Commonwealth v. Ballou

• Decision Date: 27 June 1933
• Citation: 283 Mass. 304,186 N.E. 494
• Parties: COMMONWEALTH v. BALLOU et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 304

186 N.E. 494

COMMONWEALTH

v.BALLOU et al.

Supreme Judicial Court of Massachusetts, Franklin.

June 27, 1933.

Exceptions from Superior Court, Franklin County; Butterworth, Judge.

Charles M. Ballou and others were convicted of fraud and corruption in the execution of their duties as members of the board of registrars of voters for the town of Wendell, and they bring exceptions.

Exceptions overruled.J. T. Barlett, Dist. Atty., of Greenfield, for the commonwealth.

H. Parker, of Boston, and F. J. Lawler, of Greenfield, for defendants.

PIERCE, Justice.

The defendants were arraigned upon an indictment charging ‘that Charles M. Ballou, Charles H. Jennison and Lewis B. Bowen, All of Wendell in the County of Franklin, aforesaid, on the twentieth day of February now last past at Wendell aforesaid, in the County aforesaid being then and there the duly qualified members of the Board of Registrars of Voters for the Town of Wendell aforesaid, were guilty of fraud and corrupt conduct in the execution of the duties of their offices, in that they did for political reasons cause the name of one Ozro D. Baker to be removed from the list of legal voters in the Town of Wendell, well knowing that said Ozro D. Baker was then a legal voter in said Town of Wendell’; and further charging in ‘Count 2’ of said indictment, after identical allegations with those of the preceding count, that the defendants ‘were guilty of fraud and corrupt conduct in the execution of the duties of their offices, in that they did for political reasons cause the name of one Gertrude F. Baker to be removed from the list of legal voters in the Town of Wendell, well knowing that said Gertrude F. Baker was then a legal voter in said town of Wendell’; the said indictment further charged in ‘Count 3,’ after allegations identical with those of the preceding counts, that the defendants ‘were guilty of fraud and corrupt conduct in the execution of the duties of their offices, in that they did for political reasons cause the name of one Dorothy M. Baker to be removed from the list of legal voters in the Town of Wendell, well knowing that said Dorothy M. Baker was then a legal voter in said Town of Wendell.’ The defendants were arraigned on the indictment March 23, 1932, and pleaded ‘not guilty.’

March 28, 1932, the defendants filed and the judge allowed the motion for specifications which follows: ‘Now come the defendants * * * and pray that the Commonwealth specify the fraud and corrupt conduct in the execution of their duties as members of the Board of Registrars of Voters, as alleged in the three counts of said indictment.’ Specifications were filed on March 30, 1932, the material part of said specifications being as follows: ‘Now comes the Commonwealth * * * and says that the three persons whose names were removed from the voting list as alleged in the three counts of the indictment were members of a political faction in the Town of Wendell which was opposed to the defendants politically, and the removal of the names of said persons from the voting list was done for the purpose of strengthening the defendants political position.’

On April 4, 1932, trial of the indictment proceeded before the Superior Court and a jury. April 6, 1932, at the close of the evidence for the Commonwealth the defendants filed a motion for a directed verdict of not guilty on the ground ‘that there is no crime shown by virtue of the Commonwealth's own evidence.’ The motion was denied, the defendants excepted and the trial proceeded. On April 8, 1932, the motion for a directed verdict was withdrawn by leave of court. At the close of all the evidence the defendants filed a motion ‘that the indictment and each count thereof be dismissed for lack of jurisdiction, inasmuch as the indictment sets forth no cause in any of its counts under the laws of the Commonwealth of Massachusetts, inasmuch as the word ‘political’ as used in said indictment and specifications does not in any manner of its use allege any fraud or corrupt conduct.' The defendants duly excepted to the denial of this motion and also to the denial of a motion that a verdict be directed for all defendants on all counts of the indictment.

The defendants duly filed requests for rulings and for instructions to the jury which are marked ‘H,’ and attached to the bill of exceptions but not printed by the clerk of the Superior Court. The judge refused to give the instructions asked by the defendants as set forth in request numbered three, and the defendants duly excepted. This request reads: ‘If the jury find that in removing the names of Ozro D. Baker, Gertrude F. Baker and Dorothy M. Baker by the defendants from the voters of the Town of Wendell the defendants acted under the advice of counsel, then they shall find the defendants not guilty on all counts charged in the indictment.’ The judge refused to give instructions asked by the defendants as set forth in requests numbered twelve and sixteen and the defendants duly excepted. At the hearing before the full court these exceptions were waived, as were all exceptions saved to the admission or exclusion of evidence, other than those argued upon the defendants' brief. No exceptions were taken by the defendants to the charge. The jury found each defendant guilty on each of the three counts in the indictment. The case is before this court on the several and joint bills of exceptions of the defendants. All evidence material to the issues presented is set forth in the bill of exceptions, together with a recital of the rulings of the judge excluding or admitting such evidence, and a like recital of exceptions as taken by the defendants to such rulings.

1. By virtue of G. L. (Ter. Ed.) c. 51, § 16, the board of selectmen and the town clerk of Wendell act as the board of registrars. The defendant Charles M. Ballou had at the time of the trial been a member of the board of selectmen twenty-nine years, and he had been chairman of that board for twenty-six years. The defendant Charles H. Jennison had been a member of the board of selectmen in 1925, 1926, 1927, 1931 and 1932, and for the same years a member of the board of registrars by virtue of his office. The defendant Lewis B. Bowen had been a member in 1930 and 1931 up to the annual town meeting in March, 1932.

The evidence for the Commonwealth which was in the main undisputed tended to prove the following facts: Ozro D. Baker was born in Wendell and had lived there all his life. He owned the farm on which were the original farm house, two barns, workshop, and a house occupied by a caretaker, carried on the farm, raised garden stuff, potatoes, and fruit, and he had pasture land and live stock. He had always voted in Wendell up to March 7, 1932, and had never missed an election until that date. He had held public office there and paid taxes there. On February 8, 1932, he received a notice from the board of registrars of voters stating that his name had not been entered in the annual register of voters for that year, and on February 10, 1932, he received another notice requesting him to appear at a meeting of the registrars on February 20, 1932, to show cause why his name should not be struck from the voting list. His wife and daughter received on the same dates notices similar to the ones received by him. They all appeared on February 20, 1932, at the time and place stated in the notices for the hearing, and there read prepared statements why they thought their names should not be removed from the voting list. Sometime after this meeting the Bakers received notices that the registrars had voted to remove their names from the voting list. On town meeting day, 1932, the registrars gave the Bakers another hearing at Mr. Baker's request, but denied the privilege of voting to any one of them.

It further appeared by uncontradicted testimony that Ozro D. Baker had held the offices of selectmen, overseer of public welfare, assessor and member of the school committee of Wendell in 1927, 1928 and 1929, and member of the school committee until March, 1931. During the years that had passed he had served on various town boards with the defendant Ballou and everything was satisfactory between them until 1928 when certain acts of Ballou aroused Baker's ‘dissatisfaction,’ and from then on Baker and Ballou were on opposite sides of several questions concerning the town. At the town meeting in 1931 the voters were split into two factions, one led by Baker and one by Ballou. At this meeting Baker was one of six candidates for selectman. The three defendants were elected.

There was further uncontradicted testimony that in 1922 Ozro D. Baker bought a dwelling house in Millers Falls, in the town of Montague, and since 1923 he and his family had lived there from some time in September until some time in June of every year, and in Wendell for the rest of the time. The Baker children had attended school in Turners Falls and Mr. Baker had a wood business in Millers Falls. His house in Millers Falls, as also his house in Wendell, was fully furnished, a caretaker lived on the Wendell farm the year round and live stock was kept there. So far as the evidence shows and so far as the defendant Ballou knew the actions of the Bakers with regard to the time...