163 Mass. 411 | Mass. | 1895
The conviction was only upon the second count of the indictment. The motion to quash and the motion in arrest of judgment were not argued in behalf of any of the defendants, though they were not expressly waived. No objections to the count have been pointed out. We see no ground for quashing it, or for arresting the judgment.
The defendants object that the evidence was not sufficient to warrant a conviction. The grounds of objection relied on are, (а) that no conspiracy between the defendants was proved ; (б) that certain of the defendants took no part in any conspiracy; (c) that if there was a conspiracy, it was not with reference to all four of the aldermen named; and especially that there was no conspiracy to solicit bribes for Tilton.
A conspiracy may be proved by circumstantial evidence, and
The order of introducing the evidence is within the discretion of the presiding judge. 3 Greenl. Ev. § 92. State v. Winner, 17 Kans. 298. Bloomer v. State, 48 Md. 521. State v. Jackson, 82 N. C. 565. Carson’s Cases, ubi supra.
An examination of the testimony, which is reported to us in full, satisfies us that the jury were warranted in finding that there was a conspiracy to solicit bribes for aldermen; that all the defendants took part therein; and that the purpose was to solicit bribes for the four aldermen named in the indictment. There being prima facie evidence of a conspiracy, the participation of each defendant therein may be shown by his own acts and declarations during the existence of the conspiracy; and these same acts and declarations may also tend to establish the conspiracy itself. The testimony which was relied on by the prosecuting officer tended to show the following state of things.
The defendant Smith was a wholesale dealer in liquors in Boston, with customers in Haverhill, at which place the defendant Kimball was his agent. The other four defendants, Tilton, Cate, Ham, and Hoyt, were aldermen of Haverhill. There were in all seven aldermen, but there was no charge or evidence against the other three. The whole number of licenses to sell liquors which could be granted in Haverhill was twenty-seven. The licenses would date from May 1. On April 16, 1894, fifteen licenses were granted, and on April 27 twelve more. The whole number of applications for licenses was forty-one. Prior to March 6, 1894, when it is contended that the conspiracy was first entered into, the defendant Kimball knew all of the four indicted aldermen ; Smith was well acquainted with Tilton, had perhaps met Cate once or twice, though he
Cate testified that after the first lot of licenses was granted there was a good deal of public talk and excitement in Haverhill, and that he had heard Smith’s name mentioned a few times in connection with the granting of licenses. On or about April 21, the defendants Cate, Ham, and Hoyt went together to Boston by Smith’s invitation, and in the evening visited the Italian quarter of the city and had a supper with Smith, who had got an officer to go with them. This had a tendency to show that the common purpose, at least so far as those four were concerned, was still continuing. In order to show that this common purpose was the same that was charged in the second count of the indictment, testimony of acts and declarations of the several defendants were relied on as follows.
Before April 16, Smith and Kimball both said or intimated to Leighton, who was an applicant for a license, that he would have to pay money in order to get it; that he had better see others of the aldermen besides Pinkham and Croy. Smith told him that it would cost him $200 for his license, and told him “ to get a hustle on, and go and see the aldermen ”; and that the money was to be paid to Smith. No license having been granted to Leighton on April 16, Kimball advised him the next day to go to Boston and see Smith, which he did, and Smith told him he would have to “ see those aldermen and settle to get a license,” and to go and see Hoyt without fail. Leighton went the next morning to see Hoyt, who intimated that he wanted money, and told him that whatever Smith said was all right. Leighton within a day or two told this at Haverhill to Smith, who said he would go down town and see what
Porter C. Croy testified that between April 1 and April 10 Kimball told him that his brother, Alderman Croy, must be a damn fool, when he might as well get $400 or $500 out of it as nothing. The witness asked him, “ Have n’t you got enough votes now ? ” Kimball told him (in substance) that he had, and that he had got Aldermen Cate, Ham, Tilton, and Hoyt fixed up. Being asked where he was going to get the money to pay the $400 or $500 to witness’s brother, Kimball replied, “ I will take care of that.”
Connolly testified that, between the granting of the first and the second lots of licenses, he told Smith that he would like to have a license; that Smith told him the boys were getting up a pool to carry on the campaign next fall to have the city vote in favor of license; and that $500 should be paid by Connolly, and afterwards told him that he would let him down for $200; and that if he paid $200 he should have a license.
Bourque testified to a conversation with Tilton between the granting of the first lot of licenses and the second. Bourque was interested to get a license for one Roque and told Tilton there was a rumor that money was needed to get the licenses. Tilton said he did n’t know, and at any rate he would n’t take any money from anybody for his vote; he would find out, and if there was anything new he would let Bourque know. After-wards, before April 27, Tilton told him they were all bidding to get their licenses, and he told Bourque to see Roque and tell him it would require $200 for his license; “ if he gives you the money, you come to me, and I will tell you who to give it to.” Tilton had a slip of paper with names upon it, and sums marked against each; $200 against Roque’s.
Merriam also interceded for Roque with Tilton, who said to him, “ I would not take a dollar from any man; but if you fellows want Roque to have a license, you will have to settle with Cate and Ham.” Ham came in; witness asked him if he would vote for Roque’s license. He said he thought he would; he supposed there was a way to get at it. Cate came in. Merriam asked Cate if he would vote for Roque; he said he thought he would.
To Dearborn, an applicant, Smith said, on April 16, there was great need of doing something to keep the city in the “Yes” line; that in order to do it, it took money. Dearborn said‘he was always willing to take hold and help, and asked how much it would be, and what they were going to pay. Smith said about $300, he thought. He said he was forming a club.
Cate sent Smith to Dr. Clement, who had asked Cate as to the way of getting a license and whom to see.
Carroll was an applicant for a license. He got none on April 16, but obtained it on April 27. He talked with Cate, who asked or ordered him to send some liquor to Ham, which was done. He talked with Hoyt, who said he would not advocate Carroll’s license with the other aldermen unless he had some money to do it with; and that it was the understanding that men who got licenses should pay for them, and referred Carroll to the other aldermen. Before April 16, Carroll talked with Tilton, who told him he could do business with Hoyt and Cate, and could buy them, and assured Carroll of his own support. Afterwards, April 11, Tilton called on Carroll and said, “ I came to talk with you about your license. What I say to you is never to go any further. I give you this as strictly Masonic. You can have a license, but three of the aldermen must be paid $150 apiece. I don’t want a cent. You' shall have my vote.” Carroll said he should not pay money to continue his business, but “ any one who would interest themselves to assist me to procure a license, or would devote any of their time in. my behalf to procure the same, I should of course expect to pay them for their time,” and asked what day they would want the money. Tilton said, “ Any time.”
As bearing upon Tilton alone, there was evidence that he
Taking all the evidence together, of which the foregoing is an abstract of only the most significant portions, it was sufficient to warrant a finding by the jury that all of the defendants took part in a conspiracy to solicit applicants for licenses to give money to all four of the aldermen named. The evidence tended to show that Smith and Kimball were the chief agents to communicate with the applicants for licenses. It is true, that it was sometimes represented that the money was wanted to be used in the city election, which was to take place in the following December. But the jury might well infer that, if money was wanted from applicants for licenses just before the time for granting licenses, it was to be used in aid of their obtaining licenses. It was specially ui'ged that the evidence did not warrant a finding that Tilton was to be paid anything. It is true that Tilton said to Bourque, Merriam, and Carroll that he would not take any money himself. But from his relations and communications with Smith and Kimball and with his three associates, and from his interest in the general scheme of inducing payments of money, it might be inferred that the four aider-men were acting together, and that he was to be included in the distribution of the money when obtained, notwithstanding his verbal disclaimer to Bourque, Merriam, and Carroll.
The other objections relied on in argument relate to the admission or exclusion of evidence, and to the instructions of the court in relation thereto, and are as follows.
1. The city election for the choice of aldermen was held on December 5, 1893. By St. 1893, c. 417, § 147, the city clerk, under the direction, of the board of aldermen, was required to cause notice of the meeting to be printed in one or more newspapers published in the city, and also to be conspicuously posted in the office of the city clerk; but there is no express requirement that he should make a formal return. In the warrant, as it was called, or notice for the election issued by the city clerk, an order was recited that notice of the above meetings shall be given by publishing a copy twice in two specified newspapers, and by posting a copy of the same in the city clerk’s office. The city clerk made a return thereon, that a certified copy of
We do not wish to affirm that the return of the city clerk was, of itself, evidence of as high a character as his sworn testimony; but, assuming this in favor of the defendants, yet an election is not to be set aside for a mere informality or irregularity which cannot be said in any manner to have affected the result of the election. Dillon, Mun. Corp. § 197, note. Commonwealth v. Smith, 132 Mass. 289. The aldermen were elected and acted as such without objection, and no question as to the validity of their election was raised, so far as appears, until the trial of this case.
2. There was evidence to show that at the outset the mayor and Aldermen Pinkham and Croy were appointed a committee on licenses, under an old rule formerly adopted, but not specially re-enacted during the current year; and that on March 19, 1894, on motion of the defendant Tilton, a vote was passed that the mayor and aldermen should be a committee to whom all applications for the sale of liquors should be referred; and that thereafter only applications for druggists’ licenses were referred to the committee composed of the mayor and Aldermen Pink-ham and Croy. The effect of the vote was to change the course of proceedings on applications for all other licenses, so that the four aldermen now under indictment should join in passing upon them in the first instance. This evidence was competent as against Tilton, at least, and would be competent against the other indicted aldermen, if they voted for it.
3. Evidence was admitted of the applications of forty-one applicants for licenses. The objection suggested, but not much pressed, to this evidence is that, since the names of the successful applicants appeared later in the case, the jury might thus learn who failed to procure licenses, and might be led erroneously to infer partiality on the part of the aldermen. We see no force in this objection.
5. The witness McDonald, having testified that he paid nothing to any one in respect to granting his license, and that he knew of nobody who did so, was asked if he had a conversation with one Arnold in the latter’s sales-room within one or two days before the transfer of his license, (which transfer was applied for on March 12,) in which he said to Arnold in substance that “ different ones to his knowledge had put in from $100 to $200 apiece around to get the licenses; ... it cost me $100; . . . I ain’t saying anything about who I paid it to, but Hoyt got it.” The witness answered that he had no recollection of saying anything to him of the kind, and nothing in substance of the kind. These latter questions were asked with a view to contradicting him, as allowed by Pub. Sts. c. 169, § 22, under which it is necessary to mention to the witness “ the circumstances of the supposed statement, sufficient to designate the particular occasion.” It is now objected that the particular occasion was not mentioned to McDonald; but we think the time and place were sufficiently fixed.
It is also objected that the questions to McDonald were on immaterial matters, and that the government was bound by his answers. But it would be plainly material to show that at this time, which was after the date when the alleged conspiracy began, he and others were paying money in order to get licenses, and that Alderman Hoyt had got the money paid by him. Arnold was subsequently called as a witness, and it was sought to contradict McDonald by him. The objection to Arnold’s testimony, which is now relied on, is that he was permitted to testify to an entirely different conversation with McDonald.
It is doubtful if this ground of objection is open to the defendants, as it was not taken at the trial. If open, the time and place fixed by Arnold for his conversation were the same, namely, just prior to the transfer of McDonald’s license, and at Arnold’s sales-room. Although his testimony did not contradict
6. Alderman Pinkham was allowed to testify that at the meeting of April 16,
7. Dr. Clement, after testifying to a conversation with the defendant Smith, was allowed to say that he at once telephoned to Arnold. This was admitted merely as fixing a time, and nothing was admitted of what was said through the telephone. It was competent for this purpose.
8. Laubham, who was Tilton’s clerk, being a witness for the defendants, testified on cross-examination that he did not on a certain occasion say to Carroll, in substance, “ George [Tilton] wants to get that money ”; that Tilton did not ask him to get any money from Carroll; and that he did not tell Carroll that
9. The witness Croy, brother of Alderman Croy, testified to a conversation with the defendant Kimball, while driving with him to Boxford at some time between the 1st and 10th of April. The most significant things testified to were, that Kimball said Croy’s “ brother must be a damn fool, when he might as well get $400 or $500 out of it as nothing ”; to which Croy said, “ Kimball, the first thing you know, you will get yourself into trouble if you do anything like that.” Kimball said, “Yes, you always was a damned fool and scared to death, or you might have sold more rum, and got more money.” Croy said, “ Have n’t you got votes enough now? Have n’t you got Aider-man Cate, and Alderman Cox, and Alderman Ham, and Aider-man Tilton fixed up?” Kimball replied, “Yes.” And then in answer to the question, “ Alderman Cox? ” Croy answered, “Ho; the four aldermen.” In answer to the question, “ What four?” Croy said, “ Alderman Cate, Alderman Ham, Alderman Tilton, and Alderman Hoyt.” When Kimball spoke of the $400 or $500, Croy asked where he was going to get the money to pay the $400 or $500 to Croy’s brother, and Kimball replied, “ I will take care of that.” Croy testified positively that he was not mistaken as to the place of this conversation, and that it was not in his drug store, and was not about Thomas McDonald, or relating to the transfer of McDonald’s license. Kimball was called in defence to contradict Croy, and fixed the time of the drive to Boxford as April 8, but denied in detail that he then said any one of the things above mentioned which were attributed to him, or that the conversation related at all to licenses. He then testified that he had another conversation with Croy in Croy’s store about the 1st of March, and was asked what it was. Objection being made, Mr. Hurlburt, for the defence,
The court excluded the testimony. Mr. Hurlburt said, “ I suppose we have stated it fully enough ? ” Mr. Moulton added, “We claim that we have a right to have the jury listen to this conversation, and say whether that is the one that Croy has incorrectly detailed.”
It thus appears that the offer was to show a conversation between Kimball and Croy at another place, several weeks earlier, and at a time before the alleged conspiracy was entered
10. The questions put in cross-examination to the defendant Cate as to the public talk about the defendant Smith’s connection with the granting of the licenses were properly allowed.
11. The objection most relied on by the defendants is as to the ruling of the court requiring the several defendants, while testifying in their own behalf, to answer the questions whether they did not refuse to testify before the grand jury on the ground that they might théreby criminate themselves. But this objection also is unavailing.
It was within the constitutional right of the several defendants, when testifying before the grand jury, to refuse to answer questions on that ground. Declaration of Rights, art. 12. By Pub. Sts. c. 169, § 18, cl. 3, it is provided: “ In the trial of all indictments, complaints, and other proceedings against persons charged with the commission of crimes or offences, a person so charged shall, at his own request, but not otherwise, be deemed a competent witness; and his neglect or refusal to testify shall not create any presumption against him.” This provision of statute does not in terms include an investigation before the grand jury, which cannot be considered as a trial. But it may be assumed that the provision of the Constitution needs no statute to reinforce it in this particular, and that the refusal to testify before the grand jury could create no presumption against the defendants, whether the above statute applies or not. This means, no presumption upon which a legal judgment or consequence could rest. Magistrates and courts in their official action must give no weight to it. One who avails himself of his constitutional privilege, and refuses to accuse or furnish evidence against himself, shall be subject to no injurious consequence under the law by reason of his having done so. The Constitution and laws do not and could not assume to say that no unfavorable private opinion should be formed. The protection afforded by the Constitution is that the individual shall not be prejudiced at law by his silence, if he keeps silent.
The defendants, however, contend that this rule, although it may be true as a general proposition, is not applicable to the facts of this case. The particular question now presented is, whether one under indictment, and voluntarily testifying in his own behalf on his trial, must disclose the fact that, when an involuntary witness before the grand jury which was investigating the same matter, he refused to answer on the ground that he might criminate himself. It is contended that this is a fact of no probative force against him, being merely an assertion of his constitutional right; and that by testifying afterwards he did not waive the protection of the Constitution as to this fact, which stands on special grounds, peculiar to itself.
We are unable to assent to either of these views. We have no occasion at this time to enter upon the consideration of the question whether such refusal to answer could have any legitimate bearing upon the general question of the guilt or innocence of the accused; that is, whether it could be regarded as in the nature of an implied admission of guilt. The presiding judge in his instructions to the jury expressly excluded this view, and limited the effect of the refusal to its bearing upon the credit to be given to the witness. He ruled in effect that, where a defendant now testifies that he is innocent of a criminal charge, the fact that he has heretofore refused to answer in relation to the subject on the ground that his answers might tend to criminate him may be considered as bearing upon the credibility of his present testimony. The defendant in such case now says that he is innocent. He formerly did not say that' he was innocent, but that he would not answer lest he might criminate himself. This fact, though open to explanation, has some tendency to throw a doubt upon the truth of his present testimony, and thus has some bearing upon one material question, namely, the truthfulness of the witness.
Nor can we assent to the doctrine that the'waiver by the defendant of his constitutional protection is only partial. By becoming a witness, he throws away his shield. He voluntarily accepts the position, and requests the privilege of testifying in
We cannot adopt the view taken in Cooley, Const. Lim. 317, and apparently in State v. Bailey, 54 Iowa, 414, that a defendant in an indictment who is testifying in his own behalf may stop at any point he chooses. An ordinary witness, who is not a party, has a right to stop when he is first questioned in respect to facts which may tend to criminate him; Taylor, Ev. § 1465; but a party under indictment who on his trial offers himself as a witness knows in advance that such questions are to be put, and that he is to testify as to his guilt or innocence, and - he waives bis constitutional protection in advance. Commonwealth v. Nichols, 114 Mass. 285. Andrews v. Frye, 104 Mass. 234. Commonwealth v. Tolliver, 119 Mass. 312.
On a review of the whole case, we find no error injurious to the defendants in the trial. Exceptions overruled.
It appeared that one of the aldermen was absent from this meeting, and that the mayor opposed the granting of licenses, saying that it was his wish that no licenses should be granted until the full board was present.
Upon the cross-examination of Cate the district attorney asked him the following questions:
“ Q. Rightly or wrongly, there was a good deal of public talk and excitement in Haverhill after the first lot of licenses was granted? A. Tes.
“ Q. Whether it was right or wrong ? A. Yes, sir.
“ Q- Mr. Pinkham leaving the board and saying what he did made a good deal of excitement ? A. Yes, sir.
“ Q. And Smith’s name in connection with these licenses was the matter of common public talk, wasn’t it, if you heard it? A. 1 heard it mentioned a few times.”