COMMONWEALTH vs. FRANK S. GILES
Supreme Judicial Court of Massachusetts
Suffolk. October 3, 1966. — June 22, 1967.
353 Mass. 1
Present: WILKINS, C.J., SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, & REARDON, JJ.
At the trial of an indictment for perjury in that the Massachusetts Crime Commission asked the defendant at a hearing whether he had “any connection with” a named corporation and that he falsely answered “that he had no personal or financial connection with” it, subsequent disclosures to the commission by him in his testimony of various “connections” he had had with the corporation must be considered in appraising his original answer. [11-12]
Where it appeared that a public official testifying before the Massachusetts Crime Commission was asked whether he had any “connection with” a certain corporation and answered that he had no personal or financial connection with” it, that his later disclosures to the commission in his testimony left ambiguous what he meant by “connection,” whether he used that word in its ordinary, broad sense or in a limited sense as meaning possession of a “financial or proprietary interest,” and how he meant to leave his testimony as a whole, and that clarification of the meaning of his answer was not developed by further questions by the commission, it was held that the answer, when read with the disclosures,
Evidence at the trial of an indictment for perjury warranted findings that the defendant, while testifying before the Massachusetts Crime Commission, was asked by the commission whether he “had ever received any amounts of money from” a certain corporation and answered that he had “never received a salary or commission or money from” the corporation, that his answer together with his later disclosures to the commission amounted to a statement that he had not received “moneys” either directly or indirectly from the corporation, and that there were payments of its money which went to the defendant or for his benefit and so such statement was false, but doubt created by the judge‘s granting of the defendant‘s request for a ruling that on the evidence he “would have perjured himself had he stated that he had received moneys from” the corporation required that a judgment against the defendant be reversed and a finding of guilty be set aside. [17-18] KIRK & SPIEGEL, JJ., thought that judgment for the defendant should have been ordered.
In perjury cases the defendant ordinarily should be furnished in advance of trial a copy of what he himself has said in the testimony alleged to have been false, without the necessity of his showing any “particularized need.” [19] KIRK & SPIEGEL, JJ., were of the opinion that the defendant in a perjury case is entitled as of right in advance of trial to a complete transcript of his testimony before the tribunal where the perjury was alleged to have occurred.
In the circumstances, an inquiry by the Massachusetts Crime Commission, created by Res. 1962, c. 146, as an investigative body, of a former member of the General Court, who testified before the commission after requesting an opportunity to explain to the commission his relationship with a certain engineering corporation under commission investigation, as to whether he “had ever received any amounts of money from” the corporation, to which he gave an allegedly false answer, was relevant to the investigation authorized to be made by the commission; the inquiry was not improper merely because the commission might have had in its possession substantial information about the matter and the witness prior to the hearing at which he testified. [19-20] KIRK & SPIEGEL, JJ., dissenting.
The so called “two witness” rule had no applicability at the trial of an indictment for perjury at which a number of witnesses testified about relevant circumstances and there was documentary material bearing upon the truth of what the defendant had said. [20]
There was no prejudice to a defendant, indicted in Suffolk County for perjury there before the Massachusetts Crime Commission, in the denial of a motion to transfer the trial to Essex County, where indictments against the defendant related to the alleged perjury were pending. [20]
A motion for change of place of trial was denied by Goldberg, J.
The case was heard without jury by Smith, J.
Donald J. Cregg (Frederick W. Murdock, Jr., with him) for the defendant.
Samuel Hoar, Jr., Special Assistant Attorney General (Warren K. Kaplan, Assistant Attorney General, with him), for the Commonwealth.
CUTTER, J. A Superior Court judge, sitting without a jury, found the defendant guilty on an indictment in two counts alleging perjury before the Crime Commission (Res. 1962, c. 146). He imposed a sentence to the House of Correction and a fine on the first count and a concurrent sentence to the House of Correction on the second count. The case has been before us once before on certain issues of law. Commonwealth v. Giles, 350 Mass. 102, 113, (“the first Giles case“).1
The complete stenographic transcript of the trial (held under
THE INDICTMENT.
The indictment may be summarized as follows (emphasis supplied). Count 1 charged that before the commission “the question was asked in substance and effect whether ... Giles had any connection with ... Nessex Engineering Company (Nessex) in the period of time since it was formed to the present and to this ... Giles did willfully ... testify ... in substance ... that he had no personal or financial connection with Nessex ... well-knowing that
THE 1964 HEARING.
On October 11, 1963, the commission‘s counsel by letter gave the defendant an “opportunity to appear voluntarily at a hearing” concerning Nessex and Stuart Engineering Company (Stuart). Giles, after consulting counsel, did not appear.
Later Giles talked with the Attorney General. As a result, he received a letter dated January 31, 1964, from the Attorney General enclosing a copy of a letter of the same date from the commission‘s chairman to the Attorney General, which began (emphasis supplied), “You told me yesterday that Commissioner Giles has requested an opportunity to explain to the Crime Commission his activities with respect to the survey companies that the Commission has investigated. The Commission will arrange a hearing at which he may appear voluntarily.”2
On February 5, 1964, the defendant (against the advice of his counsel) appeared voluntarily before the Crime Commission. His counsel accompanied him. He was warned of his constitutional rights, was sworn, and was told that the commission had “been conducting an investigation of ... Nessex ... [and] Stuart.” He was then given an
The following questions were asked and answers given (emphasis supplied). Q. “With reference to Nessex ... I wonder if you could tell us what your connection with that company was, if any, in the period of time since it was formed to the present?” A. “I have had no personal or financial connection with Nessex ... from the day it was formed to the present.” Q. “Have you had any communications or dealings of any nature with Nessex ...?” A. (conference with counsel) “I have not personally, no, not as an individual, no.”
At a later stage in the hearing, the defendant was asked (emphasis supplied): Q. “At any point between the formation of Nessex and the present time, did you receive any amounts of money from Nessex? A. I have never received a salary or commission or money from Nessex for any other purpose other than a loan which I have received ... from Nessex.” This answer (p. 33 of commission hearing transcript) should be read with a subsequent answer (p. 65 — emphasis supplied): Q. “... is [it] your feeling that at no time did you indirectly get any funds from Nessex ...?” A. “That is absolutely so.”4 The de-
Apart from the answers mentioned above, Giles in answer to specific questions by the commission‘s counsel, made statements disclosing certain relations with Nessex. A summary of the principal points in these statements follows.
“[A]s an individual and as a member of the General Court,” the defendant had shared with Nessex an office in Lawrence “where ... [he] met ... constituents.” The defendant paid rent to Nessex. The then president of Nessex, one MacLeod, had formerly worked for the defendant at a drive-in theatre. He had started selling candy and became manager. MacLeod at some time left Nessex. The defendant left the theatre in 1957, and thereafter, apart from his service with the Commonwealth (as a member of the Legislature from 1947 to 1961 and later as Commissioner of Public Safety), was employed only by Stuart. Before Nessex was incorporated (July, 1954), the defendant talked with persons later connected with Nessex, including MacLeod, about whether the defendant “could be of any value ... in getting some work from the Commonwealth.” Later the defendant investigated this possibility with the Commissioner of Public Works, who referred him to the Supervisor of Surveys. As representative, he discussed the payment of bills owed by the State to Nessex with a man in the Department of Public Works. Nessex once had offices in premises in Methuen which the defendant had sold to Nessex.
Mrs. Giles, for less than a year prior to her marriage in 1956 to the defendant, had worked for Nessex. She continued to do so until 1958. The defendant‘s son “was
The defendant said Stuart was formed because his son (who became “qualified to go out on his own“) did not get on with MacLeod and because Stuart wanted to do work for “more specialized people” than the State at higher rates than the State would pay. The defendant described Stuart as “my family corporation.” It was formed in 1957 by his son (a registered engineer), his wife, and one Stramondo. Since 1957 the defendant had been “affiliated with that company ... and ... on and off the payroll.” Stuart, he said, “performed independent surveys ... did subcontract work and rented men and equipment to other survey companies ... and carried on a general survey ... [and] civil engineering business.” He never had owned stock in Stuart, and had “no actual control over Stuart.”
Stuart first had an office in Lawrence, but later moved its office to the defendant‘s house in Methuen. Stuart never performed any work for any State agency (but the defendant said that he did not regard Massachusetts Turnpike Authority as a State agency). Stuart did furnish Nessex, on a per diem basis, men, transportation, and survey equipment. Employees of Nessex worked for Stuart and vice versa. These services were paid for by “billings between the two companies every two weeks or every month.” One Brennan, who took over the Newton office of Stuart, carried on surveys of Massachusetts great ponds (see
THE EVIDENCE BEFORE THE TRIAL JUDGE.
At the outset of the trial of the indictment (which lasted from February 1 through 9, 1965) the Commonwealth introduced the whole stenographic transcript (eighty-eight pages) of the 1964 hearing before the commission. There was evidence of those facts about Nessex and Stuart, already summarized above, which Giles had disclosed to the commission in 1964 in answer to questions by the commission‘s counsel.5 There also was testimony6 on matters
An accountant, who had examined the records of Nessex, Stuart, Massachusetts Turnpike Authority, the Metropolitan District Commission, and the Department of Public Works testified (i) that, from January 1, 1958, to June 30, 1962, Nessex received from the Commonwealth and the Turnpike Authority a total of $285,522.59, more than sixty-eight per cent of Nessex‘s gross receipts for the period,8 and paid to Stuart (for the use of survey teams furnished by it to Nessex) $126,646.28; and (ii) that, from January 1, 1958, to October 31, 1962, Stuart paid the defendant in wages and bonuses $47,625 (bonus total $21,500) and paid Mrs. Giles $17,545 (wages $15,545, bonus $2,000). Nessex paid her $5,300. For a day‘s work by a four-man survey party Nessex would receive from the State “pretty close to $100.” Stuart would charge Nessex for such a party about $90. The daily payroll of Stuart for such a party would be about $65 to $70, exclusive of other expenses incurred by
The foregoing figures indicate that Nessex had other business. Doubtless, its officers and its employees (as did Mrs. Giles) received compensation. Stuart (see fn. 8) had a substantial gross income other than that from survey parties furnished to Nessex. Presumably part of the compensation paid by Stuart to Giles and his wife was attributable to that other business. We assume that Stuart had expenses for travel, equipment, insurance, and other operating costs. Nevertheless, the figures just summarized, permitted an inference that a significant part of the receipts from Nessex‘s large business with the Commonwealth had indirectly gone through Stuart to the defendant and his wife. On the other other evidence already mentioned (fns. 6, 7), it could be concluded that the defendant had a close relation with Nessex, had actively participated in various aspects of its business, had exercised influence upon it, and had received the benefits of certain Nessex expenditures.
1. We first discuss the judge‘s denial (a) of the defendant‘s motion for a finding of not guilty on each count, and (b) of rulings that the Commonwealth had not proved its case under either count.
(1) After Giles gave his original general answer that he had “no personal or financial connection with Nessex,” the character of the hearing (with respect to Giles’ “connection” with Nessex) became one in which, for the most part, specific information was sought by more specific questions. The principal issue with respect to count 1 relates to the effect, if any, upon his original answer, to be given to Giles’ subsequent disclosure (in answer to specific questions) to the commission of various “connections” with Nessex (see fn. 4, and related text).
The judge ruled that Giles’ answers “must be read and construed in light of all the related testimony offered by the defendant ... [and] of the direction of the particular questions asked ... by the” commission. That ruling was correct. Despite possible implications of cases like United States v. Norris, 300 U. S. 564, 576 (see fn. 10, infra), in these circumstances it would be unfair to view Giles’ original answer in isolation from his later disclosures. See e.g. Meyers v. United States, 171 F. 2d 800, 805-807 (Ct. App. D. C.), where it was said that a “statement may not be isolated and thereby given a meaning wholly different from the clear significance of the testimony considered as a whole.” See also Fotie v. United States, 137 F. 2d 831, 840-842 (8th Cir.); Conrad v. United States, 255 F. 2d 247, 248-251 (5th Cir.). Cf. Van Liew v. United States, 321 F. 2d 674, 677-683 (5th Cir.). Giles’ subsequent disclosures were given to the commission as a part of one examination during continuous testimony. His original answer should be appraised, we think, after fair consideration of what he later disclosed.
Consistently with his ruling, it was open to the trial judge to consider the effect (by way of interpretation, explanation, qualification, or retraction) upon Giles’ original answer of his subsequent disclosures. The judge was bound to take those disclosures into account (a) in determining what Giles meant by his original answer and in deciding
(2) The words, used in the original answer to the general question referred to in count 1, ordinarily have a broad and inclusive meaning (as Giles in his brief essentially concedes in passages quoted below). Looking at the original question and answer wholly apart from the later disclosures, a majority of the court are of opinion that the trial judge, as trier of the fact, would have been warranted in deciding that Giles intentionally used “connection” in its ordinary, broad sense. It was his function to determine, within reasonable limits, what Giles meant by his answers. United States v. Marchisio, 344 F. 2d 653, 661-662 (2d Cir.), and cases cited. See Commonwealth v. Bessette, 345 Mass. 358, 360-361.
Nothing in the question or Giles’ original answer (that he had no personal or financial “connection” with Nessex), viewed by themselves, suggested that “connection” was limited to the possession of a financial or proprietary “interest.”9 Indeed, almost immediately after the original answer Giles told the commission that he had not personally had “any communications or dealings of any nature with Nessex,” thus interpreting in some degree his original answer. Giles was not shown to have had any direct property or ownership in Nessex or its capital stock. There was little direct evidence about the nature of Giles’ then current and past relations and contacts with the officers, directors, and stockholders of Nessex (except for MacLeod and for Mahoney, see fn. 6) or about their activities or the extent of their respective investments in Nessex or the necessity of any large investment in a company of this type. Nevertheless, the evidence (see fns. 6, 7, and related text) permitted the judge to conclude that Giles had a very substantial connection with Nessex and participated in and
(3) When Giles’ original answer is considered, not by itself, but with his later testimony before the commission, there is apparent a substantial inconsistency between the broad ordinary meaning of “no personal or financial connection” and what Giles did disclose to the commission. These later disclosures by no means covered all Giles’ relations with, and actions in behalf of, Nessex which could have been found to have existed on the evidence at the trial. See fns. 6, 7, and related text. Nevertheless, he did disclose a variety of dealings between Nessex and him, both individually and as representing Stuart.
Giles before the commission did not purport to make any express retraction of his original answer, if in fact he intended in that answer (which adopted “connection,” the word used by the commission‘s counsel in his question) to use the term “no personal or financial connection” in a broad sense. The Commonwealth, indeed, does not appear to argue that the later disclosures were an insufficient attempt to retract an original false answer. Accordingly, we proceed to consider whether Giles’ later disclosures show that he did not intend by his original answer the usual broad meaning of “no personal or financial connection.”
The Commonwealth correctly concedes that the test is “a subjective one” (i.e. what Giles in good faith and in fact did mean, as reasonably “inferred” by the trier of the fact “from all the ... circumstances, including the commonly accepted meaning of the words used in the question and answer“). The judge correctly gave rulings to the effect that, if Giles believed what he said to be the truth or was10
As Giles contends in his brief, his commission testimony “is replete with statements ... [of] what would be considered ‘personal connections’ within the ordinary meaning of that phrase.” From this he argues that “this type of testimony makes it self-evident ... when he used the word ‘personal’ he was thinking of that term as something distinct from its normal meaning.” Giles at his trial testified that when he went before the commission he “was of the opinion, from all the evidence ... [he] had ... that the ... [c]ommission‘s intent was to prove that ... [he] had violated a conflict-of-interest law.”11 His position is that the circumstances, including the “conflict-of-interest law, and his counsel‘s advice relative to the meaning of the phrase ‘personally interested’ ” led him to use his words as
The striking inconsistency between the ordinary meaning of Giles’ original answer and his later disclosures leaves what Giles did mean by his original answer, or how he meant to leave his testimony as a whole, significantly ambiguous. Certainly, the inconsistency made appropriate further specific questions to Giles before the commission. The absence of any clarification by further questions gives color to Giles’ argument, already summarized, that in his original answer he was saying in effect that he had no stock ownership or direct financial interest in Nessex.
Giles’ original answer as affected by the later disclosures was permitted to remain ambiguous and confused. Because of that ambiguity it is difficult to say either (a) that Giles intended the answer to have the special meaning for which he now contends, or (b) that it had any other sufficiently definite and certain meaning which would provide an adequate basis for finding it to have been false.
A conviction for perjury must be based upon proof beyond a reasonable doubt of the intentional falsity of an answer susceptible of a reasonably ascertainable meaning. We have come to the conclusion that the original answer, when read with the subsequent disclosures, was too ambiguous (a) to permit the trial judge, beyond a reasonable doubt, to attribute definite meaning to it under the principles of the Marchisio case, 344 F. 2d 653, 661-662, or (b) to support a conviction for perjury on count 1. See United States v. Lattimore, 215 F. 2d 847 (Ct. App. D. C.), S.C. 127 F. Supp. 405, 408-411 (D. D.C.), affd. by an evenly divided court, 232 F. 2d 334 (Ct. App. D. C.); United States v. Diogo, 320 F. 2d 898, 905-907 (2d Cir.). See also United States v. Rose, 215 F. 2d 617, 622-623 (3d Cir.); Conrad v. United States, 255 F. 2d 247, 248-252 (5th Cir.); Blumenfield v. United States, 306 F. 2d 892, 899-902 (8th Cir.).
Giles, a public official who had asked for a chance to ex-
The judgment on the first count is reversed and judgment is to be entered for the defendant on that count.
B. THE SECOND COUNT.
As with the answer referred to in the first count, Giles’ original answer alleged in the second count (“I have never received a salary or commission or money from Nessex for any other purpose ... than a loan“) must be read in the light of his subsequent answers. These include his answer already mentioned given some time later in his testimony (see fn. 4 and related text) agreeing that it was his “feeling that at no time did ... [he] indirectly get any funds from Nessex” (emphasis supplied). That answer tended to indicate what he meant by the original answer.
We recognize, of course, that Giles, in his later disclosures to the commission, in general terms did describe the Nessex-Stuart intercompany payments for work parties and the sale of the Methuen real estate (fn. 5). Also, even if the aggregate amounts and details of the intercompany payments were not set out in the Stuart records (placed by Giles’ counsel at the commission‘s disposal), this information could have been, and later was, ascertained by an audit of Stuart‘s records. To discover the significance of the Nessex-Stuart payments as a percentage of Nessex‘s gross receipts from State business, of course, required consultation of the Nessex books. A majority of the court, how-
The evidence warranted the judge in concluding that there were Nessex payments of moneys which, in whole or part, very directly went to Giles or for his benefit, for example, the payment of expenses, club bills, and contributions of Giles or members of his family, fn. 6, Item (b), and the receipt of money for the discount on Nessex‘s new automobile. See fn. 6, Item (d). Also the evidence concerning the Nessex-Stuart business and financial relationship and the extent to which Giles could be found to have participated in and influenced Nessex‘s affairs (fns. 6, 7), was relevant to determine the nature and purpose of the intercompany payments. This evidence permitted inferences substantially at variance with the absence of indirect payments or benefits. In the opinion of a majority of the court, on a reasonable interpretation, the question and original answer referred to in the second count (even viewed in the light of Giles’ later disclosures to the commission) could be found to amount to a statement that he had not received “moneys” either directly or indirectly from Nessex. That answer could have been found to have been false.
The judge‘s general finding of guilty on count 2 must, however, be tested by his action on the relevant rulings among those12 requested by Giles.13 Requested rulings
2. It was ordered (by a judge other than the trial judge) that Giles be given in advance of trial all his own testimony before the commission which concerned Nessex, and the “specific testimony furnished and all questions asked of ... [Giles] by the ... [c]ommission upon which this indictment ... is based.” There is no present occasion to consider whether the failure to furnish the whole commission transcript was error, for it was put in evidence on February 1, 1965, at the beginning of the trial. Giles will have had it for over two years prior to any new trial on count 2.
Although our prior authorities did not require this type of discovery in a criminal case (see Commonwealth v. Ries, 337 Mass. 565, 583; cf. Commonwealth v. Balliro, 349 Mass. 505, 518), substantial authority supports affording, in ad-
3. Although some assignments of error have become immaterial because of our disposition of count 1, certain assignments must be dealt with to avoid questions on a retrial of count 2.
(a) There was evidence (a) that contracts had been awarded by State agencies to Nessex; (b) that Nessex had obtained a very large number of survey teams from Stuart; (c) that the defendant, while a member of the General Court, had helped to obtain contracts for Nessex; and (d) that he had been on Stuart‘s payroll. Before the commission, Giles did not object to or refuse to answer any question as not relevant to the commission‘s investigation. In the opinion of a majority of the court, the inquiries made were relevant to the commission‘s general legislative investigation under Res. 1962, c. 146, in respects discussed in the first Giles case, 350 Mass. 102, 111-112. This view is supported by the evidence just summarized, by the possible relevance to the Nessex-Stuart transactions of
(b) The inquiry, in the opinion of a majority of the court, was not improper merely because the commission may have had in its possession substantial information about Nessex, Stuart, and Giles prior to the hearing, which (see fn. 2 and
A majority of the court are also of opinion that, on the present record, United States v. Icardi, 140 F. Supp. 383, 388-389 (D. D.C.), is not here applicable, even if it be assumed (a matter we need not decide) that we would follow that lower court decision upon precisely similar facts. Cf. United States v. Winter, 348 F. 2d 204, 210-211 (2d Cir.), cert. den. 382 U. S. 955.
(c) The judge was not required to rule that, if only one credible witness testified in direct conflict with Giles, the latter could not be convicted without strong corroborative evidence. The so called “two witness” rule has no applicability. A number of witnesses testified about relevant circumstances, and there was documentary material, all bearing upon the truth of what Giles said. See Perkins, Criminal Law, 393. See also Commonwealth v. Gale, 317 Mass. 274, 277-278; Commonwealth v. Fine, 321 Mass. 299, 302-303.
(d) Giles was not prejudiced by the refusal to transfer this trial before a judge, sitting without a jury, to Essex County where related indictments were pending. See
Crocker v. Superior Court, 208 Mass. 162, 180. See also Commonwealth v. Bonomi, 335 Mass. 327, 333.
(e) Other assignments now require no comment.
4. On the first count, the judgment is reversed and the finding of guilty is set aside. Judgment for the defendant on the first count is to be entered. On the second count, the judgment is reversed and the finding of guilty is set aside.
So ordered.
KIRK, J. (dissenting) Mr. Justice Spiegel and I reaffirm the view expressed in our dissent in the first Giles case (350 Mass. 102, 113) that the indictment brought under the second clause of the first sentence of
On the present appeal, our positions are, in summary: (a) We agree with the majority that judgment should be entered for Giles on count 1, but we are not in accord with the majority‘s reasoning in reaching the result. (b) We agree with the majority that a person accused of perjury is entitled before trial to a complete copy of his testimony on which the accusation is based, but we believe that the state-ment by the majority does not go far enough. (c) We agree with the majority that the judgment on count 2 should be reversed, but we believe that justice requires that judg-ment be entered for Giles on count 2. (d) We believe that there are errors which permeate the indictment as a whole and require that judgment be entered for Giles on both counts.
1. Because it is quite unlikely that the circumstances at-tending this case will again come to pass, we think it would
2. The majority have declared that in perjury cases, “hereafter, the defendant ordinarily should be furnished in advance of trial a copy of what he himself has said in the testimony alleged to have been false, without the necessity of his showing any ‘particularized need.’ See Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395, 400” (emphasis supplied). Our position is that a person charged with perjury, whether it be before a grand jury or crime commission or other body, is entitled as of right to a com-plete transcript of his own testimony before the tribunal where the perjury allegedly occurred, sufficiently in ad-vance of trial to enable him to prepare his defence. This is the Federal rule. Dennis v. United States, 384 U. S. 855. United States v. Remington, 191 F. 2d 246 (2d Cir.). United States v. Rose, 215 F. 2d 617 (3d Cir.). United States v. White, 104 F. Supp. 120 (D. N.J.). It represents the current weight of judicial authority among those States where the subject is not explicitly covered by statute. Minton v. State, 113 So. 2d 361 (Fla.). See Gordon v. State, 104 So. 2d 524 (Fla.); State v. Moffa, 36 N. J. 219; State v. Clement, 40 N. J. 139; People v. Kresel, 142 Misc. (N. Y.) 88; People v. Golly, 43 Misc. 2d (N. Y.) 122. For State statutory provisions, see Am. Law Inst. Code of Criminal Procedure, § 150, and commentary, pp. 436-437 (Tent, draft No. 1, 1928). The issue has not been presented or passed upon in our prior decisions. Now that it is squarely pre-sented, we think elementary considerations of justice re-quire that the prevailing rule be adopted without reserva-tion or qualification.
3. Although the majority have reversed the judgment on count 2 of the indictment, they have not ordered judgment for the defendant on the count. Giles is subject to retrial. We are of opinion that there was error (assignment 76) in the denial of Giles’ request that the offence charged had not been proved, and that he is entitled to judgment on count 2. In addition, because Giles is now subject to re-
a. The offence charged was that Giles, in response to the question “whether . . . [he] had ever received any amounts of money from Nessex . . . ,” wilfully and cor-ruptly testified “that he had never received a salary or com-mission or money from Nessex for any other purpose other than a loan” (emphasis supplied). The trial judge quite rightly granted Giles’ requested ruling (12) that the ques-tion “must be narrowly construed to mean that Nessex Engineering must have turned over its moneys to Mr. Giles” (emphasis added). The majority do not dispute the appropriateness of the ruling. The ruling means that Giles could not be found guilty on count 2 unless there was proof beyond a reasonable doubt that he had, in fact, re-ceived money from Nessex.
An examination of the judge‘s ruling giving request no. 33 shows unequivocally that he found that Giles had not received any money from Nessex. The judge ruled that ”[o]n the evidence of this case . . . Giles while testifying under oath would have perjured himself had he stated that he had received moneys from Nessex Engineering” (em-phasis added). The judge‘s ruling (request no. 33) is ir-reconcilable with his finding of guilt. The two are mutu-ally exclusive and cannot stand together. When the judge‘s finding of guilt is tested by his ruling (request no. 33), the finding of guilt is plainly wrong. The ruling shows that the Commonwealth has failed to prove beyond a reasonable doubt a necessary element of the crime charged. Giles is therefore entitled to judgment. He should not again be subject to trial for the same alleged crime.
b. Having shown that the judge‘s rulings require a find-ing of not guilty, and, consequently, the entry of judgment for Giles on count 2, we turn to examine the reasoning by which the majority conclude that judgment should not be entered for Giles.
(i) The first conclusion which the majority reach is that
More important than the fact that the word “benefits” in context is too ambiguous to support a conviction is the fact that the indictment does not charge Giles with wilfully and corruptly testifying that he did not receive “benefits” from Nessex. In criminal law where certainty in pleading is a requirement (Commonwealth v. Dowe, 315 Mass. 217, 220) the word “benefits” cannot be deemed the equivalent of “money.” That the majority intend the word “bene-fits” to mean something other than money is evident from the fact that they do not rely upon the word “money” to prove the offence charged in the indictment. Indeed, the majority seem to concede that the evidence would not sup-port a finding that Giles had, in fact, received money from Nessex. Neither this court nor the Superior Court can trifle with an indictment as returned by the grand jury and substitute for or add to the word “money” the word “bene-fits” unless there has been compliance with
By predicating Giles’ guilt upon the term “benefits” the majority have created a situation where the offence has
(ii) In determining that judgment should not be entered for Giles on count 2, the majority purport to test the judge‘s finding of guilt by his actions on requested rulings, and they conclude that they are “sufficiently uncertain how the judge instructed himself on the second count to cause . . . [them] to reverse the judgment on that count” but not to enter judgment for Giles. What leads the majority to deny judgment for Giles is that they do not in fact test the judge‘s finding of guilt by his rulings but, rather, con-clude that they are unable to do so. Examining those re-quests (13, 15, 16) which the judge denied (see majority opinion, footnote 13), the majority state that the judge‘s refusal to give them “suggest[s] that the judge inter-preted Giles’ answer . . . as denying that he had been the beneficiary of direct or indirect payments from Nessex.” Based upon this statement the majority make the assertion that they “cannot reconcile” the denial of these requests with the judge‘s granting of request no. 33. The inference left to be drawn by the reader is that it is therefore impos-sible to decide against which of the requested rulings — those granted or those denied — the judge‘s finding of guilt should be tested.
The purported irreconcilability of the rulings follows from a fault in the majority‘s reasoning, and the fault is of their own creation. The fault consists in their failure to recognize that the meaning to be given to Giles’ answer is a question separate and distinct from the question
The majority seek to justify the withholding of judgment from Giles by attacking the judge‘s ruling (request 33) on three grounds. First, the majority state that “[i]t is pos-sible that the judge interpreted request no. 33 as referring merely to direct payments from Nessex to Giles” (empha-sis supplied). The implication is that such an interpreta-tion of request no. 33 would remove the inconsistency they find between the requests denied and the requests granted. We have already shown that no such inconsistency exists. The narrow interpretation of request no. 33 by the majority would remove the inconsistency which exists between the ruling given (request no. 33) and the judge‘s finding of guilt. But it is clear from the judge‘s denial of requests nos. 13, 15 and 16 that he did not intend his ruling (request no. 33) to refer merely to direct payments. It is the major-ity who say that the denial of requests 13, 15 and 16 “sug-gests” that the judge interpreted Giles’ answer in the in-
The majority also imply that the granting of request 33 was the result of Giles’ “unduly large number” of requests which “had a tendency to become ‘a device to ensnare . . . [the judge] into error.’ Stella v. Curtis, 348 Mass. 458, 460-461.” Majority opinion, footnote 12. Nowhere does it appear that the judge considered the number of requests excessive. If he did, relief was open to him. See majority opinion, footnote 12. In addition, the reference to the Stella case scarcely seems apposite. The Stella case was a personal injury case where a plethora of requests was made on the sole issue of damages. Here, in contrast, we have a criminal case without precedent in law. It was imperative that the processes of legal thinking employed by the judge be ascertained in order to guard the defendant‘s rights.
Finally, the majority attack request 33 on the ground that “Giles had not so testified and there was no occasion for giving the ruling.”1 The statement is misleading. The purpose of request 33 was to test the judge‘s thinking on all of the evidence introduced at trial, not merely his thinking on what took place at the commission hearing. One of the issues in the case was whether Giles had received money from Nessex. The request asked the judge to rule on the sufficiency of the evidence on that issue. The ruling was decisive of the issue. It is an accepted rule of practice that such a request is a proper one and must be passed upon by the judge. Stella v. Curtis, 348 Mass. 458, 461. Bresnick v. Heath, 292 Mass. 293, 298-299. Judgment should be en-tered consistent with the ruling given.
4. In addition to what we have said, there are errors which permeate the indictment as a whole and require that judgment be entered for Giles on both counts. In particu-lar, the majority disregard the basic concept that a convic-tion of perjury cannot stand unless proof is forthcoming that the answer of the witness, if proved false, is material, i.e., has a reasonable and natural tendency to influence or affect the result of or decision on the matter under investi-gation. In the first Giles case, 350 Mass. 102, 110, the ma-jority acknowledged the validity of this concept. It is the settled law of the Commonwealth that it is an essential ele-ment of the offence. Commonwealth v. Louis Constr. Co. Inc. 343 Mass. 600, 607. It is equally well settled that the proof must be beyond a reasonable doubt. Commonwealth v. Pollard, 12 Met. 225, 228-229. Commonwealth v. Grant, 116 Mass. 17, 20-21. Commonwealth v. Aronson, 250 Mass. 521.
With respect to the issue of materiality, the majority say that “the inquiries made were relevant to the commis-sion‘s general legislative investigation” (emphasis sup-plied). This, however, is not the test. It is the materiality of the defendant‘s answer which, if proved false, is crucial in a prosecution for perjury. See the first Giles case,
We observe that the majority‘s treatment of materiality here is reminiscent of their treatment of materiality in the first Giles case, 350 Mass. at 112. The indictment did not allege that Giles’ allegedly false answers were material to the matter under investigation. The majority said, how-ever, contrary to our earlier decisions, that materiality need not be alleged, because it was implied in the indict-ment. And now the majority, despite their admissions that the commission would not have asked Giles to testify at all and that the commission had no purpose for getting his testimony, nevertheless refused to enter judgment for Giles on count 2. They thereby imply, but do not say, that the materiality of his testimony need not be proved. This is a departure from the law of perjury as it has always been understood here and elsewhere.
We are prepared to show from all that is before us that not only has the prosecution failed to prove the materiality of Giles’ answers, but also that they are unable to do so upon any retrial. By “all that is before us,” we include not only all that was in the record when the case was ar-gued before this court, but also two documents which, four
The sequence of events disclosed by a reading of all that is before us shows Nessex and Stuart had been under in-vestigation since early in 1963. According to Mr. Gardner, in 1963 on October 2, and October 16, and on November 9, respectively, the Crime Commission voted to submit to the Attorney General its evidence relating to Nessex, Stuart, Giles, and others. A statement was prepared by the com-mission‘s counsel, and the evidence, with the statement, was turned over to the Attorney General. Thus, as early as October 2, 1963, and certainly no later than November 9, 1963, the Crime Commission and its counsel were convinced that they were in possession of sufficient evidence to prose-cute Giles on the Nessex and Stuart matters. Although no action was taken by the Attorney General in response to the Crime Commission‘s communications, the commission‘s de-cision on the matter under investigation had been made. Giles’ answers, subsequently given at the commission hear-ing, could have no reasonable or natural tendency to in-fluence a decision which already had been made and there-fore cannot be deemed material.
The majority state that the only reason the commission held the hearing of February 4, 1964, was “to comply with . . . [Giles‘] request” for a hearing, and that Giles would not have been asked to testify at all “if it had not been for his own request to the Attorney General for an opportunity
At no time prior to his appearance before the commission was Giles given any indication of the extent of the commis-sion‘s prior investigation or that the commission on three occasions had requested the Attorney General to take ac-tion against him. When Giles did appear before the com-mission, the opening statements of the chairman and the commission‘s counsel gave him no inkling that he was under investigation. Mr. Gardner advised Giles of his constitu-tional rights and administered the oath. Before the inter-rogation began, the commission‘s counsel said: “As you know, since sometime last fall, we have been conducting an investigation of the Nessex Engineering Company, Stuart Engineering Associates . . . [and two named individuals, not including Giles] . . . , and I wondered with reference to either the investigation in general or the subject matter of the investigation as pertains to those two corporations and the two individuals if you desired to make for the bene-fit of the Commission some statements?” The fair import of both the commission correspondence and counsel‘s state-ment at the opening of the hearing is that the commission was interested only in the conduct of the two named corpo-rations and the two named individuals (not including Giles), and that Giles’ own conduct was not under investigation.
The course of events, controlled by the Crime Commis-sion before, at and after the hearing, makes it painfully clear that the commission‘s purpose was neither to give Giles “an opportunity to explain” nor to gain additional information from him. Instead, the commission‘s real pur-pose was to disarm Giles by letter and by the opening state-ments of the chairman and the commission counsel, and then to adopt a method of inquiry which would lead Giles to make a general statement which could be found to be in-consistent with the mass of detailed evidence already sub-mitted to the Attorney General by the commission and thus, by the additional allegation that Giles had committed per-jury, spur the Attorney General to action. In short, what we have here is an indictment contrived by the Crime Com-mission for alleged perjury before the Crime Commission on a matter concerning which its investigation had been closed and its decision to prosecute had been made several months prior to Giles’ testimony.
Law enforcement in this Commonwealth, as we long have known it, has sprung from a purpose to detect crime, to apprehend the criminal, and to bring him to justice for his misdeeds rather than from a desire to ensnare and victimize a citizen and bring him to his ruin by the misuse of his words. Our position is that an indictment procured as this one was procured is such a reproach to public justice as to cause this court to reject any conviction based upon it. We do not rely upon United States v. Icardi, 140 F. Supp. 383 (D. D.C.) nor do we ask that the Federal rule against en-trapment be invoked. The facts speak for themselves. The indictment is anomalous. The counts are sophistical. The proof is synthetic. Both convictions are wrong.