Com. v. Chagnon
| Decision Date | 02 June 1953 |
| Citation | 113 N.E.2d 50,330 Mass. 278 |
| Parties | COMMONWEALTH v. CHAGNON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Ephraim Martin, Asst. Dist. Atty., Cambridge, for the Commonwealth.
Robert H. Beaudreau, Belmont, for defendant.
Before QUA, C. J., and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.
This defendant was found guilty upon on indictment 1 charging in effect that he and one Mooney conspired to commit the crime of registering bets on the results of horse races. After having waived a jury, he was tried by a judge, found guilty, and sentenced. It does not appear that Mooney has ever been arraigned or tried.
The case comes here upon the defendant's exceptions to the denial of his motion for a 'finding for the defendant,' to the denial of certain of his requests for rulings, and to the admission of evidence.
The material evidence may be summarized as follows: The defendant over a period from January 3, 1950, to June 25, 1951, caused to be sent to one 'Jno Mooney East St. Louis, Illinois,' approximately 347 telegrams with money orders aggregating about $30,121.89. They were sent from an office of the Western Union Telegraph Company, hereinafter called the company, in Hudson at the request of and for the defendant by one Fahey, the manager of that office. Original records of these telegrams and money orders were in evidence. They were all in Fahey's handwriting and were sent in the name of Paul Adams, an alias used by the defendant. They were all sent as bets on the results of horse races in various parts of the United States and Cuba. The defendant furnished the money to make these bets. The method of making such bets was to write out a telegram accompanied by a money order for the amount bet upon a horse and send it to Mooney. The following sample is illustrative of the practice, 'Mr. Kilroy [name of horse] 40-0-0,' meaning $40 on the horse to win and nothing for finishing second or third. Acknowledgment of receipt of the telegrams and money orders was sent by telegraph to Mooney to the defendant under the name of Paul Adams. The defendant under the same alias received from Mooney during the same period approximately 77 telegraphic money orders for about $26,796.75 which could have been found to be winnings. These were all indorsed by the defendant and in most instances were cashed by him at the company's office in Hudson. Questioned by the chief of police of Marlboro the defendant said nothing more than that he knew Mooney was a 'bookie' and that he had placed a bet with him once in a while in 1944 and 1945. When arrested on October 9, 1951, the defendant had on his person a telegram from Mooney to him quoting odds on the results of football games.
At the close of the evidence the defendant filed a motion for a 'finding for the defendant,' which was denied, and certain requests for rulings of which the following were refused. The motion has no standing as such and we do not consider it for any purpose because the requested rulings which were denied properly raised the question whether the evidence was sufficient to warrant a conviction. We are of opinion that at least request numbered 2 should have been granted and that as a result the defendant should have been acquitted.
The familiar and classic description of what constitutes criminal conspiracy in this Commonwealth was set forth by Chief Justice Shaw in Commonwealth v. Hunt, 4 Metc. 111, where at page 123 he said, Compare Commonwealth v. Waterman, 122 Mass. 43, 57. This general principle was affirmed in Commonwealth v. Dyer, 243 Mass. 472, where at page 485, 138 N.E. 296, at page 303, it was said, 'It is the consensus of opinion that conspiracy as a criminal offense is established when the object of the combination is either a crime. or if not a crime, is unlawful, or when the means contemplated are either criminal, or if not criminal, are illegal, provided that, where no crime is contemplated either as the end or the means, the illegal but noncriminal element involves prejudice to the general welfare or oppression of the individual of sufficient gravity to be injurious to the public interest.' From these descriptions of elements necessary to establish the crime of conspiracy it follows that a conspiracy, agreement, or combination to do an act which is not criminal or unlawful as prejudicial to the general welfare, by means which are not criminal or unlawful, is not an indictable offense.
At the outset of our consideration of this case we must examine the indictment itself and the position taken by the Commonwealth in connection with it. The Commonwealth in its brief and at the oral argument contended that the conspiracy of which the defendant was found guilty was one to violate G.L. (Ter.Ed.) c. 271, § 17. 2
No violation of that part of section 17 emphasized in the margin is alleged in the indictment, and nowhere in the evidence can be found any suggestion that either the defendant or Mooney did anything violative of that part of section 17. We do not therefore consider it as relevant.
The indictment significantly does not allege a conspiracy to violate section 17 as such but merely alleges a...
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...personations and representations). 6 See also Commonwealth v. Stuart, 207 Mass. 563, 569--570, 93 N.E. 825. Cf. Commonwealth v. Chagnon, 330 Mass. 278, 281, 113 N.E.2d 50. Bessette argues that these general principles have not been broadly applied in Massachusetts in recent years. He in eff......
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