Commonwealth v. O'Rourke
| Decision Date | 30 March 1942 |
| Citation | 40 N.E.2d 883,311 Mass. 213 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | COMMONWEALTH v. JAMES F. O'ROURKE & others. |
February 2, 1942.
Present: FIELD, C.
J., QUA, COX, & RONAN, JJ.
Elections Conspiracy, Evidence, Failure to produce evidence. Practice Criminal, Venue.
A finding of guilty of conspiring to make, sign, file and use false nomination papers for a certain candidate for public office was warranted against a defendant who was in charge of a headquarters for the candidate from which there had been sent out to be certified a considerable number of wholly forged nomination papers, which, to a person without special experience but having occasion to examine them might be found to have the appearance of being forged, and who employed and directed the other persons working at the headquarters and took charge of the papers until they were turned over to the candidate for filing; but evidence did not warrant a finding of guilty against a defendant who was an employee of the first defendant in charge of circulating the papers in a certain territory and who delivered and called for some of the papers; nor against a defendant who was employed merely as a messenger to deliver and call for the papers, although he was told by certifying officials that they doubted the validity of the papers; nor against a defendant who was employed merely as a chauffeur by the first defendant.
Venue of an indictment for conspiracy to make, sign, file and use false nomination papers for public office was properly laid in a county wherein was situated one of several cities to which forged papers were taken for certification from the defendants' headquarters in another county, even though an agent of the defendants who took them there was innocent.
Evidence that a defendant charged with conspiracy to make, sign, file and use false nomination papers for public office had knowledge of the statutes which he conspired to violate was not necessary in order to prove his criminal intent.
At the trial of an indictment for conspiracy to make, sign, file, and use false nomination papers for public office, after the Commonwealth had introduced evidence that a number of papers were wholly forged, and testimony by several purported signers that they had not written their names on the papers, an inference adverse to the defendants could be drawn from their failure to call any of the purported signers as witnesses.
INDICTMENT, found and returned on October 10, 1940, and tried before Forte, J.
J. P. White, for the defendants. J. R. Wheatley, Assistant District Attorney, for the Commonwealth.
The four defendants O'Rourke, Wallace, James S. Kerrigan, and Thomas J. Kerrigan, were indicted jointly, together with "John Doe and Richard Roe," whose true names and more particular descriptions are stated to be unknown to the grand jurors, in four counts for conspiracy to (1) file, (2) make, (3) sign, and (4) use false nomination papers to secure the placing upon the ballot of the name of William H McMasters as a candidate for Governor. See G. L. (Ter. Ed.) c. 56, Section 13, and G. L. (Ter. Ed.) c. 53, Section 6, as amended, Section 7, as amended, Section 9. All four of the defendants specifically named have been convicted on each count.
A basic question is whether there was evidence to warrant the verdicts of guilty. The substance of the evidence tending to show the falsification of papers as it appears in the printed record and as it comes to us in the form of original nomination papers and photostatic copies of papers submitted to the jury and incorporated by reference in the bill of exceptions is now set forth. A group of nomination papers in behalf of McMasters, certified by the registrars of voters of Quincy, was filed in the office of the Secretary of the Commonwealth. A second group of papers in behalf of McMasters, certified by the election commissioners of Boston, was filed in the same office. A third group of papers in behalf of McMasters was produced from the office of the city clerk in Brockton. The papers of this group were never certified and had remained in Brockton. Each of the papers in the three groups bore a printed number before which was printed the letter "G." All the signatures purporting to be those of voters on the Quincy, Boston and Brockton papers marked "G" were forgeries. The same handwritings appeared many times in different names on these papers and on papers filed from other places, but the same writing appeared only once or twice on each paper. The same group of handwritings, with some exceptions, appeared on the Quincy papers that appeared on the Brockton papers, and when the same handwriting appeared more than once on any particular paper it appeared on lines separated from each other by a number of other signatures. It could have been found that the same handwriting sometimes appeared in the names of both men and women voters. Five persons testified that signatures on the Brockton papers purporting to be theirs had not been made by them. Plainly this evidence warranted a finding that the three groups of papers marked "G" were false and fraudulent, and that they had been corruptly prepared by a number of persons who had conspired together for that purpose.
The next question is whether there was evidence to warrant the finding that the several defendants were members of the conspiracy. There was evidence of these facts: In the latter part of June, 1940, the defendant Wallace was introduced to the candidate McMasters. Wallace hired "a headquarters" in South Boston, and after the latter part of June was circulating McMasters's papers. On July 5 he hired an office in the Foresters' Building at K and
4th streets, stating that he wanted it "for the purpose of circulating nomination papers" for McMasters for Governor as the candidate of the "Old Age Pension Party." Wallace paid the rent and took a receipt in the name of the "National Old Age Pension Party." About July 15 or 16 Wallace hired a hall in the same building, which he occupied for three days, stating that he needed it "to check up on nomination papers coming back." There were in the hall two tables which the judge in his charge referred to as eight feet long. About fifteen or twenty men and girls went in and out. There were on the premises "election books" put out by the Boston election commissioners and "precinct books." On July 13, five hundred nomination papers were printed for Wallace who, when he ordered them, told the printer to call when they were ready either one of two telephone numbers, one of which was the number of the telephone at the Foresters' Building and the other of which was the number of telephone installed in July, 1940, at "Forester's Hall" at the application and under the direction of the defendant O'Rourke, to be listed under the name of the "National Pension Party." When the printer did call one of these numbers "a man" came for the papers and left an order to print an additional five hundred. These were marked "E" and were called for by "a man," who gave an order to print a third five hundred papers. The papers of this third lot were the papers marked "G," of which the jury could find that the Quincy, Boston and Brockton papers introduced in evidence had been forged. Wallace paid for the first lot of papers. The two other lots were paid for by "the man" who called for them. On the night before the last day for filing papers McMasters received two hundred fifty papers from Wallace.
As to the defendant O'Rourke there was evidence that, besides arranging for the telephone, he was present when Wallace made inquiries about hiring the office, but "Wallace did all the talking"; that on fifty or seventy-five occasions O'Rourke had left McMasters's papers in the office of the Boston election commissioners, and he had signed receipts for them after they were certified.
As to the defendant James S. Kerrigan there was evidence that he assisted in carrying the tables upstairs to the hall; that his signature had been placed across the corner of the "G" papers from Quincy introduced in evidence; that he called at the office of the city clerk in Quincy, presented a receipt, and asked for the McMasters papers mentioned in it; that an assistant registrar of voters told him that "the papers did not look genuine" and that Kerrigan "should look them over"; and that he replied that he had nothing to do with getting the names and that to the best of his knowledge the people who had circulated the papers were getting proper signatures; that about July 24 James S. Kerrigan came for papers to the city clerk's office at Brockton in order to deliver them to McMasters's office; that James S. Kerrigan's name had been written on them by an employee in the city clerk's office as that of the person who had brought in the papers; that the city clerk told him that he did not like the looks of the papers and that they had not been certified; and that Kerrigan said he did not circulate them.
As to the defendant Thomas J. Kerrigan there was evidence (admitted against him alone) that he had stated in September, 1940, that in July he had taken a job "driving the defendant Wallace and others," and had received $200 for a month's work; and that he had driven the defendant O'Rourke to Boston City Hall on numerous occasions and had gone with him to a printing establishment to get papers.
There was evidence that all four of the defendants were seen daily at the Foresters' Building "until the tenancy was up the last part of July."
The defendant Wallace testified in substance that he agreed to circulate nomination papers for McMasters, hired the headquarters in the Foresters' Building, organized the circulation of papers in different parts of the...
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