improper Under this jury instruction the guilty could find any told it Lewis on charges the several though even it should fail find conspiracy the existence of a between him and of the other defendants to commit assaults. Such erroneous instruction deprive served to Lewis right jury to have the consider his individual criminal responsibility. court, guise The trial comment, under the may properly control the verdicts a direction either directly or impliedly (People made. Moss, v. De supra, p. ; 477 People Ottey, 714, People v. 5 193].) Cal.2d 729 P.2d [56
659 Eudy, 41, 359], prosecu- Cal.2d P.2d cited that a trial as express opinion tion to the effect its guilt qualification or innocence of a defendant. The added, however, “provided province there of the facts, incorrectly not invaded.” The court here stated the erroneously improperly declared the law and invaded the jury. province the court misdirected the appears
It thus importance to the defendants. matters of We have here- vital conflict, the evidence is in substantial pointed tofore out that any serious error could under these and that circumstances The record this case prejudicial have a effect. consists of 6,545 Much of the approximately pages. еvidence is imma- since it relates to appeal terial on this three of the counts charging likely means force produce great assaults bodily injury acquitted. Although which defendants we made careful examination of the entire cause we opinion only forth in so much of have set this the evidence necessary appears support to show that was sufficient to judgment, considering was in substantial conflict. but VI, the effect of article “We Constitution, section 4 ½ jury. are not substituted for determine, We are not inno- original inquiry, question guilt of defendant’s (People O’Bryan, 1042]; cence.” Cal. P. see, also, People Roe, As 189 Cal. *15 [209 208 Tupman Haberkern, stated 263 P. Cal. [280 970], present “Whether the error to be found ‘has resulted miscarriage justice’ presents question in a of of on the law court, of purpose record before the and the the section [4 ½] require was to the court to declare as matter of law whether rights party the error has affected substantial of the com- plaining against it, determining of purpose and not for the evidentiary testimony prepon- value of the or where the derance of the evidence lies.” inescapable
The conclusion is errors this case miscarriage justice meaning resulted in a within the of VI, article section of the California Constitution. 4 ½ proceedings permanently All in this cause have by abated to Bail and pending appeal as reason of his death superior directed enter its order to that effect. to (People 202 Maurice, 952]; v. de St. 166. Cal. P. [135 Alexander, People Cal.App. 394, 396 P. denying judgments are, and orders new trials and each appellants Lewis, Copelan Belanger. and as
is, reversed J., Carter, Traynor, J., Schauer, J., concurred. Dissenting. Concurring It isconceded J., EDMONDS, the evidence before of this court by all members against guilty support a verdict sufficient to record, I But, read the as appealing four defendants. differs supporting the convictions of the evidence character guilty conspiracy, found Lewis, Dail and who were as to guilty Belanger, were found who Copelan as to assault. former were convicted The evidence veracity, be- testimony accomplices, whose
primarily to serious impeach them, open tending evidence cause of testimony of these that, without the question. I am satisfied sup- discloses insufficient accomplices, the record circum- Dail. Under these port convictions Lewis weight regarding the instruction stances, the correctness of the of deci- testimony question given accomplice becomes be materiality. sive credibility of jury that the trial court instructed standard as judged by the same accomplice is to be agree the conclusion Chief I
of other witnesses. with contrary squarely to subdi- this instruction is Justice that Procedure re- 2061 of the Civil of section Code vision occasions, instruct proper all court, on quiring the accomplice ought be of an “the I as a codifica- also read the statute viewed with distrust.” reasoning disagree rule, tion the common-law 451], holding Dana, Cal. Hirshfeld But if the Hirshfeld case even subdivision unconstitutional. justification for a controlling, affords direction no credibility law, a matter of that the jury, the court to the judged the same standards of an The instruction was therefore that of other witness. prejudicially erroneous. conspiracy count is category, so far as the
In the same I that the concerned, place the instruction guilty *16 McKnight plea discredited his accomplice commis- charging him with the count in the indictment to a may not be denied that felony. addition, it sion of a by disproportionate aggravated effect of these errors given by commenting upon judge, attention the trial credibility of the strengthening evidence, factors compared disregard of the im- accomplices as his total testimony. I also peaching accompanying circumstances their a fact not agree unjustifiably the trial assumed by supported telling jury that the de- testimony responsibility fendant Lewis had admitted in his . for the criminal acts other defendants Copelan Belanger were and upon which But the evidence totally character. simple different assault convicted of may not acts actually complained committed That upon questioned. the evidence seriously Unlike be than ac- guilty, witnesses other jury Lewis and Bail found having seen acts committed testified violence complices Belanger and three counts two by Copelan opinion And, indictment. as indicated other, although Justice, of the evidence related Chief much alleged jury obviously not be- these, acts, the did as well as acquitted most it all defendants lieve jury so charging counts an assault. After the other three carefully disbelieved, from what it what selected believed amply supported by the direct and when its determination accomplices, than the erroneous of witnesses other did instructions as to the comment miscarriage far not, my opinion, justice result in so instructions, concerned. as these two defendants are erroneously which, effect, in cumulative advised the illegal, activities combinations of workers are all concerted Copelan finding no means misled the could Belanger guilty, for the error consisted their con- charges peaceful picketing. The nature of the demnation of obviously these two convicted unconnected upon which incompatible picketing. with lawful judgments reasons I For these am convinced denying should be as to the orders trials reversed Lewis new that, against him for a trial, case remanded new but and the Belanger, judgment and order should Copelan as to affirmed. group J. A eleven defendants CURTIS, I dissent. conspiracy in count one of indictment with were accused Upon pеrsons by means of force assaults commit *17 likely great bodily to produce injury to property and obtain persons, consent, by wrong- from their with induced ful use of force and In fear. five other counts the defendants assaulting were persons by certain named means likely produce of force great bodily injury. The remain- ing count them accused crime of extortion. Harry defendants Dail and Dexter Lewis con- were
victed on count acquitted one and on all other counts. These two defendants were sentenced penitentiary to the state for term prescribed by law, suspended but sentences were probation granted and period years. for a of ten As a condi- tion probation eighteen county months of service in the jail imposed. was Belanger Dewey The defendants David and Copelan were convicted on counts two and of simple three assault, a misdemeanor, a lesser but included and offense, acquitted on all They other counts. were sentenced county jail for term of six counts, months on both sentences to run consecutively, and probation was denied. The indict- ment was dismissed as to defendant Walter Hart Burris. De fendant Paul McKnight pleaded guilty to count one and remaining counts two, were him, except dismissed as to count disposition of which appear does not in the record. The remaining five acquitted defendants all counts. Defendants Dai l, Belanger Lewis, Copelan all appealed from the denying orders new from judgments. trials and As stated in majority opinion, taking Bail his died after appeal. remaining appealing defendants will be here- after referred to as appellants.
Bail an international representative was of the Interna- Union, tional Teamsters an affiliate of the American Federa- tion of Labor. In he general was ordered to make a survey operations covering various road truck May, 1936, In permanently State of California. he was as- signed Angeles organize, to the Los area. His duties were to negotiate organization, wage assist scales where such requested the local services were unions. When Dail came Angeles, Los Local Union 208 was under international re- provided for ceivership, situation the International A appointed Brotherhood constitution. receiver at general the international time when the executive body determines that the local council of officers are not acting membership. in the best interests of the ap- When pointed, complete a receiver has control of the local. his At for request appointed was receiver al- own Bail Local though by admission there no his own section in con- requesting stitution reason for receivership. which covered his Appellant organizer Lewis became Local 208 in No- vember, organizer duty 1936. such As contact try per- truck who wеre not union members drivers join July, suade them to the union. Lewis was made acting president of Local 208 was later elected to that Appellants Belanger Copelan organizers office. checkers for Local 208. such their try As duties were to get members, new to cheek members to determine whether their paid, dues were and to collect dues. Defendant Schultz *18 secretary-treasurer defendants, of Local The 208. other including McKnight Burris, organizers, checkers agents. and business assignments error, make numerous the appellants
The is to the being support first that the evidence insufficient lengthy running the briefs into verdict. In thousands view arguments thereof to on pages, hundreds devoted the many evidence, stated, the here as it has been it should be trial before, appellants times that are not on before this the fact-finding body They already tried a court. been During extending period a of three months. a trial over prosecution, that 50 testified for the over trial over witnesses documentary defense, a testified and much hundred for introduced. It was inevitable there would evidence was a It is great conflicting be deal of evidence. well settled that against appellant. appeal all conflicts must be resolved at overlooked principle This has times been fundamental the briefs before us this case. Appellant there no Lewis contends evidence general conspiracy any showing par- nor is therе any alleged ticipation conspiracy to commit assaults bodily persons by likely produce great other means of force to their injury property persons, or to obtain from other with consent, wrongful of force and fear. The induced use conspiracy, question criminal like existence of a determine. After review fact, is careful jury might I opinion am of the reason- record ably presented Dail and have inferred from the evidence conspire alleged. acts Lewis did commit the con It is contended that there no direct evidence of a spiracy However, participation or therein Dail Lewis.
664 no evidence to a conspiracy, need be direct establish there design conspiracy may from common deduced attend viz., done, ing circumstances, nature of acts rela parties alleged conspirators. tion and the interest of (Johnstone 210 Morris, 970]; v. Cal. 580 P. Beeman v. [292 Richardson, 774]; 185 280 Hesse, P. Revert 184 Cal. v. [196 People 943]; Donnolly, Cal. 295 P. v. 143 394 Cal. [193 [77 King, People Cal.App.2d 928]; P. 30 177]; v. 185 P.2d [85 Yant, Cal.App.2d ; People People 26 725 v. P.2d [80 506] People Fitzgerald, 14 Cal.App.2d 718]; 180 P.2d v. Col [58 lier, 898]; People Schmidt, 33 Cal.App. P. [295 555]; People Cal.App. Seefeldt, Ill. 829]; Evidence, 771.) sec. N.E. Underhill’s Criminal organize purpose Dail Lewis was to avowed duty It trucking industry in Southern California. was their join persuade non-union truck drivers union and persuade employers shop to enter closed into contracts with legal things, A to do these within union. combinаtion if limits, conspiracy. not of course be a criminal would But they conspired on non-union truckers to to commit assaults assaults for non- force them into or to commit the union payment dues, criminal con- then such action would be a nothing It add spiracy in the indictment. would specifically numerous opinion to refer acts this replete physical actual alterca- assault. record drivers, organizers tions non-union delin- between union *19 quent members, unions, members of other and drivers who personal injury and their own trucks. Threats of owned property throughout and destruction of run threats to actual A these physical the entire record. denial of occurrence of evidentiary argument contrary to merely is encounters if jury. any The claim that or- implied findings of only in ganizers persons, kicked done struck or other evidence, jury argument is and the self-defense also an on the justified concluding in Whether the incidents otherwise. a independent integral part all an and were isolated jury de- general question a of fact for the conspiracy was (People Kauffman, termine. Cal. charge in of the
Appellant that he was Lewis admitted course, de- organizers Local 208. he activities for Of any his gave organizers he orders to to com- nied that ever members, delinquent mit assaults on non-union members or ample contrary. but there evidence to All of is the ac- complice given. testified that such witnesses orders were Attorneys’ paid by fees were authorized be Lewis for those who had arrested for participation been assaults. Doctor hospital Lewis’ paid bills were authorization for those injured engaged physical who had been while altercations. signed payment expenses, Lewis checks in for including squad, for for goon vouchers “Meals cents” and “Meals for trust, McCue, A time general $1.13.” beef Mr. at the foreman Freight Lines, Southern California testified job my Lewis him that “he had gotten told [Lewis] through, that I was up place and I couldn’t show around the anymore, he goon squad otherwise would a send cause me some trouble.” From the referred to evidence other presented, reasonably evidence could only knowledge concluded that Lewis had not of the activities organizers, actually but that he ordered assaults majority opinion be As committed. conceded that the support verdict, is sufficient to review further necessary, major although evidence will not be parts appellants’ lengthy briefs are devoted the discus- sion and in the evidence an attack the verdict of the support. lacking evidentiary Appellants rely on 1110 of the Code in at- section Labor tacking by regard given certain instructions the trial court to strikes, picketing, boycotts. urged by appellants It is provisions no because of section act constitute a if sec- crime done the interests labor. This agreement persons tion or more declares that no between two dispute to do or do an act of a trade not to in furtherance same employers employees criminal, between if the act person punishable as a crime. committed one would merely apparently proposition appellants novel disputes, because their labor were connected with activities entirely free for criminal acts. prosecution are from proposition appellant Such Lewis was untenable. conspiracy neither with nor do convicted of dispute. act in furtherance labor He was convicted Assaults and conspiracy to commit and extortion. assaults just committed those extortions much crimes when are engaged any activities committed labor as when *20 recognition in the persons. great has been a advance There 666 a rights of labor since the time when mere
of the
combination
higher wages
employees
procure
and shorter
hours
conspiracy,
statutory
a criminal
but neither
law
considered
completely
from prosecu-
nor court decision
absolves a man
simply
allegedly engaged
tion
criminal act
he is
for a
because
in
this
Su-
labor activities. Both
the United States
recently
warning
preme
physi-
reiterated
Court
violence,
in
physical
cal
of violence and
intimidation
threats
(See
Metro-
disputes will not be tolerated.
C.
Smith
labor
S.
politan
Lyons,
;
Mаrket
v.
Co.
Cal.2d
P.2d 414]
[106
No.
McKay
Retail Automobile
Local Union
v.
Salesmen’s
Wagon
1067,
; Milk
Drivers
Appellants next attack the follow
“You
instruction:
are
responsible for
wrong
instructed that one is
what
flows di-
rectly
corrupt
from
he
his
intentions.
If
set in
motion
physical power
another,
he is
for
liable
its result.
If he
contemplated
result,
though
pro-
he is answerable
it duced in
contemplate.
a manner he did not
If he awoke into
power,
action an
he
responsible.
gave
indiscriminate
If he
vaguely
uncautiously
person
receiv-
directions
might
according
he
acted
to what
have foreseen
ing them
understanding,
responsible.”
he is
Inasmuch
would be the
Belanger
Copelan
participants
actual
in the
convicted, the instruction ob-
assaults of which
application
People
viously
to them.
ease
was without
650],
Munn,
opposition
particular attack, instruction under when considered aas whole, proper applicable is a recitation law to the ne- cessity of corroboration. It in conflict with section 1111 is not of the Penal Code, all sup- of the statements made are ported People Todd, the case of Cal.App.2d 237 [49 P.2d authorities cited therein. 611]
Many other appellants. instructions are attacked *23 fact, by few other appellants than those offered escape attack. Appellants complain give also of the court’s refusal to cer- tain requested by Nothing instructions gained them. can be by treating remaining specifications each of the sep- of error arately. I am that prejudicial convinced no error has been by committed giving give refusal the instruc- tions by referred appellants. every in group As of instruc- tions, may some error possibly practical exist but admin- justice istration of by not a rigid should be defeated too ad- herence to a analysis close and technical of the instructions jury. to the (People Schmah, Cal.App. 62 192 [216 instructions, the formal the trial exer In court addition VI, it privilege given under article section cised the state, to comment on the of this Constitution 670 credibility Appellants of witnesses. attack the whole of up
the comment and claim it
made
was
statements of erro
judicial
not
comment,
neous rules
law
was
but had
argument
prosecution.
effect of
The scoрe of
trial'
thereon,
court comment
the limitations
under the
provision,
fully
above-cited constitutional
have been
dis
People
cussed
the recent
v. Patubo,
cases
Appellants assert the trial court’s comment on the credibility of the accomplice Mc- witnesses Knight and Burris constituted an erroneous statement of law.
The particular paragraph of comment attacked reads as fol- lows: “And in connection, this gentlemen, ladies and credibility of all of these judged witnesses is to by you by the any same standard as that of other witness. The fact McKnight the witness plea has entered a guilty one count of the indictment or that charges against all witness Burris have been dismissed the court on motion discredit, attorney, district standing alone, should not these testimony, witnesses or unless, their thereto, addition there is something about their testimony or their manner of testifying or their case, interest or their preju- bias or against dice any one or or all of the defendants which casts ’’ suspicion upon your it in minds. Considering this comment
in connection with the formal given, instructions the evidence trial, adduced at the the code governing sections accom- plice testimony generally, witnesses I am opinion that no error of law was committed. In its formal instructions the fully court had advised necessity as to the of corroborative pointing guilt independent of the testimony of accomplices. By these instructions requirement of section 1111 of the Penal Code was met and the evidence shows that there was sufficient corroborative evidence. There being sufficient cor- roboration, then for the to determine the credi- bility of the accomplice witnesses and the same standard to be applied any used as would be other witness. The pre- sumption speaks that a truth, witness provided for in section 1847 Code of Procedure, Civil applicable to an witness as to other. In the case of *25 presumption might of more
accomplice
course be
witness this
standing
that
easily
position,
of
fact
repelled because
but
law,
testimony
the
a matter of
alone should
discredit
as
statutory require-
There
no
urged
appellants.
valid
it
the
jury
ment that the court instruct
the
should view
4 of
of an
with
Subdivision
distrust.
provides,
section 2061
of
Procedure "so
of the Code Civil
but
of
in the ease
declared unconstitutional
subdivision was
451],
Dana, 193 Cal.
P.
It is true
[233
Hirshfeld
held
might
the reenactment of
be
valid since
that subdivision
VI,
the 1934 amendment
the Con-
to section
of article
state,
the
permitting
stitution. of this
court to comment
credibility
witnesses,
and the
but
amend-
facts
such
ment cannot validate
section
en-
which was void when
(See
Smith,
;
acted.
Banaz
New-
Cal.
309]
berry
States,
v. United
“The defendants Lewis and Pitts have admitted management from the their witness stand activities organization control of consequent the affairs of the and their responsibility necessary you therefor. It is therefore not responsibility, admitted, determine that it since stands you and should find that the acts or activities of of- defendants or amounted criminal constituted you fenses, finding would be defendants warranted ’’ equally guilty Lewis and Pitts offense or of such offenses. Appellants argue quoted that the above comment amounted against agree to a directed vеrdict them. I cannot with this By contention. this comment the doing court was no more than exercising right its to comment on the evidence. As to Pitts, Lewis and told that it would be warranted in finding guilty them charged. of the acts Both before after this comment the court was point careful to out that all ultimately issues of fact be were to determined jury. acquitted The fact that Pitts charges of all evi- dence that the did not consider this comment as di- considered, had so Lewis would If it been rected verdict. along Belanger assault
have been convicted Copelan. portions majority specifies numerous other opinion necessary I error, give do not deem
the comment as but What was them detailed consideration. said conclusion People Ottey, equally supra, applicable here. case “Although page It at 730: court’s com- was there stated might lack care in prep- ments be said to show some thereof, viewing aration nevertheless the comments as a whole light rationally the inferences therefrom, escape drawn we cannot the conclusion that the jury did judges function as the so sole and exclusive facts, weight testimony, to be accorded the the credi- *26 bility witnesses, of the and that the verdict returned them was exclusively. [Citing authority.] their verdict In such subject case further of discussion the matter the views of the jurisdictions in courts applied special as classes of indulged the comments under law and thе facts ’’ there involved, would serve no useful purpose.
There remain to be appellants’ considered spe- numerous cifications of error of rulings the trial court’s on the evi- It urged dence. is first that the court erred in permitting, appellants’ over objections, the proceedings the ac- which complice and McKnight co-indictee changed plea not guilty to guilty one, one on count be in pres- conducted the ence jury. The was that plea guilty the instructed against was not evidence defendants, the other they specifically disregard entirely. instructed to it The authorities by appellants cited to the effect that prior confessions or pleas guilty in subsequent alleged co-conspirators trials of or accomplices inadmissible, are therefore applicable. are only The question is alleged as to the misconduct of the trial in permitting court the plea to be made in presence the jury. the McKnight one was of the eleven defendants being and all were together. tried A day or two after the trial way was appellants’ attorney pointed under out that McKnight going plead was guilty and asked that be withdrawn. answer request to this the trial prop- erly pointed out that it would useless act because at some throughout time the trial the fact that McKnight had pleaded guilty inevitably would be disclosed to the jury. The simply proper exercise of request was denial ruling A trial. conducting the similar discretion
court’s States, Grunberg v. case of United in the review under plea guilty In that case C.C.A. 145 P. 51]. presence jury panel in the was taken one defendant reviewing objection of the other defendants. over can, however, hardly regard 86: page “We stated at court- impossible escape it belief prejudicial, because this pleaded come out that Burman had would that fact and, also, mat- trial, that become a would the course of knowledge courtroom, about which of common ter inevitably . true by. . . be affected panel entire would inci- ordinary this was one of whole is that answer to the court, which is within discretion of a trial dents (See, also, cannot review.” Commonwealth we Biddle, A. 200 Pa. the court erred in receiv- appellants
It is contended hearsay, People’s ing objection over Exhibits 100, consisting by the of letters written accom- Burris, prejudicial error be- plice such witness against of remarks Lewis cause letters consisted made ‘‘derogatory liberally sprinkled in nature with epithets vituperation.” exhibits were introduced These by in- attempted impeachment after redirect examination testify- ference on cross-examination that Burris’ motive ing curry as he did on direct examination was favor with prosecution, and that such on direct examina- tion exhibits was fabricated this motive mind. These impeachment tended to rebut the inferred *27 to his visits prior that Burris of the mind showed same аttorney’s When to the district office. a witness is testifying prompting under the influence of motive with some statement, may him made to make a false be shown that he not imputed similar at a time when motive did statements 15 (People Kynette, 731, 794]; exist. v. 753 P.2d Cal.2d [104 413, 307]; 1 Barkly Copeland, v. 74 15 Am.St.Rep. Cal. P. [5 88 Dal- Tanner, Cal.App. ; v. 67 P. Clark v. Davis [262 1106] ziel, Cal.App. 429].) ap- 3 121 P. On cross-examination [84 Z, their Exhibit pellants had introduced which referred then People’s The latter could be introduced Exhibit 97. subject permitted by on of the whole the same balance regard 1854 of Code Civil Procedure. section
675 they 31 and was instructed that Exhibits were proof not to stated therein, be taken as matters but only considering purpose for the whether Burris fabri- in getting evidence touch district after with the attor- cated ney’s receipt that the in assuming office. Even erroneous, appellants the exhibits was have no reason to com- although they plain did contain “deroga- because statements liberally tory sprinkled epithets in nature and and vitu- ’’ practically identical peration, statements were contained by appellants Z prior Exhibit introduced to the introduc- questioned tion exhibits.
Appellants next assert that error was committed in re- stricting of the accomplice the cross-examination witness Mc- Knight permitting cross-examination of defense beyond scope of direct witnesses examination. To consider point each raised under these assertions would be to extеnd unnecessarily beyond lengths. this dissent all reasonable I necessity affording am well aware of the the defendants’ scope counsel the fullest of cross-examination of an accom- (See People Pantages, v. plice witness Cal. P. [297 ; People Williams, 187; People Cal. Schmitz, 890] Cal.App. 330 15 L.R.A.N.S. I 717]), but am equally necessity aware of the of permitting a liberal discre- part tion on the trial in conducting court trial generally in controlling examination witnesses. pointed dissent,
As out earlier this the defendants are not appellate not, on trial before court. An this should cannot, re-try a practical. every matter appeal. case Many specifications by appellants of error made regard to McKnight the cross-examination of are without example, For merit. he was asked on cross-examination if approached men had not two him at his home and asked him give if he would statement would help convict defendants, replied and he that he had been approached. so Questions along line objected this hearsay to as any way connected with the case. men referred way were not identified nor shown to the district attorney’s objection connected with office. The properly (See People Achal, sustained. 125 Cal.App. P.2d McKnight’s contact with the district attorney’s fully brought office was out in other portions testimony. The defense witness C. G. Anthony, vice- *28 Lines, questioned Freight Pacific on direct was
president of in front concerning picket conduct line examination On cross-examination this witness freight line offices. wounds, em- being men he saw men with these testified that strike; men that one of his gone out on who had ployees a rifle beating; during the strike received severe had gasoline tank- company’s into had fired one bullet been Route; turned over and that a truck was Ridge on ers calling for the questions broken. The and windshields going scope objected beyond all as above being overruling of hearsay. The examination and as direct obviously All testi- objections not error. was was such on, line during picket time the was place fied to took knowl- Anthony testifying to facts within own assaults, charges being tried edge. The defendants were offenses. Lewis tes- conspiracy commit those extortion and picket charge line. tified he of this strike that, question no was relevant. There can be specific testimony No reference need be made to further gen- of evidence suppression or the introduction or asserted by the committed trial erally. Some error been placed court, view the discretion must but controlling hands of the the examination trial court evidence, particularly the introduction of witnesses and I am charged, conspiracy which the crime cases prejudicial error has resulted. that no convinced appeal dismissed, Bail appellant should be ap- denying to the other judgments and orders new trials pellants should be affirmed.
Shenk, J., concurred.