Commonwealth v. Connolly

• Decision Date: 31 March 1941
• Citation: 33 N.E.2d 303,308 Mass. 481
• Parties: COMMONWEALTH v. CONNOLLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 481

33 N.E.2d 303

COMMONWEALTH

v.CONNOLLY.

Supreme Judicial Court of Massachusetts, Suffolk.

March 31, 1941.

John P. Connolly was convicted under two indictments for requesting and accepting bribes, and he appeals.

Judgment upon each indictment affirmed.Appeal from Superior Court, Suffolk County; Leary, Judge.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, and COX, JJ.

A. R. Sisson, L. R. McHugh and W. J. Lee, all of Boston, for defendant.

F. T. Doyle, Asst. Dist. Atty., of Boston, for the Commonwealth.

LUMMUS, Justice.

These are two indictments against a former elected clerk of the Superior Court of the county of Suffolk for civil business, for corruptly requesting and accepting bribes. G.L.(Ter.Ed.) c. 268, § 8. The first indictment, numbered 626, was in four counts, each of which alleged that the defendant ‘being a county officer, to wit’ such clerk, ‘did corruptly request and accept from’ a named person a specified sum of money ‘under an agreement and with the understanding that his, the said John P. Connolly's vote, opinion, judgment and decision should be given in a particular manner, and upon a particular side of a question, cause and proceeding which was then pending, and which might by law come and be brought before him, the said John P. Connolly, in his official capacity’ as such clerk and that in that capacity ‘he, the said John P. Connolly, should make a particular nomination and appointment.’ Specifications filed as to each count set forth that the defendant as clerk had final authority to hire, discharge and continue in employment certain employees attached to his office, and that in consideration of the payment of a specified amount of money to a third person named, he promised to employ or continue in employment the person paying the money. The second indictment, numbered 646, originally contained eleven similar counts which were accompanied by similar specifications, but only eight of these latter counts were submitted to the jury. A summary of the counts submitted to the jury appears in a footnote. ¹

The change in the mode of selection of clerks of courts, from appointive to elective, was made by Article 19 of the Amendments to the Constitution, approved by the people on May 23, 1855, which reads: ‘The legislature shall prescribe, by general law, for the election of * * * clerks of the courts, by the people of the several counties, * * * for such term of office as the legislature shall prescribe.’ Opinion of the Justices, 117 Mass. 603;Commonwealth v. Mather, 121 Mass. 65G.L.(Ter.Ed.) c. 221, § 3, provides for a clerk for the Superior Court of the county of Suffolk for civil business, who shall hold office for six years beginning with the first Wednesday of January following his election. In 1934 and again in 1940 such a clerk was to be chosen in Suffolk, c. 54, §§ 62, 155. The person elected in 1934 having died, the defendant was elected at the biennial election in November, 1936, to serve during the unexpired term, or until January, 1941, as provided by c. 54, § 142. He qualified and took office on December 1, 1936. He continued in office until he resigned on July 19, 1939, on the eve of a hearing under c. 211, § 4, for his removal from office upon a petition which was based in part upon the transactions upon which these indictments are based.

As clerk, the defendant had no power to appoint or remove any of the fourteen assistant clerks provided for by G.L.(Ter.Ed.) c. 221, § 6, which gives the power to appoint them to the justices of the Superior Court. But by section 102 the defendant as clerk was authorized to expend for clerical assistance such amounts as might be approved by the officers having the powers of county commissioners in Suffolk. Under that section he maintained, as had his predecessors, a clerical force of approximately twenty-one men and sixty-nine women, paid in the aggregate more than $160,000 a year. The members of this clerical force had the protection of no civil service law, but were wholly subject to the will of the defendant as to employment and discharge. Soon after taking office the defendant discharged about thirty employees and replaced them, in large part at least, with his political friends and campaign workers.

There was no direct evidence of any payment of money to the defendant. But it appeared, without dispute, that William T. Conway was the defendant's intimate friend and political supporter, who had charge under the defendant of the campaign in 1936 which resulted in the defendant's election, who was the constant companion of the defendant in his living rooms at a hotel from which he conducted his campaign, who accompanied the defendant on a vacation after the election, and who during the defendant's occupancy of the position of clerk was almost a daily visitor to him and to his office. There was undisputed evidence that payments of money were made to Conway in the amounts specified in the counts and specifications already stated in a footnote, by the persons named therein. Conway's explanation of these payments is in substance that the employees voluntarily helped Conway discharge debts that he had incurred in the campaign, in order to ingratiate themselves with Conway and Connolly. Both Conway and Connolly testified that the latter knew nothing of these payments until after the petition for his removal had been filed in 1939.

There was ample evidence that Conway received each sum of money stated in the various counts under an agreement and with an understanding that the employees who paid would not be discharged. We take the evidence upon the counts of the first indictment in order. (1) John E. Noonan, an employee for many years, testified that in January, 1937, he was summoned by telephone to the clerk's private office. There he found Connolly and Conway. Inquiring of Connolly, ‘Did you want to see me, Mr. Clerk?’ Connolly answered, ‘No, [but] Bill [Conway] does.’ Conway said, ‘I will see you outside at five o'clock.’ At that time, Noonan saw Conway, and the latter asked whether Noonan wished to keep his job. Noonan answered that he did. Conway said, ‘You will have to come across with $300.’ It was arranged that Noonan should borrow the money and pay it in a few days, and Noonan paid it accordingly. (2) Margaret W. Kennedy, named in the indictment as Marguerite W. Kennedy, an employee for many years, testified that on January 14, 1937, Conway told her that Connolly had incurred much expense in the campaign and needed money. Conway told her she was to pay $200 as a guarantee for her position. She paid it to him the next day. Later, she testified, Conway named a number of other women employees, with the amount that each was to pay, and asked her to tell them that Connolly needed money, and that those women who paid the designated amount of money would be ‘privileged girls,’ their jobs were secure by so paying. The names so given her were Mary C. Brogie, Martha E. Friel, Gertrude Cotter, Mary V. Brophy, Catherine R. Gibbons, and Anna E. Pugh. She had a conversation with each with reference to what Conway had told her.

(3) Mary M. Cunningham, an employee for many years, testified that after she was discharged by Connolly on February 4, 1937, she asked the help of her brother-in-law, a police officer named Keegan. She with Keegan saw Conway, who said he would see what he could do. The next day Conway telephoned that there had been a mistake, since she had supported Connolly in the campaign, and that she was to have her position back. Keegan testified that afterwards he met Conway on the street. Conway told him everything was all right, but it would cost him $250. Miss Cunningham paid Keegan $250, and he paid it to Conway. Later she resumed her work. (4) Louise V. Crowley, an employee for many years, testified that she was discharged by Connolly late in April, 1937. She gave $250 to her brother John J. Crowley on May 18, 1937. Her brother testified that about ten days after his sister was discharged, he talked with Conway, and then with Connolly. Connolly gave him no encouragement, but said he would consider the question of restoring the sister to work. Later Conway saw Crowley, and said that it would cost $250 to get the sister back to work. The next day Crowley got $250 from his sister, and gave it to Conway in the toilet in the building where Crowley had his office, saying ‘Here is what you are looking for.’ Shortly afterwards the sister was put back to work.

Passing to the evidence upon the counts of the second indictment, we take them in order. (1) Anna E. Pugh, an employee for many years, testified that after a conversation with Miss Kennedy, the terms of which were excluded, she paid Miss Kennedy $200 on January 17, 1937. Miss Kennedy testified that she paid it to Conway.(2) Edward J. Kelley, an employee for many years, testified that in the latter part of January, 1937, Conway told him that certain employees were to be asked to pay money to help defray the expenses of the campaign, that the employees who were asked to pay were to be retained, that it was intended that Kelley should contribute $300, and that he would have to get the $300. Conway said he would see Kelley the next day to learn what he could do. Within a day or two Conway asked Kelley whether Kelley had anything for him. Kelley answered that he had, and Conway said he would see him downstairs. They were then in the clerk's office. Kelley went downstairs, and there gave Conway $300. (3) Gertude Cotter, an employee for many years, testified that prior to January 18, 1937, she had a conversation with Miss Kennedy about paying money, and after Miss Kennedy introduced her to Conway Miss Cotter gave $200 to him on January 19, 1937. Conway told her at the time that as long as Connolly was in office she was secure. (4) Catherine R. Gibbons, an employee for many years, testified that after a conversation with Miss Kennedy on January 21, 1937, she paid $200 to...