Commonwealth v. Albert

• Decision Date: 06 November 1940
• Citation: 307 Mass. 239,29 N.E.2d 817
• Parties: COMMONWEALTH v. CHARLES S. ALBERT. SAME v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 239

29 N.E.2d 817

COMMONWEALTH v. CHARLES S. ALBERT. SAME v. SAME.

Supreme Judicial Court of Massachusetts, Hampden.

November 6, 1940

May 6, 1940.

Present: FIELD, C.

J., LUMMUS, DOLAN COX, & RONAN, JJ.

Bribery. Public Officer.

Municipal Corporations, Officers and agents. Pleading, Criminal, Bill of particulars. Words, "Personally interested.

"

An indictment charging an offence in the general language of a statute, and the proof thereunder, are limited by a bill of particulars specifying the method and means by which the offence was committed.

An indictment alleging, as limited by a bill of particulars, that the defendant, a member of a municipal board in charge of awarding a contract, in violation of G. L. (Ter. Ed.) c. 268 Section 8, requested a bidder to do a certain act in consideration of the defendant's voting to award the contract to him, was not proved by evidence that, on request made by the defendant for the first time after the board had awarded the contract to the bidder, he agreed to do such act in consideration of the defendant's signing the contract.

The words "personally interested" in G. L. (Ter. Ed.) c. 268 Section 10, mean interested in a pecuniary or proprietary sense. Per RONAN, J.

Evidence merely that, after a city board had awarded a contract, a member of the board requested the contractor to secure his required performance bond through a certain broker, whereupon an arrangement was made and carried out that another broker through whom the contractor wished to secure the bond should pay his entire commission thereon to the first broker, did not warrant conviction under an indictment charging the board member with being "personally interested" in the contract in violation of G. L. (Ter. Ed.) c. 268, Section 10.

TWO INDICTMENTS, found and returned on September 25, 1939. The cases were heard by Giles, J.

G. J. Callahan & C.

S. Lyon, (E.

P. Brooks with them,) for the defendant.

J. F. Kelly, Assistant District Attorney, for the Commonwealth.

RONAN, J. The defendant, a member of the city council of Springfield and also a member of the board of supervisors of the department of streets and engineering, a municipal board authorized in behalf of the city to award contracts for the construction of bridges, was tried by a judge, without a jury, and convicted upon two indictments. The first indictment charged him with a violation of G. L. (Ter. Ed.) c. 268, Section 8, by corruptly requesting a gift or gratuity or a promise to make a gift or to do an act beneficial to him under an agreement that his vote, opinion or judgment would be given in a particular manner in a matter that was to come before him in his official capacity, and the second charged him with a violation of G. L. (Ter. Ed.) c. 268, Section 10, by being personally interested, directly or indirectly, in a contract made by said municipal board in which the city was an interested party. The cases were tried together and the defendant rested at the close of the Commonwealth's evidence. The first case is here by appeal, with a summary of the record, a transcript of the evidence, and an assignment of errors. G. L. (Ter. Ed.) c. 278, Sections 33A-33G. The second case is before us upon the defendant's bill of exceptions.

We now consider the first case and shall briefly refer to facts that could have been found to have been established by the evidence. Proposals for the construction of a highway bridge were opened and read by the municipal board, which consisted of the mayor, an alderman and the defendant, on January 31, 1936, in accordance with the advertisement for bids. The invitations for proposals recited that the successful bidder must furnish a satisfactory surety bond, and the form of the proposal itself left a space in which to furnish the name of the surety company. After opening the bids, the board went into executive session and voted that the contract be awarded to the lowest bidder, A. L. Phelps, Inc. The bid of this company (hereinafter referred to as the contractor) disclosed the name of the proposed surety company if its proposal was accepted. The invitations for proposals provided that "Written notification of the acceptance of any proposal sent by Registered Mail to the address given on the proposal form shall be considered an adequate notice of the acceptance of said proposal."

On the morning of February 4, 1936, one Phelps, an officer of the contractor, went to the city hall to attend a conference with some representatives of a railroad corporation relative to the construction of the bridge. The city engineer gave him a slip of paper upon which was written a telephone number. Phelps called the number and a person, who said he was Charles Albert, congratulated him upon being the lowest bidder and inquired from whom he intended to secure the bond. Phelps replied that he had already arranged for the bond. The person with whom he was talking on the telephone then offered to extend the time for completion of the contract to one hundred twenty days. Twenty minutes later the same person with whom he had previously talked called upon the telephone and told Phelps that "they" would not accept a bond from the surety company that the contractor offered, and that unless Phelps withdrew the bond and purchased one from one Simons "they would see to it that the contract was never signed." Phelps told him that he would take the matter up with one who handled his insurance, and he was then told that, although he could not be forced to withdraw the bond he had offered, he "had better play ball because the board of supervisors would have the last say on the job." Phelps then saw one Baldwin who had charge of the insurance for the contractor. Baldwin, on February 4, 1936, called the telephone number of the defendant and inquired if the man speaking was Charles Albert, and, when informed that he was, Baldwin gave his name and said that he was the insurance agent of the contractor and he asked the man speaking (who could have been found to be Albert) what objection he had to the surety company that the contractor intended to offer as the surety upon its bond. Albert said it was not acceptable to the city. Baldwin stated that this company was acceptable to the Federal and State governments, and that the city had one or two bonds from this company in amounts a great deal larger than the bond in the present case. Albert again stated that this surety company was not acceptable to the city. Baldwin then asked if it would be agreeable if he should pay his full broker's commission to Samuel Simons and Albert replied that that would be all right. Baldwin then telephoned Simons in reference to paying the commission on the bond to him and he paid the full broker's commission to Simons on February 8, 1936. Under date of February 6, 1936, the contractor received five copies of the contract for its signature. No other parties had then executed the contract. The contractor was advised by registered mail, under date of February 7, 1936, that the board had on January 31, 1936, awarded the contract to it and that the board had further voted to allow one hundred twenty days for the completion of the contract. Thereafter the contracts were signed and the work was performed by the contractor.

The statute, G. L. (Ter. Ed.) c. 268, Section 8, provides that a "municipal officer who corruptly requests or accepts a gift or gratuity or a promise to make a gift or to do an act beneficial to him, under an agreement or with an understanding that his vote, opinion or judgment shall be given in any particular manner, or upon a particular side of any question, cause or proceeding, which is or may be by law brought before him in his official capacity" shall be punished. The aim of the statute is to prevent a municipal officer from using his office as an instrumentality for personal gain or private advantage, and to require him at all times to perform its functions consistently with the underlying principle that a public office is a public trust. Boston v. Santosuosso, 298 Mass. 175 . Boston v. Dolan, 298 Mass. 346. The mere solicitation by a municipal officer of a gift or promise of the nature described, in consideration of the exercise of his official judgment in a certain manner, constitutes a violation of the statute. Lack of acceptance by the person solicited is immaterial. Commonwealth v. Murray, 135 Mass. 530 . Commonwealth v. Donovan, 170 Mass. 228 . Commonwealth v. Hogan, 249 Mass. 555 .

The Commonwealth furnished a bill of particulars specifying that the defendant corruptly requested Phelps to secure a bond from Simons in consideration for the defendant's vote to award the contract to Phelps's company. These specifications set forth the method and means by which the Commonwealth intended to prove the offence charged in the indictment was committed and restricted the scope of the indictment and the manner of proof to the grounds alleged in the specifications. The indictment is to be read with the specifications, ...