Commonwealth v. Dowe

• Decision Date: 27 December 1943
• Citation: 52 N.E.2d 406,315 Mass. 217
• Parties: COMMONWEALTH v. ROBERT M. DOWE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 217

52 N.E.2d 406

COMMONWEALTH v. ROBERT M. DOWE.

Supreme Judicial Court of Massachusetts, Essex.

December 27, 1943

October 4, 1943.

Present: FIELD, C.

J., LUMMUS, DOLAN COX, & RONAN, JJ.

Bribery. Public Officer.

Municipal Corporations, Officers and agents. Practice, Criminal Exceptions: filing of bill; Variance. Lawrence. Pleading Criminal, Indictment. Words, "Municipal officer," "Executive officer.

"

Failure by an indicted defendant, after saving an exception to the denial of a motion to quash the indictment, to file a bill of exceptions within the three days allowed by G. L. (Ter. Ed.) c. 278, Section 31, or to procure an extension of that time deprived him of the right to present that exception to this court.

One indicted under G. L. (Ter. Ed.) c. 268, Section 8, for corruptly accepting "money and credit" properly was convicted upon proof that a credit, but no money, was accepted. Evidence, at the trial of an indictment under G. L. (Ter. Ed.) c. 268,

Section 8, charging the commissioner of soldiers' relief of a city with corruptly accepting credit, warranted a finding of an understanding between the defendant and a shoe dealer that the dealer should continue to receive the soldiers' relief shoe business in return for a credit given the defendant on the dealer's books for shoes taken by the defendant for his personal use and not paid for, although there was no evidence that an understanding was explicitly expressed in words.

The commissioner of soldiers' relief of Lawrence was a "municipal officer" within G. L. (Ter. Ed.) c. 268, Section 8.

An indictment under G. L. (Ter. Ed.) c. 268, Section 8, against the soldiers' relief commissioner of Lawrence as an "executive officer of the city" meant to charge him merely as a "municipal officer" within the statute, and he properly was convicted on evidence supporting such allegation.

INDICTMENT, found and returned on December 16, 1941. The case was tried before Fosdick, J. After his death, a bill of exceptions was allowed by Spalding, J.

H. F. Collins, (M.

E. Walch with him,) for the defendant.

F. G. Volpe, Assistant Attorney General, for the Commonwealth.

LUMMUS, J. The indictment charges that the defendant, "on or about" November 30, 1937, at Lawrence, "being an executive officer of the city of Lawrence, to wit: the commissioner of soldiers relief, did corruptly request and accept a gift and gratuity and a promise to make a gift and to do an act beneficial to him, the said Robert M. Dowe, to wit: a sum of money and credit to the amount and value of eighty dollars ($80.00), under an agreement and with an understanding that his, the said Robert M. Dowe [sic], vote opinion and judgment 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 Robert M. Dowe, in his official capacity as commissioner of soldiers relief of the city of Lawrence."

The statute (G. L. [Ter. Ed.] c. 268, Section 8) makes "a legislative, executive, judicial, county or municipal officer" punishable who "corruptly requests or accepts a gift or gratuity or a promise to make a gift or to do an act beneficial to him, 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."

The defendant, on April 30, 1942, excepted to the denial of his motion to quash the indictment. No bill of exceptions was filed until May 8, 1942, after he had been tried and found guilty by a jury. It is true in both civil and criminal cases that exceptions cannot ordinarily be entered in this court until the case has reached a stage when it will become ripe for judgment as soon as the exceptions shall have been disposed of. Commonwealth v. Gloucester, 110 Mass. 491, 497. Weil v. Boston Elevated Railway, 216 Mass. 545 , 547. Todd v. Pearce, 291 Mass. 455 , 459, 460. Donovan v. Donovan, 294 Mass. 94 , 96. Driscoll v. Battista, 311 Mass. 372 . And now in criminal cases exceptions cannot be entered in this court until after judgment, which in criminal cases is the sentence. G. L. (Ter. Ed.) c. 279, Section 4, as amended by St. 1935, c. 50, Section 3, and c. 437, Section 3. Commonwealth v. Fleckner, 167 Mass. 13 . Commonwealth v. Brown, 167 Mass. 144 , 146. Commonwealth v. Millen, 290 Mass. 406 , 411. But a defendant in a criminal case who has excepted to some interlocutory ruling nevertheless must file a bill of exceptions within three days after the "opinion, ruling, direction or judgment excepted to is given, unless a further time, not exceeding five days, except by consent of the district attorney, is allowed by the court." G. L. (Ter. Ed.) c. 278, Section 31. Allen, petitioner, 255 Mass. 227 . Commonwealth v. Kossowan, 265 Mass. 436 . Glick, petitioner, 299 Mass. 255 . For a comparable practice in civil cases, see Anti v. Boston Elevated Railway, 247 Mass. 1 , 3, 4; Cohen v. Industrial Bank & Trust Co. 274 Mass. 498. In the present case no further time was allowed. The exception to the denial of the motion to quash perished by lapse of time before any bill of exceptions was filed.

The only exception before us is the one taken to the denial of a directed verdict of not guilty. The grounds specified in that motion (Beebe v. Randall, 304 Mass. 207 , 209, 211) will be considered in their order.

1. The indictment charged the defendant with accepting as a gift and gratuity a sum of money "and" credit. The defendant contends that there is a variance, for the proof showed that a credit, but no money, was accepted. This contention ignores an elementary rule of criminal pleading. It was not necessary to prove the acceptance of both money and credit. Where a crime can be committed in any one of several ways, an indictment properly charges its commission in all those ways, using the conjunction "and" in joining them. Then the defendant should be convicted if it is proved that he committed the crime in any of those ways. Commonwealth v. O'Brien, 107 Mass. 208 . Commonwealth v. Adams, 127 Mass. 15 , 19. It is true that in some reported cases the indictment improperly charged the different ways in the disjunctive, and that no objection was taken. But such an indictment violates the rule requiring certainty in criminal pleading. Commonwealth v. Curtis, 9 Allen, 266. Commonwealth v. Hogan, 249 Mass. 555 , 559, 561, 564. Commonwealth v. McKnight, 283 Mass. 35 , 38. Commonwealth v. Stone, 300 Mass. 160 , 165. Commonwealth v. Martin, 304 Mass. 320 , 322, 323.

It is not argued that a credit against indebtedness could not be found to be a "gift or gratuity" having sufficient value to constitute a bribe. Commonwealth v. Hayes, 311 Mass. 21 , 27, and note at page 23. Commonwealth v. Hurley, 311 Mass. 78 , 82. Commonwealth v. Albert, 310 Mass. 811 , 818.

2. There was evidence that the credit was given and accepted on or about November 30, 1937, upon a corrupt agreement or understanding as alleged. The defendant had been commissioner of soldiers' relief of Lawrence since April 16, 1928. In his official capacity he furnished shoes to needy persons at the expense of the city. The question from what dealer they were to be bought was constantly pending before him as commissioner. Commonwealth v. Lapham, 156 Mass. 480 , 484. As early as 1932, the evidence showed, he had made a corrupt agreement with a shoe dealer named Sandler, whereby Sandler was to get practically all the soldiers' relief shoe business in return for sharing profits with the defendant monthly. Sandler charged the city excessive prices until May, 1937, when apparently he became frightened. But even after that date it could have been found that Sandler valued the soldiers' relief shoe business, which the defendant controlled, and desired to retain it.

The defendant took many shoes from Sandler's store for his personal use, and never paid for them. When Sandler asked for pay, the defendant refused, saying, "You are making plenty" and "you have got to put something through."

Sandler then told the defendant that he would put through a credit to the defendant of $80. The defendant answered: "Put down $80" and "Put it through." Sandler then gave the defendant a credit of $80 on his books, although the defendant paid nothing.

The relations between the defendant and Sandler had long been corrupt. The jury could infer an understanding that Sandler was to continue to receive the soldiers' relief shoe business from the defendant. That understanding need not have been expressed in words.

3. The defendant could have been found to be "an executive officer of the city of Lawrence," as charged in the indictment.

The first mention we find of a commissioner of soldiers' relief is in St 1897, c. 441 ^[1] which created the soldiers' relief department of the city of Boston under the charge of a soldiers' relief commissioner appointed by the mayor subject to confirmation by the aldermen. He was to take over duties previously performed by the mayor and aldermen, and was to be subject to the direction of the aldermen as to the amounts to be paid to beneficiaries. See also St. 1899, c. 374, Section 10. The first mention of such commissioner in a general statute appears to have been in R. L. (1902) c. 79, Sections 18, 20. Apparently there was then no such commissioner except in Boston. By later statutes the commissioner of soldiers' relief "of" or "in" various cities has been brought within the civil service laws. St. 1932, c. 92. St. 1933, c. 249. St. 1934, c. 144. St. 1935, c. 168, c. 170. St. 1936, c. 355. St. 1937, c. 319. In Lawrence the...