Com. v. Smith

• Decision Date: 06 April 1895
• Citation: 163 Mass. 411,40 N.E. 189
• Parties: COMMONWEALTH v. SMITH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 411

40 N.E. 189

COMMONWEALTH v. SMITH et al.

Supreme Judicial Court of Massachusetts, Essex.

April 6, 1895

COUNSEL

W.H. Moody, Dist. Atty., for the Commonwealth.

A Hemenway, W.E. Russell, Dickson & Knowles, H.P. Moulton, and E.B. Fuller, for defendants.

OPINION

ALLEN J.

The conviction was only upon the second count of the indictment. The motion to quash and the motion in arrest of judgment were not argued in behalf of any of the defendants, though they were not expressly waived. No objections to the count have been pointed out. We see no ground for quashing it, or for arresting the judgment.

The defendants object that the evidence was not sufficient to warrant a conviction. The grounds of objection relied on are (a) that no conspiracy between the defendants was proved; (b) that certain of the defendants took no part in any conspiracy; (c) that, if there was a conspiracy, it was not with reference to all four of the aldermen named; and especially that there was no conspiracy to solicit bribes for Tilton.

A conspiracy may be proved by circumstantial evidence, and this is the usual mode of proving it, since it is not often that direct evidence can be had. The acts of different persons who are shown to have known each other, or to have been in communication with each other, directed towards the accomplishment of the same object, especially if by the same means or in the same manner, may be satisfactory proof of a conspiracy. Cars.Am.Cas.Consp. c. 53; Greenl.Ev. § 93; 2 Bish.Cr.Proc. § 227; U.S. v. Cole, 5 McLean, 513 Fed.Cas. No. 14,832; State v. Sterling, 34 Iowa, 443; Archer v. State, 106 Ind. 426, 7 N.E. 225. The order of introducing the evidence is within the discretion of the presiding judge. 3 Greenl.Ev. § 92; State v. Winner, 17 Kan. 298; Bloomer v. State, 48 Md. 521; State v. Jackson, 82 N.C. 565; Cars.Am.Cas.Consp., ubi supra.

An examination of the testimony, which is reported to us in full, satisfies us that the jury was warranted in finding that there was a conspiracy to solicit bribes for aldermen; that all the defendants took part therein; and that the purpose was to solicit bribes for the four aldermen named in the indictment. There being prima facie evidence of a conspiracy, the participation of each defendant therein may be shown by his own acts and declarations during the existence of the conspiracy; and these same acts and declarations may also tend to establish the conspiracy itself.

The testimony which was relied on by the prosecuting officer tended to show the following state of things: The defendant Smith was a wholesale dealer in liquors in Boston, with customers in Haverhill, at which place the defendant Kimball was his agent. The other four defendants, Tilton, Cate, Ham, and Hoyt, were aldermen of Haverhill. There were in all seven aldermen, but there was no charge or evidence against the other three. The whole number of licenses to sell liquors which could be granted in Haverhill was 27. The licenses would date from May lst. On April 16, 1894, 15 licenses were granted, and on April 27th, 12 more. The whole number of applications for licenses was 41. Prior to March 6, 1894, when it is contended that the conspiracy was first entered into, the defendant Kimball knew all of the four indicted aldermen. Smith was well acquainted with Tilton, had perhaps met Cate once or twice, though he did not remember having done so, and did not know Ham or Hoyt. One evening, Tilton mentioned to Kimball that he was going to Boston the next day, and Kimball said he would go down with him, and take him out to dinner. They accordingly went, the date being March 6th. Tilton, seeing Cate and Ham in Boston, invited them to the dinner, and they were to come for him to the store of the defendant Smith. Tilton also met McDonald, a licensed liquor dealer of Haverhill, and a customer of Smith, on the street, and they went together to Smith's, and after a while Cate and Ham came there also. Kimball was already there; and the six went to an hotel in which Smith was interested, remained for over three hours, dined there, and took a carriage for a drive. McDonald left them for a time at 6:30 p.m., and afterwards met them at another hotel, at 10 p.m., where all had a lunch (as it was called) at Tilton's expense, and all but Smith went home together in a late train. Cate testified that the subject of licenses was mentioned, and that Smith tried to pump him. It did not appear that they had any other subject of common interest. On April 13th Smith sent some liquors to Tilton, to Cate, to Ham, and to Hoyt; his purpose and object, as he testified, being that of good fellowship, and to get their good will. Kimball knew that the liquors were sent, and the four aldermen all accepted them. On April 14th the four aldermen, without having been sent for, went to visit the mayor, at a place four or five miles from Haverhill, and they all met there. A meeting of the aldermen was called for April 16th. Six aldermen were present, and, on motion of Tilton, it was voted by the four indicted aldermen to grant licenses, the mayor and two aldermen opposing. A question arose as to acting upon a part only of the applications for licenses. One alderman (Pinkham) objected to doing this, because it would look like putting up a bid for the rest. That course, however, was adopted, the four indicted aldermen voting for it; and it was voted, on motion of Ham, to grant not exceeding fifteen licenses at that meeting. Fifteen licenses were accordingly granted. The defendant Smith was in Haverhill on that day, and was in the city hall at the time of the meeting of the aldermen. Kimball was also there. Smith told Cate and Tilton who his customers were, and that, if they could do anything for him, he should appreciate it. He also told one Dearborn before the meeting that the aldermen would vote that night on some of the licenses. Before that date, these four aldermen had met Kimball at a supper at a restaurant in Haverhill, and three of them had also met him on another evening at the same place. On the evening of April 16th, the six defendants were all together at another restaurant, the proprietor of which had that day received a license. The foregoing evidence had a tendency to show an intimate and suspicious companionship of the defendants and some common purpose, before and on the day when licenses were first granted.

Cate testified that, after the first lot of licenses were granted there was a good deal of public talk and excitement in Haverhill, and that he had heard Smith's name mentioned a few times in connection with the granting of licenses. On or about April 21st the defendants Cate, Ham, and Hoyt went together to Boston, by Smith's invitation, and in the evening visited the Italian quarter of the city, and had a supper with Smith, who had got an officer to go with them. This had a tendency to show that the common purpose, at least so far as those four were concerned, was still continuing. In order to show that this common purpose was the same that was charged in the second count of the indictment, testimony of acts and declarations of the several defendants was relied on, as follows: Before April 16th Smith and Kimball both said or intimated to Leighton, who was an applicant for a license, that he would have to pay money in order to get it; that he had better see others of the aldermen besides Pinkham and Croy. Smith told him that it would cost him $200 for his license, and told him "to get a hustle on, and go and see the aldermen," and that the money was to be paid to Smith. No license having been granted to Leighton on April 16th, Kimball advised him the next day to go to Boston, and see Smith, which he did, and Smith told him he would have to "see those aldermen, and settle to get a license," and to go and see Hoyt without fail. Leighton went the next morning to see Hoyt, who intimated that he wanted money, and told him that whatever Smith said was all right. Leighton, within a day or two, told this at Haverhill to Smith, who said he would go down town and see what he could do for him, and, if he couldn't do anything, Leighton was to have a couple of hundred dollars in money ready for him when he came back. Porter C. Croy testified that, between April 1st and 10th, Kimball told him that his brother, Alderman Croy, must be a damn fool, when he might as well get $400 or $500 out of it as nothing. The witness asked him: "Haven't you got votes enough now?" Kimball told him, in substance, that he had, and that he had got Aldermen Cate, Ham, Tilton, and Hoyt fixed up. Being asked where he was going to get the money to pay the $400 or $500 to witness' brother, Kimball replied: "I will take care of that." Connolly testified that, between the granting of the first lot of licenses and the second, he told Smith that he would like to have a license. Smith told him the boys were getting up a pool to carry on the campaign next fall, to have the city vote in favor of licenses, and that $500 should be paid by Connolly, and afterwards told him that he would let him down for $200, and that, if he paid $200, he should have a license. Bourque testified to a conversation with Tilton, between the granting of the first lot of licenses and the second. Bourque was interested to get a license for one Roque, and told Tilton there was a rumor that money was needed to get the licenses. Tilton said he did not know, and, at any rate, he would not take any money from anybody for his vote; he would find out, and, if there was anything new, he would let Bourque know. Afterwards, before April 27th, Tilton told him they were all bidding for to get their licenses, and he told Bourque to see Roque, and tell him it would require $200 for his license. "If he gives you...