Commonwealth v. Hogan

• Decision Date: 13 June 1924
• Parties: COMMONWEALTH v. HOGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

249 Mass. 555

144 N.E. 390

COMMONWEALTH

v.HOGAN.

Supreme Judicial Court of Massachusetts, Middlesex.

June 13, 1924.

Exceptions from Superior Court, Middlesex County; James H. Sisk, Judge.

William M. Hogan was convicted of accepting a bribe, and brings exceptions. Exceptions overruled.

Arthur K. Reading, Dist. Atty., and Robert T. Bushnell, 1st Asst. Dist. Atty., both of Boston, for the Commonwealth.

John J. Higgins, of Boston, for defendant.

BRALEY, J.

It is provided by G. L. c. 268, § 8, as amended by chapter 451 of the Statutes of 1923, that:

‘A legislative, executive, judicial, county or municipal officer 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 or as a consideration for any speech, work or service in connection therewith, or that, in such capacity, he shall make any particular nomination or appointment, shall forfeit his office, be forever disqualified to hold any public office, trust or appointment under the Constitution or laws of the commonwealth, and be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than five thousand dollars and imprisonment in jail for not more than two years; and an executive, county other than judicial, or municipal officer who is finally convicted of committing, in connection with the performance of the duties of such office, the crime of larceny, embezzlement or obtaining money under false pretences shall, in addition to the penalty imposed by law for the punishment of such crime, forfeit his office and be forever disqualified to hold any public office, trust or appointment as aforesaid.’

See Constitution of Massachusetts, c. 6, art. 2.

The material part of the indictment, which contains only one count, charges:

‘That William M. Hogan, at Cambridge in the county of Middlesex aforesaid, did, being a municipal officer of Cambridge aforesaid, corruptly request or accept 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 should be given in a particular matter, or upon a particular side of a question, cause or proceeding, which was or may have been by law brought before him in his official capacity, or as a consideration for any speech, work or service in connection therewith.’

[1][2] The defendant having been convicted contends, that the indictment is bad for duplicity, because it charges that he requested a gift; that he accepted a gift; and that he accepted a promise to make a gift. But no demurrer or motion to quash having been filed before the jurors were sworn, the case stood for trial on the indictment as presented by the grand jury. G. L. c. 278, § 17. The defendant however moved for a bill of particulars, which was furnished, and the trial proceeded on the merits. G. L. c. 277, § 40.

[3] It is next urged that a verdict should have been directed for the defendant. The credibility of the witnesses was for the jury, and the defendant's position must rest on the contention that there was no evidence on which the jury could find their verdict of ‘guilty as charged in the indictment.’ The uncontradicted testimony tended to show, that one Abe R. Hyde, owner of a building on one of the streets of the city, desired to have it moved to a vacant lot opposite the old location, and employed Soley & Blair, Inc., building movers, to do the work. But a license being necessary he petitioned the city council June 26, 1923, for permission to make the removal. G. L. c. 39, § 1; Id. c. 85, § 18. A public hearing was given July 10, 1923, at which no one appeared in opposition, and on the same date an order was adopted authorizing the superintendent of streets to issue a license to Soley & Blair, Inc., to remove the building in accordance with the petition. There was evidence, and the jury could find, that while the petition was pending Hyde and one Reagan, whom Hyde asked to assist him in getting the assent of the defendant to and aid in the passage of the order, had interviews with the defendant at Nantasket, in the town of Hull, in the county of Plymouth, in which the defendant solicited and requested money from Hyde in consideration of the defendant's efforts and vote in favor of granting the petition. Commonwealth v. Howard, 205 Mass. 128, 144, 91 N. E. 397. It also could be found on the evidence of Reagan that on the night of July 10, 1923, he met the defendant in the corridor of the city hall in Cambridge before the meeting of the council, and told him that he had $300 towards expenses. The defendant attended the meeting, and submitted a motion for suspension of the rules, so that prompt action could be taken on the petition. The defendant voted in the...