Com. v. Kelley
| Decision Date | 29 June 1970 |
| Citation | 260 N.E.2d 691,358 Mass. 43 |
| Parties | COMMONWEALTH v. John J. KELLEY, Jr. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thomas E. Dwyer (John L. Murphy, Jr., Boston, Mass., with him) for defendant.
Marvin R. Finn, Sp. Asst. Atty. Gen., for the Commonwealth.
Before WILKINS, C.J., and SPALDING, CUTTER, REARDON, and QUIRICO, JJ.
The defendant has been tried, found guilty and sentenced on an indictment charging him with the crime of conspiracy. Sentence has been stayed by the trial judge pending our decision on questions reported by him on the sufficiency of the indictment. Further questions are raised on the defendant's bill of exceptions but are not yet before us. 1
The indictment charged that: 'John J. Kelley, Jr. and Highway Traffic Engineers, Inc., a Massachusetts Corporation, at Boston and at divers other places to the grand jurors unknown, did conspire together and with William F. Callahan, now deceased, who was then an executive officer of the Commonwealth to wit; the Chairman of the Massachusetts Turnpike Authority, a body corporate and politic, organized under * * * (St.1952, c. 354), and with Edgar P. Copell and Thomas D. Connolly, all of whom are named herein as co-conspirators, but not as defendants, to use the economic power of the said Massachusetts Turnpike Authority, over which the said Callahan exercised executive control, to cause to be paid to the said Kelley, who was then the son-in-law of the said Callahan, large sums of money to which he was not entitled by the following means: by causing the award of contracts by the said Massachusetts Turnpike Authority to the said Highway Traffic Engineers, Inc., to be conditioned upon the said Kelley being paid a salary by the said Highway Traffic Engineers, Inc., and by Denman Electronics Corp., and Highway Equipment Co., Inc., both Massachusetts corporations controlled by the said Copell and the said Connolly, for which the said Kelley was to do no work, and upon the said Kelley becoming the owner of one-half of the outstanding common stock of the said Highway Traffic Engineers, Inc., and one-third of the common stock of the said Denman Electronics Corp. and the said Highway Equipment Co., Inc.; by the request and acceptance by said Callahan of a promise to do an act beneficial to him under an agreement and with an understanding that the vote, opinion and judgment of the said Callahan would be given in a particular manner and on a particular side of a question, cause and proceeding, which was or might be by law brought before him in his official capacity, and as consideration for speech, work and services in connection therewith; and by means of stealing money of the value of more than $100 of the property of the said Massachusetts Turnpike Authority, said money then being in the custody and control of the First National Bank of Boston as trustee.'
The questions reported to this court for decision are:
The meaning of the first or principal question reported, whether the indictment was sufficient in the absence of any evidence of larceny, is not entirely clear to us. The indictment does not charge the defendants with the crime of larceny. It charges that they entered into a conspiracy 'to use the economic power of the * * * Massachusetts Turnpike Authority to cause to be paid to the said Kelley, * * * large sums of money to which he was not entitled' by several means alleged in the indictment. One of the means alleged was by stealing money of the Massachusetts Turnpike Authority (Authority). It is not clear whether the question is directed to the sufficiency of the indictment or to the sufficiency of the evidence presented at the trial. The sufficiency of the indictment is to be determined by a reading of its language. It expressly includes the stealing of money of the Authority as one of several means of using the economic power of the Authority to cause Kelley to be paid money to which he was not entitled. It is an 'elementary rule of criminal pleading' that '(w)here a crime can be committed in any one of several ways, an indictment properly charges its commission in all those ways, using the conjunction 'and' in joining them.' Commonwealth v. Dowe, 315 Mass. 217, 219--220, 52 N.E.2d 406. The sufficiency of the indictment does not depend upon whether evidence of larceny is presented at the trial.
We are faced with a very limited record which makes it difficult to answer the question on the assumption that it was intended to relate to the sufficiency of the evidence. The record states that there was no evidence of larceny by the defendant, 2 but it does not state what evidence was presented. The defendant was not charged with larceny and the Commonwealth was not required to prove larceny. The reference to larceny from the Authority was included in the statement of the several means by which the defendants were to accomplish the object of the conspiracy. If the object of the conspiracy is an end which would be accomplished by any of the several means alleged, the Commonwealth was not required to prove all such means. It is sufficient if the evidence established any of the means alleged. Commonwealth v. Albert, 310 Mass. 811, 820, 40 N.E.2d 21; Commonwealth v. Beal, 314 Mass. 210, 224, 50 N.E.2d 14; Commonwealth v. Dowe, 315 Mass. 217, 220, 52 N.E.2d 406. The report does not state whether the evidence was sufficient to establish one of the several means other than larceny by which it is alleged the defendants were to accomplish the object of the conspiracy, but the only way in which we can give meaningful answers to the questions reported is by assuming that the evidence was sufficient for that purpose.
The second question reported, perhaps as subsidiary to the question already discussed above, is The indictment does not charge a conspiracy to bribe. It charges...
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Com. v. Kelley
...pending his report to this court of questions on the sufficiency of the indictment. Those questions were answered in COMMONWEALTH V. KELLEY, MASS., 260 N.E.2D 691.A 1 The exceptions relate to (1) denial of the defendant's motion to quash the indictment, (2) the trial judge's ruling that a p......
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Department of Community Affairs v. Massachusetts State College Bldg. Authority
...of "public agency." See Wolfe v. Massachusetts Port Auth., 366 Mass. 417, 420-421, 319 N.E.2d 423 (1974); Commonwealth v. Kelley, 358 Mass. 43, 48-49, 260 N.E.2d 691 (1970); Massachusetts Turnpike Auth. v. Commonwealth, 347 Mass. 524, 527-528, 199 N.E.2d 175 (1964); Finance Comm'n of Boston......
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Com. v. Gill
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Com. v. Snow
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