Commonwealth v. Connolly

• Decision Date: 06 January 1941
• Citation: 308 Mass. 481,33 N.E.2d 303
• Parties: COMMONWEALTH v. JOHN P. CONNOLLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 481

33 N.E.2d 303

COMMONWEALTH v. JOHN P. CONNOLLY.

Supreme Judicial Court of Massachusetts, Suffolk.

January 6, 1941

March 31, 1941. Present: FIELD, C.

J., DONAHUE LUMMUS, & COX, JJ.

Bribery. Public Officer.

Clerk of Court. Evidence, Relevancy and materiality. Practice, Criminal Exceptions: general exception, whether error harmful Discretionary control of evidence; Argument by counsel Requests, rulings and instructions; Charge to jury. Error, Whether harmful.

Conviction under G. L. (Ter. Ed.) c. 268, Section 8, is justified if the accused acted through an agent in requesting or accepting the gift, gratuity or promise described in the statute, and even if the person from whom the bribe was requested or accepted had no personal knowledge that the accused himself was a party to the "agreement" or "understanding" under which the bribe was given. A clerk of the Superior Court for a county is a "county officer" within

Section 8 of G. L. (Ter. Ed.) c. 268.

Where, at the trial of an indictment against a clerk of the Superior Court for a county for violation of Section 8 of G. L. (Ter. Ed.) c. 268, there was ample evidence that the defendant through an agent sought and accepted, from employees in the clerk's office whose tenure was subject to his discretion, sums of money with the agreement or understanding that the persons making the payments should not be discharged, the admission of evidence of other collections made for him, long after the transactions charged in the indictment, for a "good will fund" and for a fund for a subsequent campaign for reelection, and as to certain loans, if error, was immaterial and harmless.

Evidence of dealings of agents, used by a clerk of the Superior Court to request and accept bribes in violation of Section 8 of G. L. (Ter. Ed.) c. 268, was competent. At a trial for requesting or accepting bribes in violation of G. L. (Ter.

Ed.) c. 268, Section 8, it was within the discretion of the judge to admit evidence of dealings with an alleged agent of the defendant before evidence of the agency was introduced. At the trial together of two indictments, one for violation of Section 8 of

G. L. (Ter.

Ed.) c. 268, against a clerk of the Superior Court and the other for conspiracy to obtain bribes against the clerk and an agent alleged to have been employed by him in such violations, a general exception to the admission of evidence, offered by the Commonwealth, of statements by the alleged agent, competent for certain purposes only under both indictments but not offered for limited purposes, nor limited, nor requested by the defendant to be limited, was overruled. At the trial of an indictment charging violation of G. L. (Ter. Ed.) c.

268, Section 8, upon the district attorney's ridiculing in his closing argument a reason testified to by the defendant for having resigned his office during pendency of proceedings for his removal, the judge properly refused to reopen the evidence to permit the defendant to testify in further elaboration of his reasons; and in the circumstances no error appeared in refusing to stop comments by the district attorney in his argument respecting that reason.

At the trial of an indictment against a clerk of the Superior Court for violation of G. L. (Ter. Ed.) c. 268, Section 8, in requesting or accepting bribes from certain employees subject to removal by him, it was proper to exclude evidence that other employees were not solicited.

Evidence that a solicitor of a bribe from one of several employees of a clerk of the Superior Court was acting as agent of the clerk had a tendency to show that the solicitor also was acting as agent in soliciting bribes from other employees at about the same time.

After a witness for the Commonwealth in cross-examination had denied an accusation by the defendant respecting an immaterial matter and the defendant had testified to the truth of the accusation, the defendant's counsel was properly stopped in an argument to the jury that the defendant's testimony required the Commonwealth to recall that witness or to call another witness to contradict the defendant.

In the circumstances, no wrong was done to a clerk of the Superior Court, at the trial of an indictment charging him with soliciting bribes from his employees in violation of Section 8 of G. L. (Ter. Ed.) c. 268, in refusing to stop the district attorney's referring to him as "Caesar."

A defendant in a trial of an indictment was not harmed by a refusal to grant a request for an instruction, which, although correct in form, might have misled the jury, and which the judge gave in substance and in a form sufficiently favorable to the defendant.

TWO INDICTMENTS, found and returned on December 8 and 13, 1939. The trial in the Superior Court was before Leary, J.

A. R. Sisson, (L.

P. McHugh & W.

J. Lee with him,) for the defendant.

F. T. Doyle, Assistant District Attorney, for the Commonwealth.

LUMMUS, J. These are two indictments against a former elected clerk for the Superior Court for civil business in the county of Suffolk for corruptly requesting and accepting bribes. G. L. (Ter. Ed.) c. 268, Section 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 art. 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. 65 . G. L. (Ter. Ed.) c. 221, Section 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, Sections 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, Section 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, Section 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, Section 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...