Com. v. Donovan

• Decision Date: 11 January 1898
• Citation: 170 Mass. 228,49 N.E. 104
• Parties: COMMONWEALTH v. DONOVAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 228

49 N.E. 104

COMMONWEALTH v. DONOVAN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

January 11, 1898

COUNSEL

F.N. Wier, Dist. Atty., for the Commonwealth.

Elder Wait & Whitman, for defendants Donovan.

B.D O'Connell, pro se.

OPINION

BARKER J.

In this prosecution for bribery, under Pub.St. c. 205, § 9, as amended by St.1891, c. 349, the three defendants have had verdicts of not guilty upon the last two counts of the indictment, and there has been a verdict of guilty against each defendant upon the first count. that count charged James C. Donovan with corruptly giving to a municipal officer a gift or gratuity to influence his vote on a question of removal from office which might come before him in his official capacity, and also charged that the other defendants were accessories to the crime. The second count charged that the purpose of the gift was to influence its recipient to vote "Nay" on the question of removal, and the third count that it was to influence him to refrain from voting. The verdict of not guilty upon the third count was by direction of the court, at the suggestion of the district attorney, but the verdicts upon the first and second counts were rendered in the usual way. The record shows a motion to quash the indictment, filed by the defendant O'Connell, and another motion to quash filed by the two Donovans, a motion filed at the trial by each defendant to direct a verdict of not guilty, a motion by the defendant O'Connell to set aside the verdict, and motions by each defendant for new trial and in arrest of judgment. There are also two bills of exception; the first relating to the overruling of the motions to quash and to the proceedings at the jury trial, including the denial of the motions to order verdicts of not guilty, and the second to the overruling of the motions in arrest of judgment. The record also shows appeals from the overruling of O'Connell's motion to set aside the verdict, and of the several motions for new trial and in arrest of judgment. The first bill of exceptions does not purport to state all the evidence which was before the jury, but the second bill states that all the evidence and facts material to the second bill are contained in the first bill.

The crime of which the defendants were convicted was connected with the questions arising under the charter of the city of Lowell, and the amendments thereto, some phases of which have been already considered by this court. By St.1896, c. 415, all the executive powers vested in the city council were conferred upon the mayor, who proceeded to make appointments to offices which, except for this change in the charter, would have been filled by action of the city council. The mayor's right to appoint was contested, but was finally affirmed in Attorney General v. Varnum, 167 Mass. 477, 46 N.E. 1. While that case was pending a bill restoring the appointment to the city council had passed both branches of the legislature, and was under consideration by his excellency, the governor, on February 19, 1897, when the rescript affirming the mayor's power was sent down in Attorney General v. Varnum. On the evening of that day the mayor made a number of appointments to office, one of which was an appointment of the defendant Edward R. Donovan to the office of city treasurer and collector of taxes, which office was to become vacant on the 1st day of the next April, by the expiration of the term of the then incumbent. On February 20, 1897, the bill restoring the power of appointment to the city council became a law, as St.1897, c. 95. The mayor was a Democrat, and two-thirds of the city council were Republicans; and the question of the removal by the city council of the mayor's appointees of February 19th was at once raised,--the city council having a power of removal, by two-thirds vote in each branch, under St.1896, c. 415, § 2. This court, without considering whether the mayor's appointments of February 19th were valid or not, subsequently held, in Attorney General v. Cahill, 169 Mass. 18, 47 N.E. 433, that removals by the city council, under the section cited, of persons so appointed to office by the mayor on February 19th, were effectual, and that after such removals the city council was authorized to fill such offices under the power restored to it by St.1897, c. 95. When that statute went into effect, on February 20, 1897, one Lang was a Republican common councilman, and so a member of the city council; and the offense charged was the corruptly giving to him of a gift of 10 promissory notes to influence his vote, in his official capacity as such common councilman, upon the question whether Edward R. Donovan should be removed from the office of city treasurer and collector of taxes.

The acts of the defendants which the government relied upon to obtain their conviction were done on February 26, 1897. This was on Friday, and on the evening of the following Monday March 1st, a caucus of the Republican members of the city government was to be held, to determine whether the Republican members of the city council should unite to remove, under St.1896, c. 415, § 2, the mayor's appointees of February 19th, and the question of such removal was a matter of public discussion. On the morning of Friday, February 26th, O'Connell and James C. Donovan drove to Lang's home; and O'Connell had a conversation with Lang, in which O'Connell asserted Edward R. Donovan's fitness for the position to which he had been appointed, and urged Lang to use his influence to secure his retention, saying that it was unfair to attempt to change officials appointed under the charter accepted by the citizens. O'Connell made no offer or suggestion of a bribe, but the evidence tended to show that, at the close of the conversation, Lang said, "Well, as the old saying is, what is there in it for me?" and that O'Connell replied, "That's all right. Have you any objections to see Mr. Donovan?" and, upon Lang's answer in the negative, O'Connell said that Donovan and himself would come to Lang's place and see him. On the other hand, O'Connell testified that in answer to Lang's question, "What is there in it for me?" he replied that he knew nothing about that; and he gave an account of the remainder of the talk, from which it would appear that the appointment for O'Connell and Edward R. Donovan to meet Lang was for the purpose of showing Lang, by a personal interview, that Edward R. Donovan was fit for the office. This appointment was for 10 o'clock in the forenoon, and before that hour Lang consulted with the chairman of the Republican city committee. In pursuance of the appointment, O'Connell and Edward R. Donovan called upon Lang; a witness of the conversation being concealed behind a partition. The evidence tended to show that at this interview the arguments of the morning were repeated, and that Edward R. Donovan said that he would like to retain his position and be kept in office, and that towards the close of the interview, no suggestion of buying or bribing Lang having been made by either O'Connell or Donovan, Lang said, "It will take a good deal of money to buy me." Lang testified that Donovan replied, "Yes; that will be all right. My brother will come and see you," and that O'Connell said, "Have you any objections to that?" to which Lang replied, "No, sir; the brother can come and see me," and that an arrangement was made that James C. Donovan the brother should meet Lang at his store at 3 o'clock. Lang also testified that Donovan and O'Connell agreed that they had better not go out of Lang's store together, and that they left separately. On the other hand, Edward R. Donovan and O'Connell testified that Lang said, "This is worth something to you fellows, isn't it? Well, what is there in it for me?" and that O'Connell replied, "I am a poor man, and cannot offer you anything," and Edward R. Donovan said, "I am in no position to make you any offer;" and they denied that any arrangement was made for the brother to call, or by which they left separately. They further testified that Lang said to see him later, and that he would be there the greater part of the afternoon, and that they told Lang distinctly that what they wanted was his assistance at the caucus to be held the following Monday night. Lang testified that something might have been said about a caucus, but he did not recollect it, and also that Edward R. Donovan said that he would like to retain his position and be kept in office, specifying the office of city treasurer as the one to which he was referring; also, that Lang said, "I don't understand the law points, but the point you want to get at, Mr. O' Connell, you want me to vote for Mr. Donovan, is it not?" and that he answered, "Yes; Mr. Donovan, the appointee of the mayor." About 3 o'clock on the same afternoon, James C. Donovan appeared at Lang's store, where, through the suggestion of the chairman of the Republican city committee, three persons, one of whom was a stenographer, were concealed, who testified that Donovan said that he would like to have his brother Ned kept in office, and that Lang replied that he was a Republican, and it would be fatal to him if he should break from the party; that Donovan said it would blow over; that Lang said it would take a good deal of money to buy him, and Donovan said, "Well, how much?" that, after considerable talk, Lang said it would cost $500, which Donovan refused, and Lang agreed to take $250; that Donovan wanted to know how he would take it, and Lang wanted cash, but, after more talking, agreed to take 10 notes, of $25 each, which Donovan agreed to give him; that Donovan went out, and, after three-quarters of an hour, returned with 10 notes, which he gave Lang, telling him that they were...