170 Mass. 228 | Mass. | 1898
In this prosecution for bribery, under Pub. Sts. c. 205, § 9, as amended by St. 1891, c. 349, the three defendants
The record shows a motion to quash the indictment, filed by the defendant O’Connell, and another motion to quash filed by the two Donovans; a motion filed at the trial by each defendant to direct a verdict of not guilty; a motion by the defendant O’Connell to set aside the verdict; and motions by each defendant for new trial and in arrest of judgment. There are also two bills of exceptions, the first relating to the overruling of the motions to quash and to the proceedings at the jury trial, including the denial of the motions to order verdicts of not guilty, and the second to the overruling of the motions in arrest of judgment. The record also shows appeals from the overruling of O’Connell’s motion to set aside the verdict, and of the several motions for new trial and in arrest of judgment.
The first bill of exceptions does not purport to state all the evidence which was before the jury, but the second bill states that all the evidence and facts material to the second bill are contained in the first bill.
The crime of which the defendants were convicted was connected with questions arising under the charter of the city of Lowell and the amendments thereto, some phases of which have been already considered by this court. By St. 1896, c. 415, all the executive powers vested in the city council were conferred upon the mayor, who proceeded to make appointments to offices, which, except for this change in the charter, would have been filled by action of the city coúncil. The mayor’s right to appoint
The acts of the defendants which the government relied upon to obtain their conviction were done on February 26, 1897. This was on Friday, and on the evening of the following‘Monday, March 1, a caucus of the Republican members of the city government was to be held to determine whether the Republican members of the city council should unite to remove, under
About three o’clock on the same afternoon, James C. Donovan appeared at Lang’s store, where, through the suggestion of the chairman of the Republican city committee, three persons, one of whom was a stenographer, were concealed, who testified that Donovan said that he would like to have his brother Ned kept in office, and that Lang replied that he was a Republican, and it would be fatal to him if he should break from the party; that Donovan said it would blow over; that Lang said it would take a good deal of money to buy him, and Donovan said, “ Well, hoxv much?” that after considerable talk Lang said it would cost five hundred dollars, which Donovan refused, and Lang agreed to take two hundred and fifty dollars; Donovan wanted to know how he would take it, and Lang wanted cash, but after more talking agreed to take ten notes of twenty-five dollars each, xvhich Donovan agreed to give him ; that Donovan went out, and •after three quarters of an hour returned with ten notes, which he gave Lang, telling him that they were signed by Edward R. Donovan and indorsed by himself. The notes were for twenty-
It appeared from the testimony of Edward "R. Donovan, and was not controverted, that the signatures of E. R. Donovan upon the notes were not genuine: James C. Donovan did not testify, but Edward R. Donovan testified that he did not sign the notes, and both he and O’Connell testified that they had no knowledge that the notes were to be given or had been given until the next day, and that they had no communication with James C. Donovan from the time that they left Lang’s store in the forenoon until after James C. Donovan left Lang's store in the afternoon, and in this they were corroborated by other witnesses. O’Connell also testified that the next morning he went to see another councilman in behalf of Edward R. Donovan, and that he also tried to communicate by telephone with another councilman.
Lang also testified that he refused to sign an agreement presented to him by James C. Donovan that he would keep E. R. Donovan in office as city treasurer, and that he did not agree in terms to take any action or refrain from any action on accepting the notes.
Edward R. Donovan never accepted the office to which he had been appointed, never qualified therefor, and never assumed to act therein. The question of his removal never came before either branch of the city council; but a vote was passed by the city council on March 9,1897, that the mayor’s other appointees of February 19, each of whom had signified his acceptance of the office to which he was appointed, be removed.
O’Connell, who was then an attorney at law, testified that James C. Donovan went to his office and requested him, as a neighbor and friend, to use his influence with such aldermen and councilmen as he knew to argue and vote in the caucus against turning out the mayor’s appointees; and that he saw Alderman Derby and Councilman Scott. He also said, upon cross-examination, that he knew that the negative vote of a single Republican councilman upon the question of the removal of the mayor’s appointees would prevent the removal, and that it was a matter of common talk in the city.
1. The third allegation in O’Connell’s motion to quash, that the indictment does not allege sufficient facts to constitute a crime, and the first allegation in the motion of the other defendants, that the indictment does not set forth any offence known to the law or defined by the statutes, are insufficient to require us to consider formal defects x apparent upon the face of the indictment, because they do not specifically set forth the objections relied upon, if any such there were. Pub. Sts. c. 214, § 25. Commonwealth v. Murray, 135 Mass. 530. Commonwealth v. Schaffner, 146 Mass. 512. Commonwealth v. Lane, 157 Mass. 462. Commonwealth v. Dunleay, 157 Mass. 386. Commonwealth v. Langley, 169 Mass. 89.
2. The second allegation of the motion of the Donovans to quash the indictment avers that it is defective in not setting forth that the gift or gratuity was given contrary to the statutes. The statute as amended prohibits corruptly giving any gift or gratuity whatever to any municipal officer with a certain intent. The doing of the prohibited act is fully, directly, and expressly alleged by the indictment, and each count concludes with the averment that the acts charged were “ contrary to the form of the statute in such case made and provided.” No further, if any, reference to the statute was necessary. Commonwealth v. Hoye, 11 Gray, 462. Pub. Sts. c. 213, § 16.
3. The first and second averments of O’Connell’s motion to quash, and the fifth and sixth of the Donovans’ motion, are upon the ground that the indictment does not allege that Edward R. Donovan was in fact or in law city treasurer and collector of taxes, and that it does not appear by the indictment that he could be affected by any vote of the city council. At the trial the defendants also urged, in support of their motions to direct a verdict of not guilty, that it did not appear that the question of his removal was one which by law could come before Lang as a member of the common council, and that Donovan’s appointment on February 19, to take effect on April 1, was annulled by the passage of St. 1897, c. 95. One of the requests for rulings was also to the effect that, if Donovan had not
With respect to the question of proof, we are of opinion that the evidence justified a finding that the question of Donovan’s removal from the office was one which by law might .come before Lang in his official capacity as a member of the city council. The city treasurer and collector of taxes, by the provisions of the charter, was to be chosen annually. St. 1875, c. 173, § 17. It appears that the term of the incumbent who was in the office on February 19, 1897, was to expire on the first day of the next April. Before entering upon the duties, the person who is to fill the office is required to qualify, and give bonds which must be approved by the mayor and aldermen. Pub. Sts. e. 27, §§ 79, 105; c. 28, § 2. This implies that the election or appointment shall be made a convenient time before the person chosen to the office is to assume its duties. Besides this, the section of the charter above cited, which empowered the city council to elect the city treasurer and collector of taxes annually in convention by joint ballot, directed that it should be done as soon after their organization as might be convenient, and the meetings for organization are directed to be held on the first Monday of January, on which day the municipal year begins. St. 1875, c. 173, §§ 3, 11. By a sufficiently plain implication, the mayor, who assumes his office on the same day, when the power of filling the office was transferred to him by
Upon a narrower view of the effect of the mayor’s appointment, and without going so far as we have gone in holding the appointment valid, as the St. 1897, c. 95, speaks only in the future, not attempting to revise the construction placed upon St. 1896, c. 415, § 1, but merely to retransfer to the city council the power of election or appointment of city officers, Donovan, under the mayor’s appointment of February 19, had at least a color of right to the office, which, under the decision in Attorney General v. Cahill, ubi supra, a vote of removal by the city council would be effectual to annul. Such a vote would have a substantial effect upon Donovan’s relation to the office, and in this view, even if the appointment did not give him a clear right to the office, the question whether such a vote should be adopted was one which, within the meaning of the statutes, by law might come before Lang in his official capacity as a member of the council, and the decision of which might affect Donovan’s relation to the office, whether the appointment was valid or not.
4. The remaining averment of O’Connell’s motion to quash relates only to the third count, upon which there was a verdict of not guilty, and the question raised by it has not been argued, and for these reasons need not be considered.
5. The third averment of the Donovans’ motion to quash, that the indictment is defective in that it does not state that anything of value was given to Lang, is as a matter of pleading plainly untrue, as the indictment alleges that ten promissory notes each of the value of twenty-five dollars were given to him.
6. The objection taken by the fourth averment of the same motion, that the indictment is defective in not stating by whom the promissory notes charged to have been given to Lang were made, is unsound. The indictment charges the gift of promis
7. The remaining averment of the same motion is to the effect that no offence is set forth as committed by the persons charged as accessories, because no offence is charged to which they could be accessory. Of this it is enough to say that, as matter of pleading, the indictment well charges the offence of corruptly giving to a municipal officer a gift to influence his action upon a question which by law might come before him in his official capacity.
8. The defendants contend that their conviction was wrong, because upon the evidence the notes alleged to have been given as a bribe were without consideration and void, and so of no value, and that it appeared that nothing of value was given. So far as this defence was hinted at in the motions to quash, it has already been considered. But it was distinctly raised upon the motions to order verdicts of not guilty, which were denied under exception, and in the requests for ruling or instructions to the jury and the exceptions to the charge. Assuming in favor of the defendants, without so deciding, that under our statutes it is essential for the prosecution to show that the gift or gratuity corruptly given is a thing of value, the question is whether upon the evidence the notes given in this instance were of value.
They were given only upon an illegal consideration, and could not be enforced by Lang against either of the promisors, if they should see fit to defend upon that ground. Edward R. Donovan, whose signature purported to be upon the face of the notes as maker, testified that he did not sign them; but if, as the jury might find from the evidence, he procured and incited and aided his brother to utter the notes as a gift -to Lang, he might be as much bound by the actual signatures as if they were written by his own hand. Whether Edward R. Donovan was or was not in a position to contest the genuineness of his signatures, James C. Donovan himself signed his own name upon the back of each note before its delivery to Lang, and so stood as an original promisor upon each note. The notes were in form negotiable,
There is no statute declaring such notes void, as in the case of notes for money lost at gaming, and in Massachusetts the general rule is that one who takes a negotiable note for value in good faith before maturity, and without notice of any taint, may recover upon it notwithstanding the consideration was illegal. See Williams v. Cheney, 3 Gray, 215; Cazet v. Field, 9 Gray, 329; Taylor v. Page, 6 Allen, 86. The defendants rely upon the case of State v. Walls, 54 Ind. 561, where such a note was held absolutely void, but that our law is otherwise follows from the cases cited.
9. The defendant O’Connell contends that there was not sufficient evidence to warrant the jury in bringing in a verdict against him, and that a verdict of not guilty as to him should have been ordered; and he urges that there was no evidence connecting him with James C. Donovan, and no evidence of anything that he, O’Connell, did or said after leaving Lang’s store in the forenoon, until the next day, when he tried to influence other councilmen, which he contends shows that he was not a party
The difficulty with this contention is that the jury were the judges of the evidence, and might believe or disbelieve so much of it as they saw fit. If they found it to be true that O’Connell, upon receiving from Lang at their first interview a plain intimation that Lang’s assistance was to be obtained only upon a bribe, replied that that was all right, and arranged for another interview, at which Lang said distinctly that it would take a good deal of money to buy him, and that upon the assent of Edward R. Donovan to this proposition O’Connell took part in arranging for the interview between Lang and James C. Donovan, at which the amount and nature of the bribe were settled upon on the same afternoon, it might be a fair inference that O’Connell aided and counselled the whole transaction, especially if the jury, as they might, disbelieved his testimony, and that of the witnesses who corroborated it, to the effect that he had no communication with James C. Donovan, and did not know until the next day that the notes were to be given or had been given. The whole evidence was for the jury, and there are views of it on which the inference of O’Connell’s guilt is not unreasonable.
10. No argument has been addressed to us upon several of the instructions requested and refused. It clearly was not necessary for the government to show that Lang in accepting the gift made any promise as to his future action or vote. See Commonwealth v. Murray, 135 Mass. 530. Nor was it a defence that James C. Donovan gave the notes believing them to be worthless. The instructions given upon the phase of the case presented by the contention that the transaction was a trap laid for the defendants were full and correct, and none of the defendants have argued their exceptions to them, or to the refusal to give in terms their requests addressed to the same aspect of the case. The same is to be said as to the request as to the weight to be given to the testimony of Lang.
This is not the true view of the situation. The verdict of not guilty upon the second count does not establish it as a fact that the jury found that the gift was not made to influence Lang to vote “ Nay ” on the question of removal^ but only that the charge made with that particularity was not proven. And so of the verdict of not guilty upon the third count, which alleged as another particular that the gift was to influence Lang to refrain from voting. That the proof did not satisfy the jury of either of these particulars is not inconsistent with its satisfying the jury that the gift was corruptly given to influence Lang’s vote upon the question of removal, which is the offence prohibited by the statutes, and the whole offence charged in terms by the first count.
The result is, that we find no error in the action of the Superior Court as brought here either by the appeals or the bills of exceptions, and that the orders of that court overruling the defendants’ motions, so far as appealed from, are affirmed, and the defendants’ exceptions are overruled.
So ordered.