COMMONWEALTH v. HOGAN

Bribery. Municipal Corporations, Officers and agents. Jurisdiction. Pleading, Criminal, Indictment. Practice, Criminal, New trial, Arrest of judgment.

A municipal officer of a city, charged in an indictment under G.L.c. 268, § 8, as amended by St. 1923, c. 451, with requesting a gift, accepting a gift, and accepting a promise to make a gift in violation of the provisions of that statute, did not file a demurrer to the indictment or a motion that it be quashed before jurors were sworn at the trial, but pleaded not guilty. There then was a trial on the indictment as presented and the defendant was found guilty. At the argument of a motion for a new trial on the ground that the verdict was against the weight of the evidence and against the law, the defendant for the first time asked for a ruling that the indictment was defective in that it did not sufficiently identify the offence charged so as to protect the defendant in case of a subsequent indictment for the same offence, and, at the hearing in this court of exceptions saved at the trial and to a denial of a motion for a new trial, argued that the indictment was bad for duplicity and that the defendant had raised a question as to the jurisdiction of the court. Held, that the objection to the form of the indictment came too late and that the exception, so far as it was based on that ground, must be overruled.

At the trial of an indictment charging a member of the city council of Cambridge with violation of G.L.c. 268, § 8, as amended by St. 1923, c. 451, there was evidence tending to show that the owner of a building, who desired to have it removed, petitioned the city council for permission to make the removal; that a public hearing was held at which no one appeared in opposition and that on the same date as the hearing an order was adopted authorizing the issuance of the license; that, while the petition was pending, the owner of the building and another person interviewed the defendant at his house in the county of Plymouth, where the defendant solicited and requested money from the owner in consideration of his efforts and vote in favor of the granting of the petition; that on the day of the meeting the person assisting the owner met the defendant in a corridor of the city hall and told him that he had $300 toward expenses; that the defendant attended the meeting and submitted a motion for suspension of rules so that prompt action could be taken; that on the motion for the permit he voted in the negative so that he might move for reconsideration and that his motion for reconsideration did not prevail, the effect of which was that the order could be presented to the mayor for approval the following day instead of waiting thirty-six hours; that the following morning the person assisting the owner met the defendant and paid him $300 and received from the defendant the permit, which had been approved by the mayor. Held, that a verdict of guilty was warranted.

At the trial of the indictment above described, the person who was assisting the owner was called as a witness for the Commonwealth and, cautioned by the court, refused to answer certain questions on the ground that they might tend to incriminate him. The Commonwealth at that point rested its case and the defendant moved that a verdict of not guilty be ordered. The trial judge excused the jury. After a conference between the witness and the district attorney, the witness waived his rights, having been promised immunity by the district attorney, and thereafter testified at length. The defendant objected and excepted to the reopening of the case. Held, that the action of the trial judge showed no error.

It is too late at the arguing of a motion for a new trial, after a defendant has been found guilty on a charge in an indictment, for the first time to contend and ask for a ruling that "the indictment was fatally defective in that it did not sufficiently identify the offence charged as to protect the defendant in case of a subsequent indictment for the same offence."

At the trial of an indictment charging a member of the city council of the city of Cambridge with violation of G.L.c. 268, § 8, as amended by St. 1923, c. 451, in that at Cambridge in the county of Middlesex he corruptly accepted or requested a gift or gratuity or a promise to make a gift under an agreement that his vote should be given on a particular side of a question which was to be brought before him in his official capacity, the defendant pleaded not guilty. While there was evidence of acceptance of money given and received in the county of Middlesex in violation of the statute, the evidence as to solicitation showed only an act in the county of Plymouth. The defendant did not ask before the case went to the jury for a ruling that for want of jurisdiction he could not be convicted of solicitation. The judge charged the jury, "If the Commonwealth has satisfied you, beyond a reasonable doubt, of the truth of what it sets out in that indictment, then your verdict should be guilty." The defendant did not except to this instruction. The defendant was found "guilty as charged in the indictment," and moved in arrest of judgment, on the ground "that there was no evidence that the defendant made any request as alleged in said indictment within the county of Middlesex." The motion was denied. Held, that

(1) The offence described in the statute was one which might be committed either by the requesting or by the accepting of a bribe, and, whether the defendant did one or more of those acts, he was subject on conviction to one punishment;

(2) Upon the record no error was shown.

BRALEY, J.

It is provided by G.L.c. 268, § 8, as amended by c. 451 of the Acts of 1923, that "A legislative, executive, judicial, county or municipal officer who corruptly requests or accepts a gift or gratuity or a promise to make a gift or to do an act beneficial to him, under an agreement or with an understanding that his vote, opinion or judgment shall be given in any particular manner, or upon a particular side of any question, cause or proceeding, which is or may be by law brought before him in his official capacity, or as a consideration for any speech, work or service in connection therewith, or that, in such capacity, he shall make any particular nomination or appointment, shall forfeit his office, be forever disqualified to hold any public office, trust or appointment under the Constitution or laws of the Commonwealth, and be punished by imprisonment in the State Prison for not more than ten years or by a fine of not more than five thousand dollars and imprisonment in jail for not more than two years; and an executive, county other than judicial, or municipal officer who is finally convicted of committing, in connection with the performance of the duties of such office, the crime of larceny, embezzlement or obtaining money under false pretences shall, in addition to the penalty imposed by law for the punishment of such crime, forfeit his office and be forever disqualified to hold any public office, trust or appointment as aforesaid." See Constitution of Massachusetts, c. 6, art. II. The material part of the indictment, which contains only one count, charges, "That William N. [M.?] Hogan at Cambridge in the county of Middlesex aforesaid, did, being a municipal officer of Cambridge aforesaid, corruptly request or accept a gift or gratuity or a promise to make a gift or to do an act beneficial to him, under an agreement or with an understanding that his vote, opinion or judgment should be given in a particular matter, or upon a particular side of a question, cause or proceeding, which was or may have been by law brought before him in his official capacity, or as a consideration for any speech, work or service in connection therewith."

The defendant, having been convicted, contends, that the indictment is bad for duplicity, because it charges that he requested a gift; that he accepted a gift; and that he accepted a promise to make a gift. But, no demurrer or motion to quash having been filed before the jurors were sworn, the case stood for trial on the indictment as presented by the grand jury. G. L. c. 278, § 17. The defendant, however, moved for a bill of particulars, which was furnished, and the trial proceeded on the merits. G.L.c. 277, § 40.

It is next urged, that a verdict should have been directed for the defendant. The credibility of the witnesses was for the jury, and the defendant's position must rest on the contention that there was no evidence on which the jury could find their verdict of "guilty as charged in the indictment." The uncontradicted testimony tended to show, that one Abe R. Hyde, owner of a building on one of the streets of the city, desired to have it moved to a vacant lot opposite the old location, and employed Soley and Blair, Inc., building movers, to do the work. But, a license being necessary, he petitioned the city council on June 26, 1923, for permission to make the removal. G.L.c. 39, § 1; c. 85, § 18. A public hearing was given on July 10, 1923, at which no one appeared in opposition, and on the same date an order was adopted authorizing the superintendent of streets to issue a license to Soley and Blair, Inc., to remove the building in accordance with the petition. There was evidence, and the jury could find, that, while the petition was pending, Hyde and one Reagan, whom Hyde asked to assist him in getting the assent of the defendant to, and aid in the passage of the order, had interviews with the defendant at Nantasket in the town of Hull in the county of Plymouth, in which the defendant solicited and requested money from Hyde in consideration of the defendant's efforts and vote in favor of granting the petition. Commonwealth v. Howard, 205 Mass. 128,144. It also could be found on the evidence of Reagan that on the night of July 10, 1923, he met the defendant in the corridor of the city hall in Cambridge before the meeting of the council, and told him that he had $300 toward expenses. The defendant attended the meeting, and submitted a motion for suspension of the rules so that prompt action could be taken on the petition. The defendant voted in the negative, and after the order had been passed, moved for a reconsideration which did not prevail. The effect of this as explained by the city clerk, a witness for the Commonwealth, was, that the order could be presented to the mayor for his approval on the following day. But if reconsideration had not been moved, the order would have to remain in the office of the city clerk for thirty-six hours after the meeting. The following morning Reagan met the defendant by appointment at Cambridge, and gave to him $300, which had been put in his hands for that purpose by Hyde, and received from the defendant the permit or license, which had been approved by the mayor, and gave it to a son of Hyde. It is true that William S. Soley of Soley and Blair, Inc., testified, that the permit which he received at the office of Hyde was a certified copy of the order of the city council authorizing the moving of the building. But the jury could say, that the paper received by Reagan was the certified copy afterwards delivered to the mover. It is submitted by the defendant, that Reagan really sought and obtained the money for himself, and that upon discovery of his deceit endeavored to exculpate himself, by saying, that he received the money for, and gave it to the defendant. But the real nature of the transactions were questions of fact on all the evidence.

If the jury believed the evidence of Reagan and of Hyde, the defendant's guilt was manifest, not only of soliciting, but of receiving a bribe. The first and second requests could not have been given.

The exceptions to the reopening of the case after the Commonwealth had rested, and to the admission of evidence, present no error of law and the refusal to give the third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth and sixteenth requests, in so far as not covered by the instructions, was right.

The defendant moved for a new trial because the verdict was against the evidence, the weight of the evidence, and the law. It is argued, that, instead of being refused, a new trial should have been granted. The defendant at the hearing on the motion requested the trial judge to rule that "the indictment was fatally defective in that it did not sufficiently identify the offence charged as to protect the defendant in case of a subsequent indictment for the same offence." The granting of the motion as framed was discretionary with the court, and the request could not be given. The question of the alleged insufficiency of the indictment should have been raised at the trial.

The defendant after sentence also moved in arrest of judgment, on the ground "that there was no evidence that the defendant made any request as alleged in said indictment within the county of Middlesex." G.L.c. 277, § 20; c. 278, § 34. The motion was denied, and the defendant excepted. The verdict was general, and the judge charged the jury, "If the Commonwealth has satisfied you, beyond a reasonable doubt, of the truth of what it sets out in that indictment, then your verdict should be guilty." The defendant did not ask for a ruling before the case went to the jury, that for want of jurisdiction he could not be convicted of solicitation, nor did he except to this instruction. The court undoubtedly had jurisdiction of the acceptance of the money given and received at Cambridge in consideration of the defendant's favorable action in the city council. The offence is an offence which may be committed in either of the acts charged, and whether singly or together subjects the defendant on conviction to one punishment. Stevens v. Commonwealth, 6 Met. 241, 242. Commonwealth v. Brown, 14 Gray, 419. Commonwealth v. Curtis, 9 Allen, 266. Commonwealth v. Carney, 153 Mass. 444. Commonwealth v. Kronick, 196 Mass. 286. Commonwealth v. Wotton, 201 Mass. 81. Commonwealth v. King, 202 Mass. 379, 394. Commonwealth v. Macloon, 101 Mass. 1, 6. Commonwealth v. White, 123 Mass. 430, 433, 434. Commonwealth v. Pettes, 114 Mass. 307, 310, 311.

The defendant having failed to show any reversible error at the trial, the entry must be

Exceptions overruled.