Com. v. Bessette

• Decision Date: 15 June 1966
• Docket Number: No. 2,2
• Citation: Com. v. Bessette, 217 N.E.2d 899, 351 Mass. 157 (Mass. 1966)
• Parties: COMMONWEALTH v. Rodolphe G. BESSETTE et al. (of 1966).
• Court: Supreme Judicial Court of Massachusetts

Page 899

217 N.E.2d 899

351 Mass. 157

COMMONWEALTH v.Rodolphe G. BESSETTE et al. (No. 2 of 1966).

Supreme Judicial Court of Massachusetts, Barnstable.

Argued April 4, 1966.

Decided June 15, 1966.

Allan M. Hale, Middleboro, for Charles E. Frazier, Jr.

George L. Rabb, Boston, for Rodolphe G. Bessette.

Manuel Katz, Boston, for Harold T. Teti.

Francis W. Keating, Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

CUTTER, Justice.

The defendants Bessette, Frazier, and Teti were charged by indictment, ¹ returned April 10, 1964, with conspiracy to cause the commissioners of the State Department of Public Works(the department) to approve an order for payment for extra work under a dredging contract without compliance with G.L. c. 29, § 20A, inserted by St.1937c. 407.²Motions to quash were filed, asserting that the indictment did 'not state the substantive facts as to any criminal offense'; and that it was 'invalid * * * for want of any allegation of prejudice to the general public or of oppression of any individual.'The motions were denied subject to each defendant's exception.A motion by each defendant to direct a verdict for him was denied subject to his exception.Each defendant was found guilty.The trial was conducted under G.L. c. 278, §§ 33A--33G.³Each defendant appealed, and filed assignments of error.Each defendant has also filed a bill of exceptions in respect of the denial of his motion to quash the indictment.

As background for the discussion of the indictment we summarize certain facts which could have been found from the evidence.Bessette was director of the Division of Waterways(the division) in the department from 1950 to 1962.On October 14, 1958, the commissioners gave authority to advertise a proposed dredging project in Wellfleet harbor.New England Dredge & Dock Company(NEDD) was low bidder on part of the project and was awarded a dredging contract, contract No. 1973.This contract, executed December 30, 1958, provided that certain dredging should be done to obtain a channel and basin with a depth of seven feet below mean low water.The unit price was $1.03 per cubic yard.

About June 7, 1959, dredging had been completed.Teti, NEDD's president, called Bessette to notify him that work was completed and to inform him about 'shoaling,' i.e. trouble caused by other material running in after the dredging and reducing the depth of the dredged area.Bessette told Teti to do some further dredging to prevent the shoaling.This work was an item later included in extra work order No. 2.⁴Teti by letter to Bessette dated June 9, 1959, confirmed the telephone instructions given to him by Bessette.

On June 12, 1959, Bessette and Frazier, who was a selectman of Wellfleet as well as Assistant Attorney General dealing with waterways matters, went to the dredging site.They staked out an area where dredging was to be done to increase the size of an inner basin.One Sheehan, a department engineer, told them this area was too large to be done under an extra work order.The area then was reduced by Sheehan from 16,000 cubic yards to 9,000 cubic yards.This work also was included in extra work order No. 2.

The work was finished on June 16.The dredge departed in July.Shortly thereafter Teti called Bessette to ask when he would be paid for work later included in extra work order No. 2.Bessette thereafter sent a memorandum to the department's commissioners describing the extra dredging theretofore ordered: (a) about 9,700 cubic yards at $1.03 per cubic yard, for increasing the size of the inner basin (roughly the area designated by Sheehan), and (b) the dredging done to prevent shoaling (about 16,000 cubic yards also at a unit price of $1.03).Bessette recommended approval of the order and the commissioners on August 17, 1959, authorized Bessette to give notice of the department's intention to execute an extra work order and to extend the contract completion date to August 31, 1959.The department, on August 17, filed with the comptroller a notice of intention to act upon the extra work order.⁵On August 24, 1959, extra work order No. 2 was issued.

On August 28, the deputy comptroller asked why the work order was issued after the last prior extension date (June 15, 1959).Bessette, on September 1, 1959, sent a letter to the comptroller explaining (1) the extended contract completion date, and (2) the extra work and the reasons for it.⁶On the basis of this letter, payment (less a retained percentage) was approved, and was made to NEDD on September 24, 1959.Final payment was made November 5, 1959.

1.The indictment alleged (see fn. 1) simply a conspiracy 'to have * * * the Commission * * * approve * * * a(n) * * * order for payment for extra work * * * without filing (with the Comptroller) prior to such approval, a notice of intention to act upon such order' which involved more than $1,000 and was 'not * * * necessitated by an extreme emergency.'⁷Although not phrased precisely in the language of G.L. c. 29, § 20A, the indictment was obviously drawn with that section in mind.

In considering the sufficiency of this indictment, it must be remembered that it is of limited scope and does not charge the offences outlined in the other indictments (fn. 3) with which it was tried.It makes no charge that the work covered by extra work order No. 2 was unnecessary, or was done inadequately, or was arranged for the purpose of defrauding the Commonwealth in any manner.

The Commonwealth in its brief does not appear to contend that the object of the alleged conspiracy would have been criminal if accomplished by an individual without any agreement with others to bring about or to participate in the planned objective.The brief refers to no criminal statute which would have been violated if the object of the alleged conspiracy had been carried out completely.In this case, as in Commonwealth v. Bessette (No. 1 of 1966), Mass., 217 N.E.2d 893(hereinafter, for convenience, called the first 1966 Bessette case), the Commonwealth apparently advances the view (a) that the indictment was sufficient because it in effect alleged that the purpose of the conspiracy was to violate or avoid § 20A; and (b) that such a purpose necessarily was 'unlawful' because, if successful, it would involve violation of a statute, even if such a violation has not been made a crime in itself, and despite the circumstance that no criminal or unlawful means were alleged as contemplated.SeeCommonwealth v. Dyer, 243 Mass. 472, 483--490, 138 N.E. 296.

As we have recently pointed out in the first 1966 Bessette case, at p. 217 of 893 N.E.2d, the principles of criminal conspiracy have very limited application where there is no criminality shown either in the object of the alleged conspiracy or in the means by which it is to be accomplished.In cases where effort is made to apply the principles stated in the Dyercase, supra, it must appear that the accomplishment of an unlawful (but not criminal) object by noncriminal means will have serious, injurious effect, of substantial magnitude, upon the public, the public interest, or some individual.(SeeCommonwealth v. Waterman, 122 Mass. 43, 56--57.)

No allegations showing any such serious probable effect of the alleged conspiracy are made in this indictment.There are no averments tending to show that what was stated to be the object of the conspiracy, if carried out, would amount...