Commonwealth v. Barker

• Decision Date: 25 February 1942
• Parties: COMMONWEALTH v. BARKER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 82

40 N.E.2d 265

COMMONWEALTH

v.BARKER et al.

Supreme Judicial Court of Massachusetts, Hampden.

Feb. 25, 1942.

Frederick E. Barker was convicted of requesting a bribe in consideration of voting in favor of an application for use of a city auditorium for a wrestling match, and Vincent A. Curto was convicted of accepting a bribe for voting to grant the application, and they appeal.

Affirmed.Appeal from Superior Criminal Court, Hampden County; Collins, Judge.

Before FIELD, C. J., and QUA, DOLAN, COX, and RONAN, JJ.

T. F. Moriarty, Dist. Atty., of Springfield, and J. F. Kelly, Asst. Dist. Atty., of Holyoke, for the Commonwealth.

A. T. Garvey and G. H. Madsen, both of Springfield, for defendant F. E. Barker.

Noonan & Furcolo, of Springfield, for defendant V. A. Curto.

RONAN, Justice.

Barker and Curto were municipal officers of the city of Springfield and with one Brunton comprised the city property committee which had charge of various public buildings including the municipal auditorium. Barker was convicted of requesting a bribe of $50 from one Feldman in consideration of voting in favor of Feldman's application for the use of the auditorium on January 18, 1939, for a wrestling match, and Curto was convicted of accepting a bribe of $50 from Feldman for voting to grant his application. The cases were tried together and are before this court on appeals, with a summary of the record, a transcript of the evidence, and, in each case, an assignment of errors in accordance with G.L.(Ter.Ed.) c. 278, §§ 33A-33G.

Each indictment charged the defendant with a separate violation of G.L. (Ter.Ed.) c. 268, § 8, which in so far as here material, provides that ‘A * * * municipal officer who corruptly requests or accepts a gift or gratuity * * * 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 by imprisonment or by imprisonment and a fine.

Feldman filed an application on January 5, 1939, for the use of the auditorium for the evening of January 18, 1939, which came before the city property committee at its regular meeting held on the afternoon of January 5, 1939, and, with the assent of the full committee, action thereon was deferred. There was testimony that it was deemed expedient to obtain a report from the police department as to the advisability of permitting the use of the hall for a wrestling match. There was also testimony that Brunton from the beginning was opposed to having the hall used for this purpose and that he was steadfast in his opposition. Feldman testified that two or three days after this meeting he endeavored to talk with Barker over the telephone but was unable to locate him; that he asked Curto the reason for not acting upon the application and Curto said that, as far as he was concerned, he would vote in favor of the application, but that Barker ‘was hungry for some money and I [Feldman] had to give him something for it’; that Curto insisted that the only way that the application would be granted was to give Barker $50 for his vote; that subsequently, within a day or two, he met Barker and requested the reason for not granting the application; that Barker told him that it ought to be worth something to get the use of the hall, that one of the performers at the wrestling exhibition was getting a lot of money and that he (Barker) ought to get $50; that Barker said there was considerable opposition to the proposed use of the hall and that it would be worth $50 of Feldman's money ‘to get him to vote for it’; that he next saw Curto on the same day, and was told by him that the only way he could have the use of the hall was to give $50 to Barker, and that if Feldman would give him (Curto) the $50 he would give it to Barker; that Curto said he did not want anything for himself as he would gladly vote to grant the application; that he again saw Curto and told him that ‘if that was the only way I could get it I would give him that money’; and that within three or four days he was notified that his application had been granted. The permit was dated January 12, 1939. Feldman further testified that, within a couple of days after January 12, 1939, he met Barker and told him that he would give him the money later; that Barker told him that he could still revoke the permit and that he could use the agitation against it as an excuse for doing so; that Curto told him on January 17, 1939, that he had ‘better pay him the $50 for Barker was looking for it’; that the witness said that he would give it to him later, and Curto told him ‘to stop stalling and see that * * * [he] got the money so that * * * [Curto] could have it’; that later on the same day Curto told him that he had better get the money now because Barker had threatened to revoke the permit; and that the witness said that as he had already incurred expense in reference to the wrestling match he could not afford to lose the permit and that he would see that Barker got the $50. He testified that he met Barker on the morning of January 17, 1939, and Barker asked him for $50 which, Barker stated, the witness had promised to give him; that the witness told him that he would get the money, and Barker then stated that if he did not get the money it was not too late to revoke the permit; that on the morning of the date of the match, Curto telephoned to him that ‘Barker was getting quite hot under the collar, felt he was being double crossed and wanted that money’; that he met Curto on the afternoon of January 18, 1939, and told him that he did not want to give him $50, that he felt ‘they had a lot of nerve asking for it,’ and that he was going to go through with the wrestling match; that Curto said ‘it would be smart for me [the witness] to give him that $50’; and that the witness replied that, with all the expense he had incurred, there was nothing else he could do except to pay the money; and that he then give Curto $50.

Downey, the superintendent of public buildings, testified that the meetings of the city property committee were held in his office; that he made the records of the meetings; that regular meetings were held on Thursdays practically every week; that the next regular meeting after January 5, 1939, was held on January 19, 1939; that he issued a permit to Feldman on January 12, 1939, in response to the order of Barker, Curto or both, and that Brunton was not present at that time; that shortly after the wrestling match, Curto told him that Barker ‘had better watch his step or he would get into trouble’ as Curto ‘had had to get $50 from Feldman and give it to Barker for the wrestling match.’

We now pass to the assignment of error alleged by Barker.

The first and third assignments are based upon the admission of the testimony of Feldman relative to conversations occurring after January 12, 1939, the date of the issuance of the permit, between Barker and him concerning the payment of $50 to Curto, and to the failure of the judge to strike out this testimony. There was ample evidence that, prior to the issuance of the permit, Barker had requested a bribe of $50 for his vote in granting the permit, and his conversations thereafter could be found by the jury to be attempts to collect this amount in accordance with his request and to show a course of conduct consistent with this request, and could be considered as evidence tending to prove that such a request was in fact made by him with the corrupt intent to sell his vote. Williams v. Woodman, 8 Pick. 78;Thayer v. Thayer, 101 Mass. 111, 100 Am.Dec. 110;Ryerson v. Abington, 102 Mass. 526;Whitney v. Leominster, 136 Mass. 25;Commonwealth v. Bean, 137 Mass. 570;Beacon Trust Co. v. Wright, 288 Mass. 1, 192 N.E. 70;Arabia v. John Hancock Mutual Life Ins. Co., 301 Mass. 397, 17 N.E.2d 202;Conroy v. Fall River Herald News Publishing Co., 306 Mass. 488, 28 N.E.2d 729, 132 A.L.R. 927;Skolnick v. East Boston Savings Bank, 307 Mass. 1, 29 N.E.2d 585, 130 A.L.R. 1519;People v. O'Neil, 109 N.Y. 251, 16 N.E. 68.

The second assignment is to the denial of a motion for a mistrial on account of a publication by a local newspaper, during the trial, of an article which was attached to the motion and which contained the statement that ‘Barker will be tried later in the session in connection with other indictments.’ This motion was denied after a hearing. We do not know what evidence, if any, was heard by the judge. There is nothing to show that the article had been read by any juror or that anyone on the panel had any knowledge of it. As far as the record goes the judge may have interrogated the jurors and satisfied himself that they were entirely ignorant of the publication of this article. The defendant in his brief merely contends that newspaper articles do create prejudice and that the publication was highly prejudicial to the defendant. He points to no specific manner in which he was harmed. Indeed, there is nothing whatever to show he was harmed at all. The burden is upon an excepting party to include in the record enough to demonstrate that the ruling of law of which he complains ‘was positively wrong in a pertinent particular.’ Posell v. Herscovitz, 237 Mass. 513, 516, 130 N.E. 69, 71;Commonwealth v. Rivers, 307 Mass. 225, 29 N.E.2d 683.

The parties were entitled to have the case decided only upon the evidence that was introduced at the trial. It was the duty of the judge to determine whether the rights of the defendant were adversely affected by the publication. Much must be left to the discretion of the trial judge, and his denial of the motion implies a finding that the defendant had not been prejudiced. The action of the judge cannot be said to constitute an abuse of sound judicial discretion. Commonwealth v. Capland, 254 Mass. 556, 150 N.E. 869;Commonwealth v. Friedman, ...