208 Mass. 202 | Mass. | 1911
This is an indictment against the defendant White, who was the mayor of the city of Lawrence, and five other persons, charging them with having conspired together, and with other persons whose names are to the jurors unknown, to bribe three members of the board of aldermen of that city to vote in favor of the removal of one Hamilton from the office of chief engineer of the fire department, which office he held by the appointment of this defendant as mayor. The exceptions were taken by White alone,
The exceptions argued by the defendant relate to three subjects : First, the refusal to rule that there was no evidence to warrant a verdict of guilty; second, the alleged errors in ruling upon the admission of evidence; third, the impanelling of the jury, and the alleged error in allowing certain peremptory challenges by the Commonwealth.
There was much evidence tending to show attempts to bribe aldermen by some of the defendants. This came through' the testimony of numerous witnesses as .to what was said and done, constituting such attempts. The defendant’s counsel has argued the case as if none of this testimony was to be considered by the jury, as against the defendant, for any purpose. When the district attorney offered different conversations between different defendants and individual members of the board of aldermen, the judge, after objection by the defendant White, admitted the conversations and statements only as against the particular defendant who was the party to them, telling the jury that he would instruct them later as to how far and for what purposes the statements could be considered. Plainly the conversations and statements, considered as in the nature of admissions, were competent only as against the persons who made the statements or took part in the conversations. This was the substance and effect of the ruling.
But if a material transaction, like the acceptance of a bribe, or an attempt to influence one by the gift of a bribe, was accomplished wholly or in part by words, proof of the transaction by stating the words would be competent against any person in whose trial the transaction might be important as a circumstance proper to be proved. The substance of the offense charged against the defendant can be proved only as such offenses are commonly proved, by circumstantial evidence.
There was testimony of a statement by the defendant in December, 1909, that, if he was re-elected and could get four aldermen to stay, he would remove Hamilton as chief of the fire department, that he was an ingrate; that he repeated this state
There was evidence that, afterwards, an order was passed by the city council, requesting the mayor to call the attention of the district attorney to the one-thousand-dollar transaction. There was testimony that several days afterwards, at a meeting of the city council, he was asked if he had done anything about it, and he answered'jokingly, in a way to indicate that he did not intend to do anything. There was evidence that he took no measures to commence the prosecution of any person. There were many other circumstances properly to be considered on the question whether the mayor had knowledge that attempts at bribery were going on, and participated in them.
We are of opinion that there was evidence to warrant a find
A witness was permitted to testify, against the defendant’s objection, that about the time of the appointment of Hamilton the defendant had a talk with the witness about the appointment, and said, “Well, Jim, I have kept my word. I said I would appoint him and I did appoint him, though I was offered $2,500 not to appoint him.” This tended to show that, at the time of the appointment, he knew that a large sum of money was ready to be paid to prevent the appointment, and to put the office in the control of another. This was not very long before his effort to remove him. The evidence showed that he knew who was ready to pay the money, and that he was in such relations with the person or persons who wanted to pay it that they made him a direct offer of $2,500 to control the appointment. These are facts of no consequence, except as they indicated conditions and his knowledge of conditions presumably existing at the time of the attempt at removal. In connection with other circumstances, we are of opinion that these matters might be considered by the jury in determining his attitude and conduct when attempts to obtain the removal by bribery were going on.
Another witness, called by the Commonwealth, testified that, just at the the time when this removal was being most actively agitated, the defendant and two of the persons who were shown to be active in attempting bribery were in the mayor’s office together, and that the mayor’s private secretary asked the witness to retire. “ He said they wanted to have a private conversation.” This testimony was excepted to. The jury were allowed to consider it, only if they found that this remark was made with the knowledge and consent of the defendant White. Something reasonably might be inferred as to authority, from the fact that the private secretary of a mayor assumed to give a direction to a visitor in the mayor’s presence. As we understand the testimony, the jury well might find that the defendant heard the remark, and from his silence they might infer his assent to it. We are of opinion that the evidence was competent.
It is argued with great earnestness that there was error in permitting the Commonwealth to challenge two of the jurors
In this case seven jurors were called by the clerk, of whom two were challenged by the Commonwealth, leaving five in the jury box. The defendant’s counsel then asked leave to interrogate the jurors called for the trial. The judge ruled that only the statutory questions should be put, and they were put by the judge to these five jurors, and to others as they were called. Some were excused by the judge as not appearing to stand indifferent. Others were found to be indifferent. When twelve men, so found indifferent by the court, were sitting in the jury box, the defendants respectively exercised their rights of challenge. New jurors were called to take the place of those challenged, and each new juror was interrogated by the judge. Some were found to stand indifferent and others were excused. The defendants continued exercising their rights of challenge until all of them were exhausted. Then, when twelve men were sitting in the jury box and before they were sworn, the district attorney challenged two of the jurors peremptorily. The defendant objected, contending that the district attorney must exercise his right of challenge before the defendants, and that, by his failure to do so, he had lost it. The judge found as a fact that the district attorney did not intend to waive his right, and allowed his challenges to stand. The defendant excepted.
The only statute on the subject is that quoted above. There is no rule of court prescribing the manner in which these rights shall be exercised. Usually in civil cases, and often in criminal cases, it is exercised by the parties without any order of the court, and without an attempt to have their rights defined as to the order or method of making the challenges. In cases where the parties think the right very important, and usually in trials for murder, a direction is given by the court, defining the order and manner of making the challenges. In the absence of such a direction, or of conduct plainly indicating a waiver, the right
It seems that there was a misunderstanding on the part of counsel for the defendants in this case, as they thought there was a rule requiring the Commonwealth to exercise its right first, if it wished to exercise it at all. There was no error of law in the impanelling of the jury.
Exceptions overruled.
The six defendants were tried before Schofield, J. One was acquitted, and the others, including the defendant White, were convicted.
