304 Mass. 325 | Mass. | 1939
A writ of error issued from the Supreme Judicial Court, upon a petition brought therefor by the plaintiff in error (see G. L. [Ter. Ed.] c. 250, §§ 1, 2, 9-13), to reexamine a judgment entered in the Superior Court, whereby the plaintiff in error was sentenced to be confined
The record of the Superior Court embodied in the return of the Chief Justice discloses that sentence was imposed upon the plaintiff in error in the following terms: “It was therefore considered by said court that said Dolan, for his contempt, be punished by confinement in the common jail, in said county of Suffolk, there to be kept according to the rules of the same for the term of two and one-half years, and that he stand committed until he be removed in pursuance of said sentence.” See G. L. (Ter. Ed.) c. 220, § 14. The order of the court adjudging the plaintiff in error in contempt, as the record shows, was in these terms: “Edmund L. Dolan, the Court adjudges you in contempt for that you knowingly, wilfully and with intent to obstruct
Whatever may have been the common law it is established that under existing statutes (see G. L. [Ter. Ed.] c. 211, § 3; c. 250, § 9) “a sentence to punishment for a distinctively criminal contempt is a judgment in a criminal case, which may be re-examined upon a writ of error.” Hurley v. Commonwealth, 188 Mass. 443, 445. Blankenburg v. Commonwealth, 260 Mass. 369, 374-375. No contention is made that a writ of error does not lie in this case. The question for determination upon this writ of error is whether in the trial of the case on its merits error was committed in respect to any matters as to which error is assigned. Preliminary to this question, so far as. certain assignments of error are concerned, is the further question reported by the single justice of this court, in substance, whether it was error for him to deny the motion of the plaintiff in error that “‘suitable process’ issue to the end that a transcript of the evidence taken at the trial on the merits in the court below be made a part of the record.” For convenience the plaintiff in error, who was the defendant in
The course of proceedings in the trial court as disclosed by copies of documents and a copy of the docket entries therein embodied in the return of the Chief Justice was as follows: A complaint for contempt against the defendant was filed for the Commonwealth by the assistant district attorney on April 20, 1938. This complaint alleged that there were pending in the Suffolk Superior Criminal Court four indictments against the defendant, and that on March 21, 1938, the indictments were set down for trial for Monday, April 18, 1938. The complaint contained further allegations in paragraphs numbered 3, 4, and 5, set out in a footnote.
The defendant filed a “motion for bill of particulars,” to which the Commonwealth filed answers. The defendant filed a “motion for further particulars,” which was denied in part and allowed in part. The Commonwealth filed answers to the motion as allowed. The substance of these answers is set forth in a footnote.
The defendant filed a sworn answer to the complaint, and, at the trial, made a motion for trial by jury which was denied. The return sets out about seventy requests by the defendant for rulings with notations of the action of the court thereon, and also sets out a request by the defendant “that the court report this case to the Supreme Judicial Court for its determination.”
The conclusion stated in Blankenburg v. Commonwealth, 260 Mass. 369, 377, already quoted, was reached after an extended examination of the law governing writs of error
The provisions now embodied in G. L. (Ter. Ed.) c. 211, § 3, and c. 250, § 9, have remained substantially unchanged since they appeared respectively in Rev. Sts. c. 81, §§ 4, 5, and c. 82, § -31, and in the intervening period they have several times been reenacted (see Gen. Sts. c. 112, § 3; Pub. Sts. c. 150, § 3; R. L. c. 156, § 3; Gen. Sts. c. 146, § 12; Pub. Sts. c. 187, § 8; R. L. c. 193, § 9), presumably with the legislative intention of continuing the provisions in force with the judicial interpretations given them before such
A party seeking, as does the defendant, relief by writ of error under the statutory authority therefor must take the remedy with its limitations. And in proceedings upon a writ of error in a case of criminal contempt, as upon a writ of error in other criminal cases, as well as in civil cases, conformity to the provisions of G. L. (Ter. Ed.) c. 250, § 2, precludes inclusion in the record of the trial of the case on the merits of the evidence introduced at such trial. That such evidence is not a part of the record that can be examined on a writ of error was recognized by this court as early as the
It is urged, in substance, in behalf of the defendant, that a different rule relating to the scope of the record that would permit a broader review, including review of the evidence, should be followed in cases of criminal contempt, for the reason that no other method of review is available. But at common law, as already pointed out, there was no review of a sentence to punishment for criminal contempt, though it is not to be assumed that relief could not have been had upon a writ of habeas corpus if the tribunal was without jurisdiction to commit for contempt. See Emery’s Case, 107 Mass. 172; Sennott’s Case, 146 Mass. 489, 492; Morton’s Case, 196 Mass. 21. Moreover, at “common law there was no review of criminal cases as of right. Due process does not comprehend the right of appeal, McKane v. Durston, 153 U. S. 684, 687.” District of Columbia v. Clawans, 300 U. S. 617, 627. The statute authorizing review by writ of error of a sentence to punishment for criminal contempt as
There is no merit in the contention of the defendant that the language of the writ addressed to the Chief Justice of the Superior Court commanding him to “send us the record and process of the suit aforesaid, with all things touching them,” imports that the transcript of the evidence is to be sent to the Supreme Judicial Court for consideration. The writ must be interpreted in the light of the nature of the proceeding. And, on such an interpretation, the transcript of the evidence is not one of the “things touching” the record and process. Moreover, the limited scope of the proceeding is recognized in the writ itself by the further language thereof “that inspecting the record and process aforesaid, we may, for correcting that error therein, further
2. The defendant’s first assignment of error is the “denial of his motion for interrogatories to be filed to him so that he might answer the same under oath and be relieved from the alleged contempt.” The sole ground relied on by the defendant in support of this assignment is that he was entitled to purge himself of contempt by his oath and to make such oath in sworn answers to interrogatories. And the defendant’s sixth assignment of error — the “denial of his motion to dismiss the complaint for contempt” — is argued solely on the ground that he was entitled to purge himself by his oath. By the defendant’s sworn answer to the complaint he denied generally that he was guilty of the contempt charged therein and denied specific allegations of facts relied on as constituting such contempt. There was no error in the denial of these motions.
No decision of this court has affirmed the doctrine that the oath of a contemnor is a bar to a prosecution for contempt. Reference to the matter was made in Cartwright’s Case, 114 Mass. 230, 239, where it was said in “a court of chancery, at least . . . [the contemnor’s] oath is not conclusive in his favor, but may be contradicted by other evidence.” This statement went as far as the nature of that case required and no inference is to be drawn therefrom as to the law of the Commonwealth relating to other classes of contempt cases. The doctrine in question, however, was considered by the Supreme Court of the United States in Clark v. United States, 289 U. S. 1, 19, where that court, in a unanimous decision with an opinion by Mr. Justice Cardozo, stating that the doctrine “has ceased to be a defense in England since 1796. . . . has been rejected generally in the States” and “has taken its place with ordeal and wager of law and trial.by battle among the dimly remembered curios of outworn modes of trial,” held that the “oath of a contemnor is no longer a bar to a prosecution for contempt.” This decision with respect to the law of the United States is highly persuasive with respect to the law of this Commonwealth, and we think that, in the ab
3. The defendant’s second assignment of error is the “denial of his motion for further particulars concerning the complaint for contempt, and the court's limiting certain particulars ordered.” This denial was not error.
The proper procedure in prosecutions for criminal con-tempts which are not committed in the presence of the court is “closely analogous to that in ordinary criminal cases,” though “most of the technical requirements of criminal statutes have no application.” Hurley v. Commonwealth, 188 Mass. 443, 446. As was said in Root v. MacDonald, 260 Mass. 344, 365, “There are numerous particulars in which a proceeding for contempt, even when its object and result are wholly punitive, differs from an ordinary criminal proceeding.” But, as was said in Woodbury v. Commonwealth, 295 Mass. 316, 323, “In the prosecution of contempt not committed in open court, ‘the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defence or explanation.’ Cooke v. United States, 267 U. S. 517, 537. Technical accuracy of pleading however is not required.” And, by analogy to the procedure in ordinary criminal cases, the defendant in this case was entitled as of right only to such particulars as, together with the allegations in the complaint, would satisfy the requirement that he be so advised of the charges against him as to have a reasonable opportunity to meet them. Whether the Commonwealth should be ordered to furnish particulars not essential for this purpose was, at most, discretionary with the trial judge. See Commonwealth v. Bartolini, 299 Mass. 503, 509. It is not the office of a bill of particulars in an ordinary criminal case to compel the Commonwealth to disclose its evidence (Commonwealth v. Jordan, 207 Mass. 259, 265), and it has no such office in a prosecution for criminal contempt. Without intimating that the complaint without the particulars furnished would have been inade
4. The defendant's third assignment of error is the denial of his motion to expunge paragraph numbered 3 of the complaint for contempt, and his fourth assignment is the denial of his motion to quash this paragraph. ■
This paragraph charges conspiracy of the defendant and others to influence and corrupt jurors. The defendant contends that the paragraph should have been quashed or expunged for the reason that a "conspiracy to commit a contempt is not in itself a punishable contempt." This proposition of law — whether or not sound — is inapplicable to this complaint. The complaint cannot rightly be construed as charging conspiracy "in itself" independent of other facts. Plainly the several numbered paragraphs of the complaint cannot be read as separate counts, each of which must be sufficient in itself unaided by averments in other counts not incorporated by reference (see Commonwealth v. Crossley, 162 Mass. 515, 516), but, on the contrary the complaint must be considered as a whole, charging a single contempt committed by the defendant through a course of action pursued by him of which each element was an integral part of the alleged contempt, and setting forth in each of the several numbered paragraphs, including the third paragraph, an element or elements of the alleged contempt. And conspiracy was a part of the contempt charged. See Blankenburg v. Commonwealth, 272 Mass. 25, 35. See also Commonwealth v. Perkins, 225 Mass. 80, 82. The third paragraph, therefore, was not immaterial and could not rightly have been quashed or expunged as surplusage. Moreover, this paragraph — at least with the particulars furnished upon motion of the.
5. The defendant’s fifth assignment of error is the denial of his motion to quash the complaint for contempt. This was a motion to quash for the reason that the complaint "charges the accused disjunctively, so as to leave it uncertain what is relied on as the accusation against him.” The denial of this motion was not error.
The defendant in the statement of the reason for the motion invoked a rule which was stated in like terms in Commonwealth v. Grey, 2 Gray, 501, 502, as applied to an ordinary criminal case. See also G. L. (Ter. Ed.) c. 277, § 31. So far as this objection relates merely to the form of the complaint (see Commonwealth v. McKnight, 283 Mass. 35, 38) it will not lie to a complaint for contempt since technical accuracy is not required (Woodbury v. Commonwealth, 295 Mass. 316, 323), and so far as this objection relates to the substance of the complaint on the ground that the complaint lacks the requisite certainty it is without merit. The several allegations of acts of the defendant in the course of his conduct constituting the alleged contempt are not mutually inconsistent. A co-conspirator may be the agent of another co-conspirator. Hyde v. United States, 225 U. S. 347, 367-368. And an allegation that the defendant influenced and corrupted jurors is not inconsistent with an allegation that he “did hire, retain and solicit” other - persons to solicit jurors and to give and offer to give them gifts and gratuities with intent to influence their decisions and that these persons did so. Undoubtedly the offence charged was of such a nature that it could have been committed by the defendant through his agents, and the charge that he committed such a contempt would be sustained by proof that he did so through his agents. See Commonwealth v. Park, 1 Gray, 553. But even if the complaint can be read as charging the commission of the contempt by the defendant directly or, in the alternative, by means of his agents, it is not on that account bad
6. The defendant’s seventh assignment of error is the denial of his motion for a jury trial. The motion was denied rightly.
In Root v. MacDonald, 260 Mass. 344, 365, where the contempt had a criminal aspect, the court in enumerating some of the “numerous particulars in which a proceeding for contempt, even when its object and result are wholly punitive, differs from an ordinary criminal proceeding,” stated, as one of these particulars, that “There is no right of trial by jury.” See Walton Lunch Co. v. Kearney, 236 Mass. 310, 317. See also Blankenburg v. Commonwealth, 260 Mass. 369, 373-374. This statement is in conformity with the often quoted statement of Chief Justice Gray in Cartwright’s Case, 114 Mass. 230, 238, that the “summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice is inherent in Courts of Chancery and other Superior Courts, as essential to the execution of their powers and to the maintenance of their authority, and is part of the law of the land, within
The principle embodied in the decisions of this court that a person accused of criminal contempt has no right of trial by jury has been fully recognized — at least apart from statutory provision therefor — by the Supreme Court of the United States. It was said in Eilenbecker v. District Court of Plymouth County, 134 U. S. 31, 36, that “If it has ever been understood that proceedings according to the common law for contempt of court have been subject to the right of trial by jury, we have been unable to find any instance of it. It has always been one of the attributes — one of the powers necessarily incident to a court of justice — that it should have this power of vindicating its dignity, of enforcing its orders, of protecting itself from insult, without the necessity of calling upon a jury to assist it in the exercise of this power.” See also Interstate Commerce Commission v. Brimson, 154 U. S. 447, 488. This statement was quoted by the court in full in Bessette v. W. B. Conkey Co. 194 U. S. 324, 337 — a case “within the punitive rather than the remedial class” (page 330)- — -and in part in Debs, petitioner, 158 U. S. 564, 596-597, in each instance with approval. And in Gompers v. Bucks Stove & Range Co. 221 U. S. 418, 450, the court said in regard to the power to punish for contempt that “There has been general recognition of the fact that the courts are clothed with this power and must be authorized to exercise it without referring the issues of fact or law to another tribunal or to a jury in the same tribunal.” No departure from this view of the law apart from statute, but rather an implied acceptance thereof, is shown in Michaelson v. United States, 266 U. S. 42, 62, 67, where a statute conferring the right of trial by jury in a certain class of contempts was sustained as constitutional, the court saying: “The statutory extension of this constitutional right to a class of contempts which are properly described as ‘criminal offences’ does not, in our opinion, invade the powers of the courts as intended by the Constitution or violate that instrument in any other way.” No question of the validity of a statute purporting to confer such a right
7. The defendant’s eighth, ninth, fourteenth, fifteenth, seventeenth to twenty-second, inclusive, and twenty-fifth assignments of error are refusals to make requested rulings based upon the evidence. In the absence of the evidence which, as already stated, is not part of the record no error is shown. Likewise the defendant’s thirty-sixth, thirty-seventh, thirty-eighth, fortieth and forty-first assignments of error, also relating to the evidence, are without merit.
8. Many of the other assignments of error are refusals to make requested rulings. The rulings requested to which these assignments relate, however, were not necessarily based upon the evidence. Since the result to the defendant will be the same in any event we consider these requested rulings without deciding whether the requests and the disposition of them by the trial judge are properly included in the record and whether the assignments of error relating thereto are properly before us in view of the limitation upon the scope of review by writ of error. See Blankenburg v. Commonwealth, 272 Mass. 25, 36. See also Commonwealth v. McNary, 246 Mass. 46, 48; Commonwealth v. Morgan, 280 Mass. 392, 393.
9. The defendant’s tenth, eleventh, twelfth and sixteenth assignments of error are the refusals of the trial judge to make certain rulings requested defining the nature and scope of contempt. The general purport of the rulings requested is that an act or attempt falling short of actual contact with or influence upon a juror or jurors does not constitute contempt. Under the authority of Hurley v. Commonwealth, 188 Mass. 443 , 447, they did not state the law correctly. See Sinclair v. United States, 279 U. S. 749, 762-763. The defendant contends, however, that there was error in refusing these requests because the refusal thereof was inconsistent with other rulings requested by the defendant and made. The rulings so made covered much, if not all, of the same subject matter as rulings refused and in some respects, at least, were too favorable to the defendant under the
10. The defendant’s thirteenth assignment of error is the refusal of the trial judge to rule that the “defendant has committed no act which itself had the direct and natural effect to obstruct or impede the administration of justice.” So far as this requested ruling is to be construed as based on the evidence the necessary absence of the evidence precludes examination thereof. And so far as it depends upon the facts found by the trial judge and set forth in the order adjudging the defendant in contempt it was clearly incorrect. See Hurley v. Commonwealth, 188 Mass. 443, 447; Sinclair v. United States, 279 U. S. 749, 762-763. Moreover, the refusal of the requested ruling that “corrupting a juror or jurors does not by itself constitute an obstruction to the court in the performance of its duty” — the defendant’s twenty-sixth assignment of error — was right. Such obstruction would be the natural and necessary consequence of “corrupting” a juror or jurors.
11. The defendant’s twenty-third and twenty-fourth assignments of error are the refusals of certain requested rulings to the effect that the defendant in a criminal case is “required” or “bound” to investigate prospective jurors to avoid waiving or being estopped to object to disqualifications of jurors. With respect to these requested rulings the trial judge stated, “Not applicable, as I have already ruled that lawful investigation is proper.” This was not error. The subject was adequately covered by other rulings made at the request of the defendant.
12. The defendant’s twenty-seventh assignment of error is the refusal of the trial judge to rule as requested by the
13. The defendant’s twenty-ninth assignment of error is that the trial judge granted, but did not follow in making his decision, a- number of the defendant’s requests for rulings. The rulings requested and made were, in some respects at least, too favorable to the defendant. But we find nothing in the record showing that they were not followed by the trial judge in making his decision.
14. There is no merit in the defendant’s thirtieth assignment of error that the “facts found by the court do not constitute contempt of court.” We do not understand the defendant to argue this assignment. At any rate it clearly is without merit. The facts found constitute contempt. Hurley v. Commonwealth, 188 Mass. 443. Opinion of the Justices, 301 Mass. 615, 618. The thirty-second, thirty-third, thirty-fourth and thirty-fifth assignments of error — which must be taken as referring to the facts found — for a like reason are without merit. They recite respectively that “No word or act” on the part of the defendant “constituted a contempt,” “hindered the administration of justice” “had a tendency to interfere with the course of justice,” and “warranted a conviction for contempt.”
15. The defendant’s thirty-first assignment of error is that the “sentence and punishment were excessive and unreasonable.” We do not understand the defendant to argue this assignment. But consideration of it discloses no error. Commitment to the common jail was legal. G. L. (Ter. Ed.) c. 220, § 14. Hurley v. Commonwealth, 188 Mass. 443, 448. Kelley, petitioner, 292 Mass. 198, 199. And even if it be assumed that in some circumstances there might be error of law with respect to the length of time for which such a commitment was made that could be reviewed on writ of error (compare New York Central Railroad v. Ayer, 253 Mass. 122, 129) no such error is shown in the present case. With respect to an offence which might reasonably be thought to be less flagrant than that for which the defendant was committed, the court said in Hurley v. Commonwealth, 188 Mass. 443, 447, 448, “This was a very gross
16. The defendant’s thirty-ninth assignment of error is that it “was error for the court to enter a judgment or sentence without setting out sufficiently the facts which were found by the trial judge.” The facts recited in the order adjudging the defendant in contempt were sufficient, as already pointed out, to support the judgment for contempt. The defendant was not entitled as of right to more detailed findings. See Woodbury v. Commonwealth, 295 Mass. 316, 319. See also Hurley v. Commonwealth, 188 Mass. 443, 447.
17. The defendant argues that it was error for the trial judge to deny the defendant’s request that the judge report the case to this court. But no such matter was assigned by the defendant as error and consequently nothing is before us for decision on this point. Assignments of error must be the basis of the defendant’s contentions. Woodbury v. Commonwealth, 295 Mass. 316, 319. The issues between the parties were made by the assignments of error and the Commonwealth’s plea thereto of in millo est erratum. See G. L. (Ter. Ed.) c. 250, § 2. Rule 29 of the Supreme Judicial Court for the Regulation of Practice at Common Law (1926), 252 Mass. 598. Perkins v. Bangs, 206 Mass. 408, 413. Compare Commonwealth v. Zelenski, 287 Mass. 125, 128; Commonwealth v. Ventura, 294 Mass. 113, 125. But even if the matter were open and it were assumed that the trial judge was authorized by G. L. (Ter. Ed.) c. 278, § 30, to report questions of law arising on a prosecution for criminal contempt — a point which we do not discuss — and that a refusal to report could ever be subject to review, no error in this respect is disclosed by
It follows that since the ruling of the single justice was right the exception thereto must be overruled, and since no error is disclosed in the record of the case in the Superior Court the judgment of that court must be affirmed.
So ordered.
The complaint in its third paragraph alleged that “subsequent to March 21, 1938,” the defendant and six other persons “ conspire [d] ... to influence and to corrupt the jurors who had been duly drawn, qualified and subject to service in the trial” of these cases “by soliciting the said jurors with intent wilfully, wrongfully and illegally to influence the decision of said jurors in the aforesaid cases, and by giving and offering to give the said jurors gifts and gratuities, with intent wilfully, wrongfully and illegally to influence the decision of said jurors in the aforesaid cases, and with intent to impede and obstruct the due administration of justice,” and that the defendant and the six other persons agreed mutually to inform each other as to the progress that was being made. The complaint alleged in its fourth paragraph that the defendant “did hire, retain and solicit” five of said persons “to solicit said jurors with intent wilfully, wrongfully and illegally to influence the decision of said jurors in the aforesaid cases, and to give and offer to give the said jurors gifts and gratuities, with intent wilfully, wrongfully and illegally to influence the decision of said jurors in the aforesaid cases, and with the intent to impede and obstruct the due administration of justice,” and that these five persons “did agree to solicit and did solicit said jurors with intent wilfully, wrongfully and illegally to influence the decision of said jurors in the aforesaid cases, and did agree to give and offer to give, and did give and offer to give the said jurors gifts and gratuities with intent wilfully, wrongfully and illegally to influence the decision of said jurors in the aforesaid cases, with intent to impede and obstruct the due administration of- justice.” The complaint further alleged in its fifth paragraph that the defendant and six other persons “did wilfully, wrongfully and illegally attempt to influence and corrupt the decision of said jurors in said cases, as aforesaid, and did influence and corrupt said jurors, as aforesaid; and further did inform each other of the progress and results obtained in their said attempts to influence the decisions of said Jurors, as aforesaid, in their attempts to corrupt said jurors, as aforesaid, and in their attempts to impede and obstruct the due administration of justice, as aforesaid.”
In the answers to the motions for particulars the time and place of the formation of the conspiracy were stated to be on or about March 21, 1938, in Suffolk County, and the other acts were stated to have occurred since March 21, 1938, in said county. It was stated that oral solicitation of the jurors was contemplated, and that the gifts and gratuities contemplated, agreed upon and actually made or offered to the jurors were “money.” It was stated also that the defendant hired, retained and solicited others named in the complaint “by personal contact and contacts through agents and mutual acquaintances,” that the defendant and others named in the complaint agreed to solicit the jurors, gave or offered to give to them gifts or gratuities, and attempted to influence and corrupt their decision substantially by like contacts, and that the decision of the jurors and the arrangement made with jurors receiving gifts or gratuities were for the purpose of influencing their decision to render verdicts of not guilty for the defendant and Quinn. The names of jurors “allegedly solicited,” “allegedly offered gifts or gratuities,” “allegedly influenced and corrupted,” and the names of jurors to whom, according to statements of persons named in the complaint, it was agreed that gifts or gratuities should be given were stated in the answers, together with the further words, in each instance, “and twelve others whose names are unknown to the complainant.” The name of another juror whom the defendant attempted to influence and corrupt was also given.