Thе indictment charges that the defendant, “on or about” November 30, 1937, at Lawrence, “being an executive officer of the city of Lawrence, to wit: the commissioner of soldiers relief, did corruptly request and accept a gift and gratuity and a promise to make a gift and to do an act beneficial to him, the said Robert M. Dowe, to wit: a sum of money and credit to the amount and value of eighty dollars ($80.00), under an agreement and with an understanding that his, the said Robert M. Dowe [sic], vote, opinion and judgment should be given in a particular manner and upon a particular side of a question, cause and proceeding which was then pending and which might by law come and be brought before him, the said Robert M. Dowe, in his official capacity as commissioner of soldiers relief of the city of Lawrence.”
The statute (G. L. [Ter. Ed.] c. 268, § 8) makes “a legislative, executive, judicial, county or municipal officer” punishable 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.”
The defendant, on April 30, 1942, excepted to the denial of his motion to quash the indictment. No bill of exceptions was filed until May 8,1942, after he had been tried and found
The only exception before us is the onе taken to the denial of a directed verdict of not guilty. The grounds specified in that motion (Beebe v. Randall,
1. The indictment charged the defendant with accepting as a gift and gratuity a sum of money “and” credit. The defendant contends that there is a variance, for the proof showed that a credit, but no money, was accepted. This contention ignores an elementary rule of criminal pleading. It was not necessary to prove the acceptance of both money and crеdit. Where a crime can be committed in any one of several ways, an indictment properly charges its commission
It is not argued that a credit against indebtedness could not be found to be a “gift or gratuity” having sufficient value to constitute a bribe. Commonwealth v. Hayes,
2. There was evidence that the credit was given and accepted on or about November 30,1937, upon a corrupt agreement or understanding as alleged. The defendant had been commissioner of soldiers’ relief of Lawrence since April 16, 1928. In his official capacity he furnished shoes to needy persons at the expense of the city. The question from what dealer they were to be bought was constantly pending before him as commissioner. Commonwealth v. Lapham,
The defendant took many shoes from Sandler’s store for his personal use, and never paid for them. When Sandler asked for pay, the defendant refused, saying, “You are making plenty” and “you have got to put something through.”
The relations between the defendant and Sandler had long been corrupt. The jury could infer an understanding that Sandler was to continue to receive the soldiers’ relief shoe business from the defendаnt. That understanding need not have been expressed in words.
3. The defendant could have been found to be “an executive officer of the city of Lawrence,” as charged in the indictment.
The first mention we find of a commissioner of soldiers’ rеlief is in St. 1897, c. 441,
The present, statute is G. L. (Ter. Ed.) c. 115. A recipient of State aid must live in the town (including city, G. L. [Ter. Ed.] c. 4, § 7, Thirty-fourth) furnishing aid. § 6. The statute, by using the phrase “if there is no such commissioner,” implies that it is optional with a municipality to have one or not. § 15, as amended by St. 1932, c. 106. But the possible existence of such an officer is contemplated. §§ 3,12,15,17,19. The commissioner of State aid and pensions, a State officer, is given certain powers to override a local commissionеr of soldiers’ relief and other local authorities. §§ 5, 15.
The defendant, in our opinion, was a public officer and not a mere employee. Attorney General v. Tillinghast,
Was he a “municipal officer” as distinguished from a State officer? In a certain sense, all publiс officers are officers of the Commonwealth, for from it directly or indirectly they derive their powers. Opinion of the Justices,
It does not follow that such officers are State officers, and nоt “municipal” officers, within the meaning of the statute as to bribery. For example, it has been said of assessors that they “are not State officers in the ordinary sense of the term.” Hobart v. Commissioner of Corporations & Taxation,
The defendant relies upon the statement made arguendo in McDonald v. Superior Court,
The defendant held an office created by municipal ordinance. He was chosen by officers of the city. His duties were restricted to the city. He was paid by the city. In our opinion he was not in any ordinary sense an officer of the Commonwealth as distinguished from a municipality. Commonwealth v. Connolly,
We think that the words “executive . . . officer” in the statute refer to an officer of the executive branch of the State government, and not to a municipal officer having executive duties. The words “executive officer of the city of Lawrence,” used in the indictment, mean a “municipal officer” of Lawrence whose duties are declared, though unnecessarily, to be executive in nature. Without doubt that unnecessary allegation was true. Attorney General v. Trehy,
Exceptions overruled.
Notes
We take judicial notice of that statute on the theory that in effect it was an amendment of the charter or act of incorporation of the city of Boston. G. L. (Ter. Ed.) c. 233, § 74. Brodsky v. Fine,