Com. v. Giles

• Citation: 353 Mass. 1,228 N.E.2d 70
• Parties: COMMONWEALTH v. Frank S. GILES.
• Decision Date: 22 June 1967
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 70

228 N.E.2d 70

353 Mass. 1

COMMONWEALTH v. Frank S. GILES.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 3, 1966.

Decided June 22, 1967.

Donald J. Cregg, Lawrence (Frederick W. Murdock, Jr., Lawrence, with him) for defendant.

Samuel Hoar, Jr., Sp. Asst. Atty. Gen. (Warren K. Kaplan, Asst. Atty. Gen., with him), for the Commonwealth.

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

CUTTER, Justice.

A Superior Court judge, sitting without a jury, found the defendant guilty on an indictment in two counts alleging perjury before the Crime Commission (Res.1962, c. 146). He imposed a sentence to the House of Correction and a fine on the first count and a concurrent sentence to the House of Correction on the second count. The case has been before us once before on certain issues of law. Commonwealth v. Giles, 350 Mass. 102, 113, 213 N.E.2d 476 ('the first Giles case'). ¹ The complete stenographic transcript of the trial (held under G.L. c. 278, §§ 33A--33G, as amended) is now before us. Various errors are assigned.

THE INDICTMENT.

The indictment may be summarized as follows (emphasis supplied). Count 1 charged that before the commission 'the question was asked in substance and effect whether * * * Giles had any connection with * * * Nessex Engineering Company (Nessex) in the period of time since it was formed to the present and to this * * * Giles did willfully * * * testify * * * in substance * * * that he had no personal or financial connection with Nessex * * * well-knowing that his * * * testimony was false.' Count 2 charged that the defendant was asked whether he 'had ever received any amounts of money from Nessex * * * and to this the * * * (defendant) did willfully * * * testify * * * in substance * * * that he had never received a salary or commission or money from Nessex for any other purpose * * * than a loan, well-knowing that his said testimony was false.'

THE 1964 HEARING.

On October 11, 1963, the commission's counsel by letter gave the defendant an 'opportunity to appear voluntarily at a hearing' concerning Nessex and Stuart Engineering Company (Stuart). Giles, after consulting counsel, did not appear.

Later Giles talked with the Attorney General. As a result, he received a letter dated January 31, 1964, from the Attorney General enclosing a copy of a letter of the same date from the commission's chairman to the Attorney General, which began (emphasis supplied), 'You told me yesterday that Commissioner Giles has requested an opportunity to explain to the Crime Commission his activities with respect to the survey companies that the Commission has investigated. The Commission will arrange a hearing at which he may appear voluntarily.' ²

On February 5, 1964, the defendant (against the advice of his counsel) appeared voluntarily before the Crime Commission. His counsel accompanied him. He was warned of his constitutional rights, was sworn, and was told that the commission had 'been conducting an investigation of * * * Nessex * * * (and) Stuart.' He was then given an opportunity to make 'some statements' concerning the two corporations. ³

The following questions were asked and answers given (emphasis supplied). Q. 'With reference to Nessex * * * I wonder if you could tell us what your connection with that company was, if any, in the period of time since it was formed to the present?' A. 'I have had no personal or financial connection with Nessex * * * from the day it was formed to the present.' Q. 'Have you had any communications or dealings of any nature with Nessex * * * ?' A. (conference with counsel) 'I have not personally, no, not as an individual, no.'

At a later stage in the hearing, the defendant was asked (emphasis supplied): Q. 'At any point between the formation of Nessex and the present time, did you receive any amounts of money from Nessex? A. I have never received a salary or commission or money from Nessex for and other purpose other than a loan which I have received * * * from Nessex.' This answer (p. 33 of commission hearing transcript) should be read with a subsequent answer (p. 65--emphasis supplied): Q. '* * * is (it) your feeling that at no time did you indirectly get any funds from Nessex * * *?' A. 'That is absolutely so.' ⁴ The defendant told the commission that in 1956, he borrowed from Nessex for a short term with interest an amount which had been paid back and that he had made loans to Nessex on similar terms to enable 'them to meet their payroll.'

Apart from the answers mentioned above, Giles in answer to specific questions by the commission's counsel, made statements disclosing certain relations with Nessex. A summary of the principal points in these statements follows.

'(A)s an individual and as a member of the General Court,' the defendant had shared with Nessex an office in Lawrence 'where * * * (he) met * * * constituents.' The defendant paid rent to Nessex. The then president of Nessex, one MacLeod, had formerly worked for the defendant at a drive-in theatre. He had started selling candy and became manager. MacLeod at some time left Nessex. The defendant left the theatre in 1957, and thereafter, apart from his service with the Commonwealth (as a member of the Legislature from 1947 to 1961 and later as Commissioner of Public Safety), was employed only by Stuart. Before Nessex was incorporated (July, 1954), the defendant talked with persons later connected with Nessex, including MacLeod, about whether the defendant 'could be of any value * * * in getting some work from the Commonwealth.' Later the defendant investigated this possibility with the Commissioner of Public Works, who referred him to the Supervisor of Surveys. As representative, he discussed the payment of bills owed by the State to Nessex with a man in the Department of Public Works. Nessex once had offices in premises in Methuen which the defendant had sold to Nessex.

Mrs. Giles, for less than a year prior to her marriage in 1956 to the defendant, had worked for Nessex. She continued to do so until 1958. The defendant's son 'was trained first with Nessex' and worked for Nessex until 'our own office (apparently Stuart) was set up * * * after he became a graduate engineer.'

The defendant said Stuart was formed because his son (who became 'qualified to go out on his own') did not get on with MacLeod and because Stuart wanted to do work for 'more specialized people' than the State at higher rates than the State would pay. The defendant described Stuart as 'my family corporation.' It was formed in 1957 by his son (a registered engineer), the defendant's wife, and one Stramondo. Since 1957 the defendant had been 'affiliated with that company * * * and * * * on and off the payroll.' Stuart, he said, 'performed independent surveys * * * did subcontract work and rented men and equipment to other survey companies * * * and carried on a general survey * * * (and) civil engineering business.' He never had owned stock in Stuart, and had 'no actual control over Stuart.'

Stuart first had an office in Lawrence, but later moved its office to the defendant's house in Methuen. Stuart never performed any work for any State agency (but the defendant said that he did not regard Massachusetts Turnpike Authority as a State agency). Stuart did furnish Nessex, on a per diem basis, men, transportation, and survey equipment. Employees of Nessex worked for Stuart and vice versa. These services were paid for by 'billings between the two companies every two weeks or every month.' One Brennan, who took over the Newton office of Stuart, carried on surveys of Massachusetts great ponds (see St.1958, c. 434, p. 274) and 'we (apparently Stuart) sublet some men and some equipment to him.' The defendant on one occasion 'may have been present and may have * * * talked' with 'Nessex and Stuart employees together' about certain union and health and accident insurance matters. Nessex was then 'doing sub work for' Stuart. '(T)hey were * * * contemplating going into the health and accident insurance together, and there weren't enough in one company to to go ahead with it.' The men 'were being transferred back and forth' and 'had mutual problems.' At the time the defendant testified, one Mahoney, then president of Nessex, was working for Stuart, and Nessex had 'some rental equipment and property' but no personnel. Giles and his counsel stated that the books and records of Stuart, then in the possession of Giles' accountant, would be made available to the commission.

THE EVIDENCE BEFORE THE TRIAL JUDGE.

At the outset of the trial of the indictment (which lasted from February 1 through 9, 1965) the Commonwealth introduced the whole stenographic transcript (eighty-eight pages) of the 1964 hearing before the commission. There was evidence of those facts about Nessex and Stuart, already summarized above, which Giles had disclosed to the commission in 1964 in answer to questions by the commission's counsel. ⁵ There also was testimony ^{6 6} on matters either not disclosed, or much less completely disclosed, before the commission. Certain other items separately were not of as great importance. ⁷

An accountant, who had examined the records of Nessex, Stuart, Massachusetts Turnpike Authority, the Metropolitan District Commission, and the Department of Public Works testified (i) that, from January 1, 1958, to June 30, 1962, Nessex received from the Commonwealth and the Turnpike Authority a total of $285,522.59, more than sixty-eight per cent of Nessex's gross receipts for the period, ⁸ and paid to Stuart (for the use of survey teams furnished by it to Nessex) $126,646.28; and (ii) that from January 1, 1958, to October 31, 1962, Stuart paid the defendant in wages and bonuses $47,625 (bonus total $21,500) and paid Mrs. Giles $17,545 (wages $15,545, bonus $2,000). Nessex paid her $5,300. For a day's work by a four-man survey party Nessex would receive from the State 'pretty...