45 N.E.2d 678 | Ill. | 1942
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *380 A jury in the circuit court of Macon county found plaintiffs in error, Harry E. Meisenhelter, Edwin Roy, Stewart C. Lorton, George Diehl and George Bruns guilty of the crime of malicious mischief. Motions for a new trial and in arrest of judgment were denied, judgment was entered on the verdict and they were sentenced to the penitentiary. They prosecute this writ of error to reverse that judgment. *381
The indictment in each of seven counts charges that plaintiffs in error and others therein named as defendants, on February 9, 1940, willfully, maliciously and feloniously injured, broke and destroyed a certain oil pipe line of the Texas Empire Pipe Line Company, a corporation, to the damage of the corporation in the sum of $5,000.
At the request of the prosecution a severance was granted to defendants Louise Schoof and Edward F. Foxx. The indictment as against Mack Ray and George E. Good was dismissed. Harry E. Meisenhelter, Edwin Roy and Stewart C. Lorton made motions for a severance and separate trials, which were denied. Plaintiffs in error with the remaining defendants were placed on trial and found guilty by a jury. A new trial was granted to Melvin E. Watkins and Cecil Wilson.
The pipe line injured was laid in the summer of 1939 and the early part of 1940. It extended through Macon county. It was laid with nonunion labor. Officials of unions representing various trades and crafts, doing the kind of work required in the laying of such a pipe line, endeavored to induce the construction company to employ union labor. Meisenhelter, business agent of the Decatur Local of the Common Laborers' Union, Lorton, as representative of the Boilermakers' Union in Macon and other counties in Illinois, Ray, representing the Teamsters' Union, and other labor officials, met with Wilbur J. Holleman of Tulsa, Oklahoma, representing Williams Brothers Construction Company, at the office of Joseph J. Vincent, Labor Conciliator for the State of Illinois. No agreement resulted from this meeting and the pipe line in question was completed in January, 1940.
Between 7:00 and 8:00 A.M. on February 9, 1940, the pipe line was bombed at a point near Boody, in Macon county. No issue is made of the fact that the pipe line was injured by the use of an explosive placed by human hands and that a large quantity of oil was lost. The only *382 question of fact in this case is whether the defendants were the ones who bombed it or caused it to be bombed.
On July 16, 1941, the grand jury of Macon county returned two indictments, one charging plaintiffs in error and others with conspiracy to bomb, and the other with malicious mischief by bombing and injuring a pipe line of the Texas Empire Pipe Line Company. Soon after the return of those indictments Pearle Hoskinson pleaded guilty to the conspiracy indictment and asked for probation. The indictment before us was returned October 6, 1941. It charged malicious mischief, naming Meisenhelter, Foxx, Watkins, Roy, Wilson, Mack Ray, Schoof, George E. Good, Lorton, Diehl and Bruns, and charging the same bombing as the indictment returned July 16, 1941. It was dismissed as to Ray and Good, as stated. On December 4, 1941, on motion of the State's Attorney, the malicious-mischief indictment returned July 16, 1941, wasnolled. Pearle Hoskinson was not named in the indictment of October 6, 1941. He was the principal witness for the People in the conspiracy case as well as the later case. Motions of plaintiffs in error Diehl and Bruns to be discharged from further custody on the ground that they had been in custody without trial for more than four months, were denied.
Testimony connecting plaintiffs in error with the crime was given largely by Pearle Hoskinson, whose testimony was substantially as follows: The executive board of the Common Laborers' Union met in June, 1939. Meisenhelter, Roy, Wilson, Watkins, Foxx and Hoskinson were present. Meisenhelter stated that as nonunion workmen were employed in the construction of the pipe line, it would be necessary to have a slush fund, to be obtained from initiation fees, dues and reinstatements of members, to be held out by Louise Schoof and turned over to Roy as custodian. The following day Roy, in the presence of Meisenhelter and Hoskinson, instructed Louise Schoof to hold out money from initiation fees, dues and reinstatements and give the *383 money to him, giving the members credit but destroying the stubs; to keep the records at home and keep track of the amount turned over to Roy. Meisenhelter stated to Schoof that this money was to be used for blowing up the pipe line. In July or August, 1939, Schoof, in the presence of Roy and Hoskinson, took two initiation fees of $50 each and delivered the money to Roy.
Hoskinson's testimony as to executive board meetings, the creation of the slush fund and agreement to blow up the pipe line, was corroborated by Roy, Wilson and Watkins. His testimony about the slush fund and Roy's instructions was corroborated by Louise Schoof. The State's evidence was further to the following effect: At a meeting of the executive board at which all members were present except George Cole, Meisenhelter said he was trying to get something done; that the slush fund was not building up very fast. Roy made a report of the amount then in the fund. In January, 1940, Meisenhelter and Hoskinson drove near the pipe line and picked out two spots where the pipe line could be blown. On their return Meisenhelter told Schoof they had picked out a spot. This testimony was limited to Meisenhelter. At the next board meeting, at which Meisenhelter, Foxx, Roy, Wilson, Watkins and Hoskinson were present, Meisenhelter stated the line was in Macon county and would be taken care of in a short time, and that Lorton was putting pressure on him to do something in this county. This statement was stricken as to Lorton.
The State's further evidence was to the following effect: On February 4, 1940, while Meisenhelter and Hoskinson were discusing the pipe line at Meisenhelter's house, Lorton, Bruns and Diehl came to the house. Lorton introduced Diehl as Jones and Bruns as Brown. Meisenhelter asked Lorton what he wanted with him and Lorton said: "We are ready to take care of that pipe line you wanted blown up." Meisenhelter and Lorton agreed it would cost $500. *384 Lorton said: "You get the $500 and have it ready and these fellows will be back up the first part of next week." The money was to be paid to Diehl and Bruns. Monday morning, February 5, Meisenhelter ordered a meeting of the executive board at his house that night. Roy, Foxx, Wilson, Watkins, Meisenhelter and Hoskinson were present. Meisenhelter said that Buck (Lorton) and some of the fellows were up from East St. Louis the day before and talked about blowing up the pipe line and Lorton was sending up two fellows the first part of the week to blow it up and it would cost $500. Roy said he only had $135 in the slush fund. There was evidence that Meisenhelter borrowed money from two different persons and later paid it back and that at a meeting on February 9 Meisenhelter said, in the presence of Foxx, Roy, Watkins, Wilson and Hoskinson, that "those fellows" came to his house about 2:00 A.M., went to the basement and made up the bomb, and left.
At approximately 8:00 A.M. of February 9, 1940, the pipe line was blown up, causing a loss of oil valued at $1150, and repairs to the pipe line cost $252.68. Statements of Roy, Watkins and Wilson, from which all names except that of the one making the statement were deleted, and in place of the deleted names the words "other persons" were substituted, were read to the jury. The court instructed the jury as to each statement that it was admissible only as against the defendant who made it and was not to be considered against any other defendant. Plaintiffs in error were sentenced to the penitentiary, Diehl and Bruns from one to ten years, with an advisory recommendation of a minimum term of eight years, Lorton and Meisenhelter from one to ten years, with an advisory recommendation of a minimum term of seven years, Roy to from one to ten years, with an advisory recommendation of a minimum of one year. *385
We will first discuss those assignments of error applicable to certain plaintiffs in error. Plaintiffs in error Diehl and Bruns insist it was error to refuse to discharge them under the statute requiring their release if not placed on trial within four months of their incarceration. They base this claim on section 18 of division XIII of the Criminal Code, (Ill. Rev. Stat. 1941, chap. 38, par. 748,) which provides: "Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exertion has been made to procure the evidence on the part of the People, and that there is reasonable grounds to believe that such evidence may be procured at a later day in which case the court may continue the cause for not more than sixty (60) days."
This statute was enacted to give practical effect to section 9 of the bill of rights, securing to the accused in a criminal prosecution a speedy public trial but which does not fix specific limitations. (People v. Maniatis,
The record in the instant case shows that plaintiffs in error Diehl and Bruns were arrested July 13, 1941, indicted July 16, 1941, for conspiracy and malicious mischief *386 and that on July 21, 1941, the State's Attorney, in open court, moved for a setting of the conspiracy and malicious mischief cases against plaintiffs in error for trial, to which plaintiffs in error objected. The record also shows that on July 30, 1941, August 15, 1941, and August 29, 1941, the People sought to secure a setting of these cases but either these plaintiffs in error, or other defendants with their knowledge, objected. By agreement, trial was later set for October 27, 1941. On that date Diehl and Bruns were in open court with counsel. When counsel for plaintiff in error Roy moved for a continuance because of illness of counsel, no objection was urged on their behalf. After the court asked if there were objections, the cause was continued to November 3, 1941, when the trial of the conspiracy case was begun, in which plaintiffs in error Diehl and Bruns were defendants. The trial lasted to and including November 20, 1941.
On November 8, 1941, the People moved that trial under the malicious-mischief indictment returned October 6, 1941, be set. By agreement this motion was continued until the tenth and again to the twelfth of November, when plaintiffs in error Diehl and Bruns asked to have the motion continued until the thirteenth. These facts show that from five days after the return of the indictments, the prosecution made repeated efforts to get both causes set for trial. The record shows with equal clarity that at the first attempt counsel for plaintiffs in error Diehl and Bruns objected and asked for more time. It is equally clear that at the hearings on the subsequent attempts to have the cause set for hearing, counsel for plaintiffs in error Diehl and Bruns were present and offered no objection to the motions of other defendants to continue. At no time did the People move for delay. We believe the record shows no neglect on the part of the prosecution to bring plaintiffs in error Diehl and Bruns to trial and the court did *387 not err in denying their motion for discharge under the four-months statute.
Plaintiffs in error Meisenhelter, Roy and Lorton insist it was error to deny their motions for a severance and for separate trials. Separate motions were filed prior to the trial. Each motion was verified and set forth that the indictment charged all of the defendants with the crime of malicious mischief consisting of the bombing of a pipe line; that in a conspiracy case tried in the same court against these same defendants, all were found guilty; that upon the trial of the conspiracy case the principal witness for the prosecution was one Pearle Hoskinson, one of the defendants in that case, who had pleaded guilty before trial and on the trial testified over objection to many prejudicial statements of other defendants including movants, out of their presence; that on the trial of the conspiracy case, signed statements in the nature of confessions allegedly made by named defendants, were admitted in evidence over objection, and though the names of others than the person making each signed confession were deleted by the court, the alleged connection with these defendants was clearly shown to the jury because of the oral undeleted testimony of witness Pearle Hoskinson previously admitted in evidence, in which the defendants making the motion were named in connection with the alleged confessions; that the prosecution intended to use the signed statements and testimony of said Pearle Hoskinson and the effect of the admission of such testimony would be to prejudice the defendant making the motion and to deprive him of a fair and impartial trial. The motions for severance were denied.
Plaintiffs in error, in contending this was prejudicial error, rely upon People v. Cassler,
The general rule is that persons jointly indicted shall be jointly tried. Except in those cases where fairness to one or more defendants requires that a severance be granted, the matter lies in the discretion of the trial judge and the question of abuse of such discretion depends upon the facts of each case. It is incumbent upon a defendant, moving for a separate trial, to show to the trial judge how he would be prejudiced by a joint trial. If he fails so to do, he cannot, on review, complain of the action of the trial court in denying his motion. (People v.Minnecci, supra.) Where defenses are antagonistic and one defendant accuses the other, thus making it impossible for the defendant asking for a severance to have a fair trial, the severance should be granted. People v. Minnecci, supra.
A motion for a severance must set out the grounds showing the reason for granting the severance. (People v. Braune,
A reading of the motions for severance in this case discloses that in setting out the grounds for granting a severance, no showing was made that petitioner's defenses were antagonistic to the defense of the codefendant whose statements it was alleged would be offered in evidence. In this case each motion pointed out that on the trial of the conspiracy case in which each defendant was found guilty, the court deleted the name of the defendant making the motion for a severance, thus showing that the court in the trial of the conspiracy case protected each moving defendant. The motions did not point out that the witness Hoskinson, the key witness upon whose testimony the People relied for a conviction, was not a codefendant in the instant case.
In People v. Siegal,
Plaintiff in error Lorton next contends that his conviction is based largely upon the testimony of Hoskinson, an ex-convict, an admitted accomplice and supplicant for probation, that he saw Lorton at Meisenhelter's home on the morning of February 4, 1940, with Bruns and Diehl. This Lorton denied and testified to his being at the Broadview hotel in East St. Louis at the time Hoskinson testified Lorton was at the home of plaintiff in error Meisenhelter. On cross-examination he admitted that he fixed the date as February 4, 1940, from recollections only. Five witnesses testified on direct examination that Lorton was at the Broadview hotel from 10:00 A.M. until 1:00 P.M. on February 4, 1940. On cross-examination one of the witnesses, Tirrell, admitted he was requested by Hess, another of the corroborating witnesses, to establish the date of the meeting as February 4, 1940, and that he tried from 11:00 o'clock to 6:00 o'clock the day previous to his testifying to find any record of a meeting of the Boilermakers or a rental of a room in that hotel by the Boilermakers, on that day, but failed to find such record.
The testimony as to Lorton's whereabouts on the morning of February 4, 1940, was conflicting. His whereabouts on that date presented an affirmative defense of alibi and the burden of establishing it was on him. The number of witnesses testifying for either the prosecution or defense is not of controlling importance. (People v. Bloom, *391
Certain points and arguments are made which are applicable to all of plaintiffs in error. One is that the conviction being based upon the testimony of an accomplice, both the witness and his testimony are of a doubtful character and the record must be free of error to sustain the verdict and judgment thereon. The testimony of an accomplice is subject to grave suspicion and should be acted upon with great caution. (People v. Harvey,
Plaintiffs in error complain of rulings on evidence. They contend that the court erred in admitting the testimony of Hoskinson that Meisenhelter told him that Lorton was "putting pressure on him to do something about the *392 pipe line in Macon county." They argue that such statement, if made, was outside the presence of Lorton and all other defendants, and was therefore incompetent. The record shows the trial court sustained Lorton's objection to the statement and directed the jury to disregard that testimony so far as Lorton was concerned. Other testimony of this witness is objected to as not being made during the existence of the conspiracy. It is also contended that the admission of the statements, with the names of plaintiffs in error deleted, was error, as Hoskinson had identified each defendant and placed each of them in the alleged conspiracy.
The theory of the State is that plaintiffs in error, with others, conspired to have the pipe line blown up, and that the rule of proof of conspiracy authorizes the introduction of evidence as to the acts and declarations of the coconspirators, and there need be only such ancillary proof as is sufficient, in the opinion of the trial judge, to establish prima facie the existence of a conspiracy among the parties, citing 1 Greenleaf on Evidence, section 111. The rule that the conspiracy must be established prima facie before evidence of the acts and declarations of one conspirator can be received in evidence against another, is difficult of application where the proof of the conspiracy depends upon a large amount of circumstantial evidence and of isolated and independent acts, and it has been held that in a case where acts and declarations are introduced in evidence, and the whole of the evidence introduced on the trial, taken together, shows that such a conspiracy actually exists, "it will be considered immaterial whether the conspiracy was established before or after the introduction of such acts and declarations." (State v. Weimer,
Evidence is admissible to prove a conspiracy to commit the crime with which a defendant is charged although no conspiracy is laid in the indictment; and where a conspiracy is established, every act or declaration of any of the conspirators in furtherance of the common purpose is regarded as the act or declaration of each of them and may be proved against all. People
v. Levy,
The several statements of plaintiff in error Meisenhelter to Hoskinson, testified to by the latter, if the jury believed they were made, though made in the absence of some of the plaintiffs in error, were clearly made in furtherance of the common purpose to destroy the pipe line, and were therefore competent and provable against the other members of the conspiracy, though not made in their presence. (People v. Levy, supra; People v. Looney,supra; Spies v. People, supra; State v. Buck,
Testimony admitted, over objection, of certain statements and occurrences after the commission of the crime, and after the conspiracy had terminated, was not admissible against plaintiffs in error not present, but we are unable to see wherein the error was sufficient to reverse the judgment. The competent evidence in the record fully justified the jury's verdict. None of the plaintiffs in error took the stand and denied participation in the conspiracy or the commission of the crime for which they were on trial, except plaintiff in error Lorton, as herein stated.
Complaint is made in the giving of People's instructions 3 to 9, inclusive, which were verbatim copies of each of the seven counts in the indictment, in that those instructions did not explain to the jury that the seven counts alleged only one crime; did not explain that the defendants had pleaded not guilty to the charges in the seven counts in the indictment and that the seven counts consisted of a naked charge and that the burden was upon the People to prove the charges contained in those counts beyond a reasonable doubt. Instructions are considered as a series. It is not necessary that each instruction state all *395 the law applicable to the case being tried. Other instructions apprised the jury of all the claimed omissions from the People's instructions complained of. Taken as a series the jury was fairly instructed and we find no error in giving instructions.
It is next contended that the act of 1941 authorizing the trial judge to make an advisory recommendation of minimum and maximum sentences, violates section 13 of article IV of the constitution. This court in People v. Montana,
Reversed and remanded, with directions.
