Commonwealth v. McCarthy

• Decision Date: 13 December 1932
• Citation: 183 N.E. 495,281 Mass. 253
• Parties: COMMONWEALTH v. McCARTHY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 253

183 N.E. 495

COMMONWEALTH

v.McCARTHY.

Supreme Judicial Court of Massachusetts, Essex.

Dec. 13, 1932.

Exceptions from Superior Court, Essex County; Cox, Judge.

John W. McCarthy was convicted under two indictments charging violations of G. L. c. 268, § 9, and c. 55, § 11, and he brings exceptions.

Exceptions sustained in part, and overruled in part.

H. A. Cregg, Dist. Atty., of Lawrence, and J. J. Ryan, Jr., Asst. Dist. Atty., of Haverhill, for the Commonwealth.

E. J. Tierney, of Lowell, and M. F. Cronin, of Lawrence, for defendant.

DONAHUE, J.

The defendant was found guilty by a jury at a trial on two indictments numbered 18975 and 18976. The defendant excepted to the refusal of the judge to give two requests for instructions with reference to the indictment numbered 18975, and to a portion of the judge's charge with reference to the same indictment, to the denial of the defendant's motion for a directed verdict of not guilty on both indictments, and to the exclusion of two questions asked a witness for the Commonwealth on cross-examination.

Certain portions of the testimony as to which there is no dispute are here briefly summarized. The defendant was elected alderman of the city of Lawrence in the fall of 1927, and took office on the first Monday of January, 1928. He testified that he was assigned to the department of streets and water under the charter. Thereafterwards the defendant devoted practically all his time to the work of the city and had control of one hundred and fifty to one hundred and seventy-five men who were engaged in the work of that department. Among those who had been actively engaged in his behalf during his campaign for election were one Reinhardt, who acted as chairman at public rallies, and one Sullivan, who took ‘charge of pretty near all the inside work of the different ward committees.’ Upon his inauguration each of these men was employed by the defendant to work for the city as a laborer in the department of which he was the head but shortly afterwards each was employed in the defendant's office. In the early spring of 1928 the defendant called a meeting of all the men in his department which meeting was addressed by the defendant, by Sullivan and by Reinhardt. It is not in dispute that a club made up of men employed in the defendant's department was then formed and was given the name of S and W (street and water) Associates; that Reinhardt was elected president, Sullivan, treasurer, and one Walsh, vice president, and that the members of the club for some months paid the sum of $1 weekly to the treasurer or president. Respecting what was said at the meeting called by the defendant and the defendant's knowledge of the existence of the club and his knowledge of the weekly payment of $1 by the members, the evidence is conflicting. There was a meeting of the men of the department in early July called by the defendant. The amount which the members of the club had paid in weekly installments was then paid back to them. In 1928 there was agitation in Lawrence for a new city charter and various employees in the department controlled by the defendant on solicitation paid to Sullivan and Reinhardt various sums of money for the purpose of defeating the proposed new charter.

[1] 1. Indictment numbered 18976 adequately charged in ten counts violations of G. L. c. 268, § 9, which prohibits and penalizes the acceptance directly or indirectly, by an officer of a city who is authorized to employ labor, of a present or reward from a person rendering such labor. The defendant testified that on taking office as alderman he was assigned to the department of streets and water under the charter, that he thereupon discharged all but a few of the one hundred and fifty to one hundred and seventy-five men then employed in that department and hired his own supporters to take their places and that this was in accordance with a custom that always prevailed in Lawrence. The record warrants the conclusion that he alone exercised the power to employ and to discharge men in that department during his term of office. There is nothing to indicate that his right so to do was ever challenged or disputed. There is nothing in the record to indicate that his authority to hire men was questioned at the trial. On all the evidence the jury was warranted in drawing the inference that the defendant was authorized to employ city laborers in his department.

There was evidence that Sullivan and Reinhardt during the year 1928 collected moneys from the men employed in the defendant's department on a weekly basis and in lump sums and other moneys for the stated purpose of defeating the proposed new charter. Although the defendant denied having any connection with the collection of moneys by Sullivan and Reinhardt there was evidence from which the jury was warranted in drawing inferences to the contrary. There was evidence that at the first meeting of the men of the department they were addressed by the defendant who emphasized the fact that his election had cost him a great deal of money. He said he was going to call them together from time to time to instruct them. He concluded by saying that Sullivan and Reinhardt had something to say to them and then left the meeting. Sullivan then spoke and stressed the amount it cost McCarthy to be elected. He asked them if in view of the fact that the men present had been taken care of they thought it fair for one man to stand all the expense. He said that an earlier meeting had been held at which it was decided to ask the men for a lump sum but it was finally decided to assess them so much a week. Reinhardt then told the men that the whole thing in a nutshell was that they ‘had to come across,’ that they were to be assessed so much a week; ‘If any of you fellows happen to get laid off, don't be asking the reason why. You will know why.’ At the meeting called by the defendant in July there was evidence on which it might have been found that the defendant appeared with a box under his arm, directed that the windows of the room be closed so that what was said might not be overheard and addressed the members of the club; that he referred to them as rats, told them that if they couldn't trust Sullivan they couldn't trust him, that whoever distrusted his friend Sullivan distrusted him, that if they couldn't trust his friends Sullivan, Reinhardt and Walsh there would be no club, that he had their money in the box and they were going to get it back and that nobody was going to have anything on him. The amount which had been paid by the men in weekly installments was given to the men in envelopes by Sullivan and Reinhardt. There were no more meetings of the men after this but Sullivan and Reinhardt continued to ask for and receive money from the men. One of them who had been told by Sullivan that he had to pay $100 into the campaign fund and after paying $10 on account of this purpose refused to pay any more, testified that after he had been later laid off he asked the defendant if the reason was that he did not ‘kick in’ and...