311 Mass. 213 | Mass. | 1942
The four defendants O’Rourke, Wallace, James S. Kerrigan, and Thomas J. Kerrigan, were indicted jointly, together with “John Doe and Richard Roe,” whose true names and more particular descriptions are stated to be unknown to the grand jurors, in four counts for conspiracy to (1) file, (2) make, (3) sign, and (4) use false nomination papers to secure the placing upon the ballot of the name of William H. McMasters as a candidate for Governor. See G. L. (Ter. Ed.) c. 56, § 13, and G. L. (Ter. Ed.) c. 53, § 6, as amended, § 7, as amended, § 9. All four of the defendants specifically named have been convicted on each count.
A basic question is whether there was evidence to warrant the verdicts of guilty. The substance of the evidence tending to show the falsification of papers as it appears in the printed record and as it comes to us in the form of
The next question is whether there was evidence to warrant the finding that the several defendants were members of the conspiracy. There was evidence of these facts: In the latter part of June, 1940, the defendant Wallace was introduced to the candidate McMasters. Wallace hired “a headquarters” in South Boston, and after the latter part of June was circulating McMasters’s papers. On July 5 he hired an office in the Foresters’ Building at K and
As to the defendant O’Rourke there was evidence that, besides arranging for the telephone, he was present when Wallace made inquiries about hiring the office, but “Wallace did all the talking”; that on fifty or seventy-five occasions O’Rourke had left McMasters’s papers in the office, of the Boston election commissioners, and he had ■signed receipts for them after they were certified.
As to the defendant Thomas J. Kerrigan there was evidence (admitted against him alone) that he had stated in September, 1940, that in July he had taken a job “driving the defendant Wallace and others,” and had received $200 for a month’s work; and that he had driven the defendant O’Rourke to Boston City Hall on numerous occasions and had gone with him to a printing establishment to get papers.
There was evidence that all four of the defendants were seen daily at the Foresters’ Building “until the tenancy was up the last part of July.”
The defendant Wallace testified in substance that he agreed to circulate nomination papers for McMasters, hired the headquarters in the Foresters’ Building, organized the circulation of papers in different parts of the State, employed O’Rourke at $40 a week for three weeks “to take charge of wards 6 and 7 of Boston,” hired James S. Kerrigan as a messenger at $20 for one week and $25 a week for two weeks, hired Thomas J. Kerrigan at $8 a day as chauffeur and for the use of his car, employed “several
The defendant O’Rourke testified that Wallace employed him to solicit signatures; that he was given charge of the South Boston district; that persons soliciting in that district were paid three cents for each signature that “passed certification” by Wallace; that he himself took no part in the checking of signatures; that he spent part of his time out in the district and part of his time at “Forester’s Hall”; that he did on numerous occasions take papers for certification to the office of the Boston election ■ commissioners and signed his name in the receipt book; that he called for the papers that had been left for certification and delivered them to Wallace; and that he had applied for the telephone at Wallace’s direction. He denied any part in the printing of any papers and denied entering into any
In the foregoing paragraphs we have endeavored to state the substance of all the evidence against the several defendants. From this it could have been found that many completely filled and wholly forged papers marked “G” (the Brockton papers alone containing approximately two thousand one hundred seventy forged names) had been sent out from the South Boston “headquarters ” for certification by the local election officers; but there was no evidence that any of the forgeries was in. the handwriting of any of the defendants or of any of those employed at the Foresters’ Building; and there was no direct evidence that any of the defendants or anyone at the building knew that the papers were to be or had been forged. The question then is whether the evidence as a whole was such that it would support circumstantially a reasonable inference that any of the defendants in any manner procured the false signatures or participated with those who made the false signatures in the filing, making, signing, or use of the forged papers; and in this connection the appearance of the papers themselves may be considered. There is nothing about them that would lead a casual and inexperienced observer to believe them forged, but in our opinion the jury could find that even a person without special experience in such matters and not an expert on handwriting (see Priorelli v. Guidi, 251 Mass. 449), having occasion to examine these papers would be likely to notice the striking similarities in the handwritings of supposedly different persons recurring through the papers, sometimes at short intervals. There was also a certain appearance of regularity and uniformity about the “G” papers which it might be thought could scarcely be expected if they were signed at different times and places, when different kinds of pens, inks, and pencils might be expected to be used by different signers.
In our opinion there was evidence to warrant the verdict against the defendant Wallace. He could be found to have
There is less evidence against O’Rourke. He was merely an employee, although he had charge of "the circulation” of papers in South Boston. He is not shown to have had any connection with forged papers beyond taking them (so far as appears, with other papers not forged) to the office of the Boston election commissioners, and calling for them after they had been certified. It would be difficult to infer from this that O’Rourke ever examined the forged papers. He was seen at the Foresters’ Building daily, but this adds little in the absence of evidence as to what he was doing there. In our opinion this evidence does not bridge the gap between suspicion and proof and did not warrant the conviction of O'Rourke. See Commonwealth v. Connelly, 163 Mass. 539,543.
So far as appears the duties of James S. Kerrigan were merely those of a messenger. Although he too was seen at the Foresters’ Building daily, he is not shown to have
There is still less against Thomas J. Kerrigan. Being employed by Wallace as a chauffeur and being seen at the Foresters’ Building daily, with no evidence of any contact with the papers, does not suffice to show complicity in the alleged conspiracy.
Venue was properly laid in the county of Plymouth, since the jury could find that the conspiracy involved the presentation of forged papers for certification at Brockton in that county. Commonwealth v. Pettes, 114 Mass. 307. Commonwealth v. Saul, 260 Mass. 97. Hyde v. United States, 225 U. S. 347. Brown v. Elliott, 225 U. S. 392. The King v. Brisac, 4 East, 164. See cases collected in Wharton’s Criminal Law (12th ed.) § 1666, and in 15 C. J. S. 1116, § 83. And the act of presenting them was the act of the conspirators if performed by their agent, even if the agent was himself innocent. Commonwealth v. Glover, 111 Mass. 395. Commonwealth v. White, 123 Mass. 430, 433, 434. Fore River Shipbuilding Corp. v. Commonwealth, 248 Mass. 137, 140, 141. Commonwealth v. Ober, 286 Mass. 25, 31, 32.
The judge rightly declined to rule as requested by the defendants in substance that in order to prove the intent necessary for a criminal conspiracy there must be evidence that the defendants had knowledge of the law which they conspired to violate. The ruling requested involved a misapplication of the principle discussed in Commonwealth v. Benesch, 290 Mass. 125, 134, 135. That principle is a narrow one. It has no application where there is anything inherently wrong or inimical to the public interest in that which the defendants have combined to do. The making and use of false nomination papers is in its very nature wrongful and detrimental to the public interest. The doing of these acts can almost never be consistent with an innocent purpose. See Commonwealth v. Adams, 114 Mass. 323. One who joins in a conspiracy to that end may be found
Other requests for rulings, in so far as they have been argued, require no further discussion. To have granted them to any greater extent than they were in substance given would not have been consistent with the grounds on which this opinion rests.
The defendants objected and excepted to a portion of the district attorney’s argument, which they construe as an argument that the jury should draw inferences against the defendants for their failure to call as witnesses persons whose signatures purported to be affixed to the papers. Whether or not this is the true construction of the argument, there was no error in allowing it or in the charge of the judge wherein he permitted the jury to draw from this circumstance an inference adverse to the defendants as to the forging of the papers. It is frequently held that where a witness is equally available to either party no inference can be drawn against either for not calling him. Fletcher v. Willis, 180 Mass. 243, 244. Jones v. Boston & Northern Street Railway, 211 Mass. 552, 555. Mikkelson v. Connolly, 229 Mass. 360, 362, 363. Cutler v. Jordan Marsh Co. 265 Mass. 245, 247, 248. But there is no hard and fast rule to that effect. Whether an inference can be drawn from the failure to call witnesses necessarily depends, as with inferences generally, upon the posture of the particular case and. the state of the evidence. Wigmore on Evidence (3d ed.) § 288. See Commonwealth v. Finnerty, 148 Mass. 162, 166, 167; Harriman v. Reading & Lowell Street Railway, 173 Mass. 28, 35, 38; Commonwealth v. Peoples Express Co. 201 Mass. 564, 581; Little v. Massachusetts Northeastern Street Railway, 229 Mass. 244, 246-248; Mumford v. Coghlin, 249 Mass. 184, 186, 187, 191; Commonwealth v. Sacco, 255 Mass. 369, 441-443. Compare Heina v. Broadway Fruit Market, Inc. 304 Mass. 608, 611, 612. Here the district attorney had already called five witnesses who had
The result is that the exceptions of the defendants O’Rourke, James S. Kerrigan, and Thomas J. Kerrigan are sustained, and the exceptions of the defendant Wallace are overruled.
So ordered.