Commonwealth v. Congdon

• Decision Date: 28 November 1928
• Parties: COMMONWEALTH v. CONGDON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 166

165 N.E. 467

COMMONWEALTH

v.CONGDON et al.

Supreme Judicial Court of Massachusetts, Essex.

Nov. 28, 1928.

Exceptions from Superior Criminal Court, Essex County; J. F. Quinn, Judge.

Harry Congdon and others were convicted of conspiracy to illegally expose and keep for sale certain intoxicating liquor, and of conspiracy to bribe certain selectmen of a town, and they bring exceptions. Exceptions overruled.

F. E. Raymond, Asst. Dist. Atty., of Ipswich, for the commonwealth.

W. H. Lewis, of Boston, and W. H. Fay, of Peabody, for defendants.

PIERCE, J.

The questions raised by the defendants' bill of exceptions arose in the of the Superior Court for the County of Essex. The first indictment (No. 13022) charged the defendant Harold Congdon and fourteen others with conspiracy ‘to illegally expose and keep for sale certain intoxicating liquor’ in the town of Salisbury. The record shows that all the defendants were acquitted except Harold Congdon, Everett R. George, Ruel S. Getchell, Warren S. Frothingham, and Howard F. George, and that each one of the convicted defendants was sentenced to imprisonment and to pay a fine. The second indictment (No. 13023) charged Harold Congdon and eleven others with conspiring to bribe Ruel S. Getchell and Everett R. George, selectmen of the town of Salisbury. The record shows that of the persons tried in this indictment, Anthony Caramagno and Albert H. Reynolds pleaded guilty, Harold Congdon was found guilty, the other defendants were found not guilty; and that Harold Congdon was sentenced to pay a fine, and to serve a term of imprisonment in the House of Correction to run concurrently with the sentence in indictment No. 13022.

[1] At the trial the defendants took numerous exceptions, some of which were briefed and argued before this court; others are not briefed and are ‘submitted for the consideration of the Court.’ An excepting party cannot impose on the court an obligation to consider exceptions which he does not consider of sufficient importance to be briefed; and a failure to brief an exception is in law a waiver of that exception. Fay v. Hunt, 190 Mass. 378, 77 N. E. 502;Eastern Advertising Co. v. Shapiro (Mass.) 161 N. E. 240. We shall consider the exceptions of the defendants in the order of their presentment in their brief.

Exceptions 1 and 16 relate to a plea in bar. In open court they were orally waived at the argument of the bill of exceptions.

[2][3] Exception 8 is to the admission in evidence of a statement, in the nature of a confession, by the defendant Ruel S. Getchell to one William J. West, a special agent of the Department of Justice of the United States. When called as a witness West, in substance, testified that on August 18, 1924, he had a talk with Ruel S. Getchell in the nature of a confession, as a result of which he testified for the United States in two trials in the Federal Court in October, 1924, and in June, 1925, and he also testified before the grand jury. The statement or talk was offered in evidence by the Commonwealth and objected to by the defendant ‘as not voluntary’ and as privileged under the laws of the United States. In the absence of the jury, counsel for the defendants was permitted to make a preliminary examination of the witness as to the admissibility of the proffered statement. In cross-examination by the attorney for the defendants West testified, in substance, that at the time he obtained this statement from Ruel S. Getchell he was an agent of the department of justice, called bureau of investigation; that he was detailed to make this investigation by the chief upon instructions from Washington; that he went to Getchell's house, told him he was a Federal officer and that he and a Mr. Shine who accompanied him ‘were there upon investigation into conditions down there at Salisbury Beach’; that Getchell said that he had heard that they ‘had been down in that vicinity, and that two then or former police officers had been to see him the day before * * * [the Federal officers] called, or a few days before * * * [they] called.’ Upon the statement of the witness that he had testified to all that took place ‘Preliminary to the statement’ the attorney for the defendants, with the permission of the district attorney, looked at the statement of Getchell, which West had taken stenographically and transcribed, learned from West that he had transcribed the shorthand notes and that he did not have the shorthand notes with him. In response to the questions put by the attorney for the defendant, ‘Did you warn Mr. Getchell? What did you say to Mr. Getchell before you took the statement, if you said anything?’ the witness answered: ‘That was three years ago. Of course, it is rather difficult at this time to remember every detail, but my recollection is that Mr. Getchell was advised that he would not be compelled to make any statement, that anything he said might be used against him as the district attorney saw fit, and that anything he said should be voluntary on his part. I believe that in the preliminary conversation with him that we told him that conditions down there were such that it had apparently reached Washington and an investigation had been directed. The government was intent upon clearing up the situation and that it was an occasion upon which he and other citizens down there, although involved in it possibly, should come forward and truthfully tell all that they knew about it.’ The witness testified that he did not tell Getchell ‘that if he made a statement * * * it would not be used against him’; that the reason why it in fact was not used against Getchell was ‘because it was entirely unnecessary to use the statement in view of the plea of guilty on the part of Mr. Getchell, and his testimony on behalf of the government in the two prior cases.’

The following cross-examination of the witness by the defendants' counsel then took place: ‘Q. Now, did you say-you talked with Getchell for some time, didn't you? Didn't you say to him ‘it would be best for you to tell the truth?’ Didn't you say that in substance, Mr. West? A. I, in substance, told him that he had-the only thing for him to do was to tell the truth * * * about the entire situation. Q. And you told him it would be better for him and all concerned if he told the truth, didn't you, in substance? A. Well, I don't remember * * * as to whether or not I said it would be better for him and all concerned to tell the truth. Q. You told him it would be better for him to tell the truth, didn't you, Mr. West? A. I don't think, Mr. Lewis-- Q. You wouldn't say you didn't say that? A. No, I wouldn't want to say I didn't say ‘It would be better for you to tell the truth,’ but my best recollection, sir, is that I told him this was a time for a man to come forward and tell the truth and tell all that he knew about the situation. Q. And you told him it would be better for him to tell the truth, didn't you? A. No, sir, I don't remember that. Q. You wouldn't say you didn't, Mr. West? You are an experienced officer, Mr. West? You have been in the service ever since I was in the district attorney's office, haven't you? A. Yes, around that. Q. Some 25 years? A. Yes, around that. Q. Some number of years. A. I have no hesitancy in telling you the entire situation. Q. So far as you can remember? A. So far as I can remember. Q. Yes. Now, you were talking with Mr. Getchell for some time, weren't you? A. Yes, sir, for from 8:30 in the evening, I believe, until close onto midnight. Q. And it was some little time before he made the statement to you, wasn't it? You had some little preliminary talk? A. No, sir, not so much that as his hesitancy in answering questions. Q. Well-- A. This-- Q. That is to say, you proceeded to ask him questions. A. Yes. Q. And you weren't getting satisfactory answers? A. No, I-in some instances the answers were not satisfactory, but we would ask a question and then it might be some minutes before he would answer it. Q. And this statement you have got here doesn't represent all that he said? A. It doesn't represent the preliminary conversation, sir. Q. No, of course not. And you didn't begin to take down what he said until he had agreed to do what you wanted him to do, to tell the story. That is right, isn't it? A. No, sir, that is not just the situation. Q. Well, at all events, how long were you talking with him before you began to take down the story? A. I should say, my best recollection of that is it was a very short while. It might have been five or ten minutes. Q. Might have been an hour? A. Oh, no, not that. Q. You encouraged him to tell his story, didn't you, Mr. West? A. Yes, sir. Q. Gave him every encouragement to tell his story? A. Not every encouragement. Every legal encouragement and proper. Q. That is to say, protecting yourself? A. It didn't make any difference to me, Mr. Lewis. Q. No, it didn't? You aren't quite frank there, are you, Mr. West? You wanted to get a statement, didn't you? A. I wanted to get the entire truth of the situation. Q. You wanted to get what you were sent to get? A. Yes, sir, in a proper manner. Q. After he gave you the statement did Mr. Getchell go before the grand jury? A. Yes, sir, he did. Q. And testified before the Federal grand jury? A. Yes, sir. Q. Did he testify at the first Federal trial of this case? A. Yes, sir, I believe he did. Q. And did he testify at the second Federal trial of this case? A. Yes, sir, he did. Q. Now, didn't you say to him, Mr. West, ‘If you testify for the Government we will see to it that no punishment comes to you?’ A. No, sir. Q. Didn't you say it? A. I didn't say to Mr. Getchell that no punishment would come to him. Q. What did you say to him? A. Do you mean at the time this statement was taken, or at any time? Q. Afterwards. * * * Didn't you also tell Mr. Getchell that if he so testified what he said would not be used against him in the Federal court and as far as you were...