Com. v. Monahan
| Decision Date | 03 May 1965 |
| Parties | COMMONWEALTH v. Joseph W. MONAHAN, Jr., et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Monroe L. Inker, Boston, for Joseph W. Monahan, Jr.
Gael Mahony, Sp. Asst. Atty. Gen. (William B. Dockser, Sp. Asst. Atty. Gen., with him), for the Commonwealth.
John D. O'Reilly, Jr., and Matthew L. McGrath, Jr., Boston, for Francis W. Kiernan, submitted a brief.
Before WILKINS, C. J., and SPALDING, KIRK, SPIEGEL, and REARDON, JJ.
The defendants Francis W. Kiernan (Kiernan) and Joseph W. Monahan, Jr. (Monahan) were convicted on indictments charging them with larceny from the Massachusetts Parking Authority (Authority) and with conspiracy to commit such larceny. The cases were tried under the provisions of G.L. c. 278, §§ 33A-33G, as amended, and are here on appeals and assignments of error by Monahan, and by report under G.L. c. 278, § 30, as to Kiernan.
1. The only question raised by the report is whether the evidence was sufficient to warrant submission of the case to the jury. The same question is raised by Monahan's sixty-fifth assignment of error regarding the denial of the motion for directed verdicts. Our consideration of the question requires that we set out the pertinent evidence.
By St.1958, c. 606, the Authority was created as an independent body the essential functions of which were to build, operate and maintain a garage for motor vehicles under Boston Common. It was granted the general powers necessary to accomplish its purposes, including the powers to 'issue Common garage revenue bonds of the Authority,' to 'make and enter into all contracts * * * necessary or incidental to the performance of its duties,' and to 'employ consulting engineers.' St.1958, c. 606, § 5(f), (l) and (m). Under § 8 of the act the Authority was authorized 'to provide by resolution * * * for the issuance of Common garage revenue bonds of the Authority for the purpose of paying * * * the cost of the project,' the proceeds of which 'shall be used solely for the payment of the cost of the project, and shall be disbursed in such manner and under such restrictions, if any, as the Authority may provide in the resolution authorizing the issuance of such bonds or in the trust agreement hereinafter mentioned securing the same.' The Authority could in its discretion, under § 9 of the act, secure the bonds by a trust agreement with a corporate trustee with such provisions 'as the Authority may deem reasonable and proper for the security of the bondholders.'
During a period of several years prior to Monahan's appointment to the Authority in 1959, Monahan and Kiernan 'had a close association.' They referred business to each other whenever they had the opportunity to do so. In 1957 or 1958, Kiernan formed a partnership for the purpose of performing architectural work. At Kiernan's suggestion, the partnership hired Monahan to promote architectural business for it, and, from November, 1959, to May, 1961, while Monahan was a member of the Authority, the partnership paid Monahan about $11,600. In 1958 Kiernan had also become associated with Muzzillo and Tizian. 1 Late in 1959, Kiernan told Tizian that an underground garage was 'being contemplated,' that 'it would be a sizable project, and that he felt * * * [Muzzillo and Tizian] had a good chance of getting it.' Approximately in the middle of February, 1960, Kiernan told Monahan that he (Kiernan) 'would like to do some work on the Boston Common Underground Garage.'
On February 23, 1960, the Authority met and adopted a series of resolutions, signed by Monahan and the other members of the Authority. One of them, the bond resolution, created a special trust fund that was to be 'deposited with and held by the Construction Fund Trustee,' designated to be The First National Bank of Boston (First National), and to be 'held in trust and applied only for the payment of the cost of the Project.' First National under this resolution could make payments only upon the filing by the Authority of '(A) a requisition, signed by an authorized Officer of the Authority, stating in respect to each payment to be made: (1) the item number of the payment; (2) the name of the person to whom payment * * * [was] to be made; (3) the amount to be paid; (4) the purpose, by general classification, for which the payment * * * [was] to be made; (5) that obligations in the stated amounts * * * [had] been incurred by the Authority, and that each item thereof * * * [was] a proper charge against moneys in the Construction Fund * * *' and
The resolution also delineated the duties of the construction engineer, who would be retained by the Authority during the time required for the planning and construction of the underground garage. These duties included the approval and certification of requisitions; the preparation of progress reports; the approval of plans, specifications and construction contracts; and the supervision of the construction of the garage. A third resolution provided that Muzzillo and Tizian be designated construction engineer. On the same date, Kiernan (purportedly acting for Muzzillo and Tizian) and the members of the Authority, including Monahan, signed a contract which provided that Muzzillo and Tizian would perform the duties of construction engineer for $12,500 a year. The Authority also adopted a resolution authorizing and approving a contract with The Foundation Company for the construction of the garage at the price of $7,500,000. The contract attached to this resolution bore Kiernan's signature following the words 'Within contract hereby approved, Muzzillo and Tizian.'
On March 25, 1960, and on April 19, 1960, Tizian sent letters to Kiernan, stating that he (Tizian) had not yet seen the contract of February 23 between the Authority and Muzzillo and Tizian and that he would like to see it. By checks dated April 18, 1960, and May 13, 1960, Kiernan received $20,828 from the Authority's construction fund, and deposited the amounts in his personal account at the Everett National Bank. These transactions were unknown to Tizian. In May or June, 1960, Kiernan finally showed a copy of the February 23 contract to Tizian, who objected to it on a number of grounds, two of which were that the contract was 'backdated' to February 23 and that Kiernan was unauthorized to sign it as a partner.
In August, 1960, stationery with a Muzzillo and Tizian letterhead thereon was printed for Kiernan. Sometime thereafter he arranged for a letter addressed to the Authority to be typed on this stationery, dated February 15, 1960, containing a proposal for review of plans and specifications prior to construction for a total payment of $12,500.
In the fall of 1960, Kiernan told Tizian that the contract relating to the construction engineer had been awarded to another firm. As far as Tizian knew, the relationship between the Authority and Muzzillo and Tizian ended at this point. By this time, Kiernan had received a total of $93,188 from the Authority, none of which was paid over to Muzzillo and Tizian. He asked Tizian to destroy the copy of the February 23 contract with the Authority, but Tizian refused to do so.
In December, 1960, stationery with a Muzzillo and Tizian letterhead thereon was again printed for Kiernan. 2 Sometime thereafter, he arranged for another letter, dated March 28, 1960, to be typed on this stationery, stating a proposal which was identical with the terms of a contract between the Authority and Muzzillo and Tizian also dated March 28, 1960, and signed by Kiernan and Monahan, to the effect that Muzzillo and Tizian would perform the services of construction engineer for a price equal to 4 1/2% of the total construction cost. If the $7,500,000 contract price for construction were not increased by extras or by a bonus, the minimum payment to the construction engineer under the 4 1/2% contract would be $337,500. The Authority's minutes of its meeting of March 28, 1960, show that all of the members, including Monahan, voted to approve the 4 1/2% contract, and both Kiernan and Monahan testified that it was authentic and was approved by the Authority on March 28, as the minutes recite. However, Tizian never saw the contract before March, 1962; and during the semiannual (June 30 and December 31) audits of the Authority's books, the Authority's accountant never saw the 4 1/2% contract or any reference thereto in the minutes of any of the Authority's meetings. Furthermore, at a meeting of the Authority on July 10, 1961, attended by both Kiernan and Monahan, a budget estimate was read indicating that the total amount to be paid under the construction engineer's contracts was $250,000. 3 Nevertheless, on December 31, 1961, the accountant in his financial report to the Authority stated that the construction engineer had been credited $346,756, a figure which represented the amounts which had been paid to the construction engineer plus the amount on a list of payables confirmed and sent to the accountant by Kiernan. It was not based on a computation by the accountant of 4 1/2% of the construction cost, which would have resulted in a figure of $345,717. On January 29, 1962, the Authority, including Monahan, approved the report. On February 27, 1962, Kiernan told Tizian's secretary that the construction...
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