165 P.2d 555 | Cal. Ct. App. | 1917
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *428 Appeal from a judgment directing the imprisonment of the defendant in the state penitentiary for the period of his natural life, and also from an order denying his motion for a new trial. *429
The defendant was accused by an indictment of a grand jury of the county of Los Angeles, in which several other defendants were named, of having on the first day of October, 1910, feloniously and with malice aforethought murdered one Charles Hagerty. The indictment was filed on the fifth day of May, 1911. Defendant not being apprehended until the year 1915, he was then placed upon trial, which after a lengthy hearing, resulted in a verdict of guilty being returned against him. It will be necessary to make a somewhat extended statement of the evidence heard at the trial, in order to give proper illustration to the argument of appellant, and to the propositions which he advances, and which he claims entitle him to have the judgment reversed. In this statement we shall refer most particularly to the testimony introduced on behalf of the prosecution. The attempt will be only to first furnish in narrative a history of the alleged crime, as the evidence for the people tended to prove it, and we will later consider the competency of the testimony as it is met by objections urged on behalf of the appellant.
In the year 1905 there existed in the United States an organization designated as the International Association of Bridge and Structural Ironworkers. It was an organization, as its name implies, made up of various suborganizations or labor unions scattered throughout the country. The objects as declared by its constitution were "to cultivate feelings of friendship among the craft, to assist each other to secure employment, to reduce the hours of labor, to secure adequate pay for work, . . . and to elevate the moral, intellectual and social condition of all members, and to improve the trade." The offices of the association were in Indiana, and a system was provided by which funds should be collected and disbursed. J. J. McNamara was the secretary and treasurer of the association during the time herein mentioned. The association in 1905 declared a general strike against the American Bridge Company, which was a large contracting concern engaged in the erection of structures of iron and steel. One of the objects desired by the association was to compel all employers who were using nonunion labor to unionize their plants and employ only members of the recognized union. The American Bridge Company was one of the chief employers of nonunion labor, but was not the only concern carrying on business on the open-shop plan in the structural *430 iron and steel line. J. J. McNamara, apparently without any authority given him by the constitution or members of the organization, unless that authority is deemed to be an implied one, encouraged persons to destroy various work being constructed under the open-shop plan. In 1908 and 1909, bridges, viaducts, and other structural work being done by nonunion employers, to the number of perhaps twenty, were destroyed by dynamite or nitroglycerin. Most of these explosions were produced with the knowledge and active encouragement of J. J. McNamara, and funds of the association were used to pay the persons who destroyed the work. The evidence was sufficient to show that the purpose of J. J. McNamara and fellow-officers of the association was to compel the employers of nonunion labor to accept the dictates of the association, and, in order to do this, the means apparently most ready and acceptable to their hands was the use of dynamite and other high explosives for the purpose of ruining work under construction and destroying the results of the labor of the nonunion employees. It was customary for the heads of local unions scattered about the country, when they desired assistance in protecting their cause in the particular locality, to request of the International Association funds and assistance. In 1910, the attention of J. J. McNamara and his fellow officers was directed to the state of California and particularly to the city of Los Angeles, which was known to be to a considerable extent an "open-shop" city. One Clancy, a leader of an ironworkers' union in San Francisco, wrote to J. J. McNamara several times, asking that a certain man be sent to the west (this man being one Hockin, who had produced several explosions theretofore in the east). J. J. McNamara did not send Hockin, but did send his brother, J. B. McNamara. J. B. McNamara reached Seattle and was there visited by Clancy, and he then proceeded to San Francisco. The McNamaras had themselves concocted an infernal machine which had been used to produce the explosions on the nonunion work. This machine consisted of a "tattoo" clock attached to a board, to which board was also attached a dry battery. By a system of wiring, the clocks on the alarm dials could be set at any chosen hour, and when that hour arrived and the bell-hammer commenced to vibrate, electrical connection would be made from the battery to a fulminating cap attached to dynamite, or whatever explosive was used, and *431 thus the results planned for would be accomplished. J. B. McNamara, in the office of the association in Indianapolis just before he left there for the coast, said, in the presence of his brother and one McManigal, that he was going out and give them "a damned good cleaning up." At the time J. B. McNamara arrived in San Francisco a great effort was being made to unionize the city of Los Angeles in the iron-working trades, and a great deal of money was spent in that endeavor. The "Los Angeles Times" and the Merchants Manufacturers' Association of Los Angeles had both advocated the open-shop plan of labor employment, and had been most active in work in opposition to the efforts of the unions to stamp out the open-shop policy. One Zehandelaar was the secretary of the Merchants Manufacturers' Association, and Harrison Gray Otis was president and manager of the "Los Angeles Times." The defendant was a union worker who resided in San Francisco at and before the occurrence of the explosion which caused the death of Hagerty. He had been active in the work of attempting to unionize the city of Los Angeles, and had visited that city immediately before meeting McNamara, in the interests of the unionist work. Immediately upon the arrival of J. B. McNamara in the city of San Francisco he was visited by defendant frequently. On the seventeenth day of September, 1910, defendant wrote out (the evidence proved his handwriting), an advertisement which was published in two San Francisco newspapers, in the following form:
"Wanted — By party of men, 16-24 foot launch for ten days; cruise around Bay and tributaries. Best of references."
Soon thereafter a launch was rented from a boat furnishing concern. This launch was a power launch and was called the "Pastime." About the same time a man appeared at the office of a company manufacturing high explosives, which office was located in the city of San Francisco. This man desired to purchase a very high explosive, asking for "90 per cent nitroglycerin." Upon inquiry being made as to what work was to be done with it, the manufacturing company's representative was informed that it was desired to be used in blowing out stumps. The applicant was expostulated with by the manufacturer's agent and told that such a high percentage of explosive was not needed, but that a forty per cent grade would be sufficient. However, the higher per cent *432 quality was insisted upon, with the result that an order was given by the agent to his company to have manufactured five hundred pounds of eighty per cent dynamite. The manufacturing plant of the powder company was located across the bay from San Francisco, and from that plant was later taken the explosive by defendant and two other persons. After securing the launch for a rental period, the men went to Oakland and procured some enameled letters which they placed over the name painted on the launch, and changed it from "Pastime" to "Peerless." Schmidt was one of these men who appeared at the different places. One of the defendant's eyes was defective, and quite noticeably so to the ordinary observer. He was identified by storekeepers at Oakland, by a boathouse-man at Sausalito, where the name of the launch was changed, and by the delivery agents of the powder manufacturing company at the latter's plant. He was identified by persons who were acquainted with his physical characteristics, and who saw him at the numerous times when he visited McNamara during the latter's stay in San Francisco. It will be unnecessary to mention particularly the evidence which described the defendant as being a participant in the work of securing the dynamite. It is enough to say that there was ample evidence to authorize the jury to conclude that he was one of the persons so concerned. The dynamite having been secured, it was taken to the city of San Francisco, and a large part of it stored in an empty house which was rented for the purpose. On the morning of October 1, 1910, an explosion occurred in the building in which the "Los Angeles Times" was published and which was owned by the Times Publishing Corporation. The explosion occurred at 1 o'clock in the morning at a time when numerous of the employees were still at work, the journal published being a morning newspaper. The explosion occurred in a little alley-way which, on the ground floor, separated two portions of the building and which was closed overhead. The explosion was of such violence as to rend iron or steel beams, and to force debris through the roof of the building and to a considerable height above. Fire immediately succeeded the explosion and the building was almost entirely destroyed, twenty-one persons being killed, among them Charles Hagerty. One witness testified to having seen a man whom he believed to be J. B. McNamara in the lower building of the "Times" the night before *433 the explosion occurred. On the morning of the 1st of October, a suitcase was found near the residence of the president of the Times Company by police officers. One of the officers started to cut open the suitcase, when a whirring noise was heard, and the men immediately got out of the way. When they reached a distance of one hundred feet or more there was an explosion which blew a large hole in the ground, tore the leaves from trees, and broke a number of windows in the neighborhood. At about the same time a package was found close to the residence of Zehandelaar, the secretary of the Merchants Manufacturers' Association. This package was found to contain a number of sticks of dynamite and an infernal machine manufactured in exactly the way that the McNamaras had before fashioned those instruments of destruction. The dynamite found in this parcel was stamped with the name of the company which furnished the explosive to the defendant and McNamara in San Francisco, and upon being analyzed by a chemist was found to be of the same composition as the lot procured from the company by Schmidt and McNamara. One witness testified that in the summer of 1910 he had a conversation in San Francisco with the defendant, and asked him at that time where he had been. The witness then said: "He said he had been down to Los Angeles, and so we got to talking further. He says, they are having an awful time down there, he says. He says, they are beating up men down there — they won't give a union man any chance down there at all. It is a regular Otis town they are running. There is something going to happen to him pretty soon." After the indictment of defendant, search being made for him, he was not to be found. It was shown in testimony that he had gone to New York and lived at the house of Emma Goldman, a portion of the time under an alias. One witness testified that defendant told him that he had intended to go to London, England, but that he could not get away from New York on account of the war. Further, that he (Schmidt) said that if he had had the Los Angeles job alone he could have got out all right with it. The person McManigal, who has been before referred to herein, testified on behalf of the prosecution, and gave evidence relating to the general destructive operations inaugurated and carried out under the direction of J. J. McNamara. The records and *434 files found in the office of the association at Indianapolis, embracing correspondence had by McNamara with various persons concerned in producing explosions, were introduced in evidence. Taking the testimony all in all, and leaving out of consideration the matter of its competency at this point, it must appear that the evidence was ample to show the active participation of the defendant in the crime which had been committed. To what has been stated, it may be added that there was competent and sufficient evidence to show that the explosion in the Times building was the result of exterior agency, an explosive brought on to the premises and used in an unlawful way. The foregoing is a somewhat meager abstract of the evidence and presents its salient features only. The testimony given at the trial covers about eight thousand pages, and more than six hundred exhibits were introduced before the jury.
The points relied upon by appellant as furnishing ground for his claim that the judgment and order in this case should be reversed will be considered in the order in which they are proposed by his brief.
The defendant upon being brought into court presented a motion in which numerous alleged grounds were set forth as reasons why the indictment should be quashed. One of the principal grounds asserted was that four of the grand jurors were disqualified by reason of bias and prejudice. Defendant, in his affidavit which was presented with the motion, set out many alleged facts which would tend to show that the grand jurors challenged had been, prior to their being sworn on the jury, active in securing information relative to the matter of the explosion which produced the death of Hagerty and the fellow-employees. Under section
It is the contention of the appellant that the change in the law by which the ground of the bias and prejudice of the grand jurors as foundation for a motion to set aside the indictment, was taken away, if made to apply to the motion when presented by him, would be ex post facto, and hence unconstitutional. The definition of an ex post facto law is given very full exposition by the supreme court of the United States in the leading case, which is entitled Kring v. Missouri,
In the motion to quash the indictment, it was also asserted by the defendant that persons other than those authorized by the law were permitted to be present during the proceedings taken before the grand jury, and that evidence of illegal, hearsay, and secondary character was permitted to be introduced and was considered. It is well settled, not only that a defendant on a motion to quash an indictment can only urge such grounds as are, by section
The next complaint made by appellant is that the trial judge committed prejudicial error in disallowing certain challenges taken by the defendant as to seventeen of the veniremen who were examined as to their qualifications to sit as jurors and try the defendant for the crime charged. The challenges interposed were all upon the ground of the actual bias of the veniremen. As was most natural to occur, after the destruction of the Times building reports as to the cause thereof were widespread and became the subject of discussion between individuals, as well as furnishing material for various reports in the newspapers. Prior to the impanelment of the jury which sat at the trial of this defendant, the two McNamaras jointly charged in the same indictment with defendant, had pleaded guilty and been sentenced, and this information *441
had been heralded forth through like channels. Many of the veniremen called had read newspaper reports and heard street discussion regarding the explosion and its cause. The state of mind of each of the seventeen veniremen, as developed by the lengthy examination of counsel, was in the main similar as to the matters constituting the alleged bias. A general statement of the answers brought forth, with little variation, was about as follows: The venireman had heard of the explosion in the Times building shortly after it occurred; he had read accounts thereof in the newspapers and had discussed with persons not concerned in the case the subject of the explosion; that these accounts assigned the cause of the wrecking of the Times building as being the explosion of dynamite unlawfully used; that upon the McNamaras pleading guilty to the charge, venireman had read an account of the proceedings and from all of these things had formed an opinion that the Times building had been blown up by dynamite unlawfully exploded with criminal intent; that the opinion was more or less fixed and that evidence would be required to dislodge it. None of the veniremen in any opinion or belief which they entertained, connected the defendant with the commission of the crime, save one, who stated in a general way that he held an opinion affecting the guilt of the defendant. Some of the veniremen had passed the scene of the explosion and had observed the wreckage, with twisted iron beams, and in some cases had observed that windows in an adjoining building had been shattered. In the course of their questioning, counsel for the defendant intimated that it was a part of their defense that the Times building was destroyed by a gas explosion accidentally, and not by dynamite with criminal intent. The argument in support of the challenge was that, as these veniremen had formed an opinion as to the facts establishing the corpus delicti, they were utterly disqualified, notwithstanding that they in no wise in their opinion otherwise connected the defendant with the commission of the crime. It satisfactorily appeared from the answers given by the veniremen that the foundation for any opinion entertained by them was that denominated in section
We now come to a consideration of the kind and competency of the evidence which made up the proof offered by the prosecution. As a part of its case, the state, as we have before indicated, introduced testimony showing a series of unlawful acts which had been committed some time prior to the first appearance of the appellant Schmidt in his connection with the anti-open-shop campaign. This testimony included evidence of the fact that bridges had been blown up, material destroyed, and life threatened throughout a number of the eastern states as a result of the determination of the executive board of the International Association of Bridge and Structural Ironworkers to unionize work; that money had been paid to various persons for the purpose of compensating them in the unlawful and reprehensible enterprise. Conversations occurring between the persons so engaged, some of them referring to explosions which had already occurred, some of them referring to future plans in the same direction, were narrated; in fact, it is apparent that any and every act of the individuals concerned referring to the unlawful enterprise, wherever evidence thereof could be procured, was presented to the jury. The record of correspondence kept in the office of J. J. McNamara, the secretary-treasurer of the International Association, was obtained and was also produced in evidence. This *444
was correspondence passing between the office of McNamara and various persons concerned in the unlawful depredations undertaken by the executive board of the association, and it came and went to different cities scattered over the United States. The work of destruction of structures erected by open-shop contractors in the east was well under way before Clancy's appeal for help in California was received and heeded. As a result of that appeal J. B. McNamara came west on his mission of destruction. Plainly from the sketch we have made of the evidence, it was made to appear by overwhelming proof that a conspiracy was organized and the work thereof prosecuted to the end that at every place in the United States where the open shop was in force it was planned to use the weapon of nitroglycerin or dynamite to intimidate those opposed to the demand of the executive board of the International Association. The evidence showed that this conspiracy, so gigantic in its scope, was a continuing one — that is, the only limit to its life seemed to be the exhaustion of the means available to the executive board, or the submission of the employers of nonunion labor. And we think that counsel for appellant fails to apprehend the effect of the evidence to establish the conclusions just suggested, when he refers to the destructive work done in the east as work done in the "Eastern conspiracy." The distinction so sought to be impressed, and which we cannot allow, is made for the purpose of giving weight to the argument found in the brief of appellant, that the appellant Schmidt not being a party to the lawless acts committed in the east, was prejudiced because of evidence being introduced with reference to such acts. Conceding the correctness of his premise, we might well adopt the appellant's conclusion. But the basis for the argument is lacking in the proof. It is a fundamental rule long settled by decisions that in proving a conspiracy it is not necessary that proof be made that the parties met and actually agreed to undertake the performance of the unlawful act, and that a conspiracy may be shown by proof of facts and circumstances sufficient to satisfy the jury of the existence of the conspiracy, leaving the weight and sufficiency of the evidence to the triers of the questions of fact. (People v.Donnolly,
The judgment and order are affirmed.
Conrey, P. J., and Shaw, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on May 14, 1917, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 14, 1917.