Corcoran v. Com.

• Decision Date: 27 November 1956
• Citation: 138 N.E.2d 348,335 Mass. 29
• Parties: Michael B. CORCORAN v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 348

138 N.E.2d 348

335 Mass. 29

Michael B. CORCORAN v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 1, 1956.

Decided Nov. 27, 1956.

James W. Kelleher, Boston, Robert K. Lamere, Boston, with him, for petitioner.

Arnold H. Salisbury, Asst. Atty. Gen., Daniel J. Finn, Asst. Atty. Gen., with him, for the Commonwealth.

Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS and WHITTEMORE, JJ.

WILKINS, Chief Justice.

The petitioner for writ of error seeks to quash three jail sentences for contempt imposed by a judge of the Superior Court. The case was reserved and reported without decision by a single justice of the Supreme Judicial Court upon the petition as amended, the answer, the stipulation to material facts, and the return of the Chief Justice of the Superior Court.

The case arises out of occurrences subsequent to the decision in Cabot v. Corcoran, 332 Mass. 44, at page 52, 123 N.E.2d 221, decided December 16, 1954, which ordered the entry of a declaratory decree. On January 3, 1955, a motion for entry of a final decree was allowed, and a final decree was entered containing the following: '1. The court declares that the respondent was under no obligation to answer the questions put to him by the commission on March 31, 1954, as set forth in the petition and, therefore, denies the relief sought in prayer 1 of the petition. 2. The court declares that if the respondent is again summoned before the commission while it is in existence in consequence of c. 80 of the Resolves of 1954 or under any statutory extension, ¹ it will be his duty to answer those and any other questions relating to the subjects which the commission is authorized to investigate, and that if he claims privilege not to incriminate himself [italics supplied] he cannot thereafter be prosecuted or subjected to penalty or forfeiture in any tribunal of this Commonwealth for or on account of any matter or thing concerning which he may be required to testify or produce evidence or for or on account of any disclosure of the circumstances of any offence, the sources from which, or the means by which evidence of its commission or of his connection with it may be obtained or made effectual for his conviction.' ²

On January 7, 1955, the petitioner was adjudged guilty of what the stipulation describes as 'three criminal contempts of court,' and on January 10, 1955, was sentenced to be committed to jail for one year for each contempt, the sentences to be served concurrently. The judgments of contempt were made in a hearing upon an application to compel testimony filed by the commission in the Superior Court, Suffolk County, on January 6, 1955. The application was docketed 'In re: Michael B. Corcoran, Number 69,262 Eq.'

Pursuant to an order for notice returnable January 7, 1955, the petitioner appeared and filed an answer. At a hearing in the Superior Court, evidence was introduced with respect to the appearance of the petitioner before the commission on January 6. A stenographic transcript of the hearing before the commission showed that after the petitioner was sworn and before he was asked questions, the commission voted to grant immunity from prosecution under c. 80 of the Resolves of 1954; that subsequent to the vote the petitioner was asked fifty-eight questions, forty being those set forth in the petition in Cabot v. Corcoran; and that to each question the petitioner made the following response: 'I refuse to answer under art. 12 of the Declaration of Rights of the Massachusetts Constitution and the Fifth and Fourteenth Amendments of the Federal Constitution.' After giving the responses the petitioner was not ordered by the commission to answer any questions.

The petitioner, called as a witness in the Superior Court by counsel for the commission, testified that the transcript of testimony was correct. The judge read and explained to the petitioner the last paragraph of the opinion in Cabot v. Corcoran, and stated: 'I now find as a matter of law, that upon the evidence before me and upon the stipulation that the transcript states properly what took place, and accurately, that upon January 6, 1955, the commission created for the investigation of organized crime and organized gambling within the Commonwealth of Massachusetts summonsed Michael B. Corcoran, the present respondent, and that Michael B. Corcoran there appeared. I find and rule as a matter of law that the commission took action and held its meeting while in existence in consequence of c. 80 of the Resolves of 1954, and I find from the facts and examination of the cases, that these questions relate to the subjects which the commission is authorized to investigate. I find that the respondent has claimed privilege not to incriminate himself and has claimed it under art. 12 of the Declaration of Rights of the Constitution of this Commonwealth, and arts. 5 and 14 of the Constitution of the United States * * *. Mr. Corcoran, I now order you to answer these questions that have been put to you by the commission and which have been read in the proceedings now being conducted, in view of the fact that you have been granted immunity in accordance with the terms set forth in the decree of this court.' The petitioner's attorney excepted. Thereafter the judge asked the petitioner whether he would obey the order. The petitioner answered, 'With all respect I am unable to state what action I shall take until the order is filed and my counsel has had an opportunity to advise me with respect to whether it is valid and to appeal if he considers it erroneous.' The judge then stated, 'In view of the explicit terms of the order as given I shall now adjudge and declare that you are in contempt of this court.' In the arguments before us this has been referred to as the second contempt.

The judge then stated, 'I now desire to present another series of questions to you, Mr. Corcoran. Do you decline to answer these questions which were put to you yesterday by the commission, if the commission should reconvene hereafter, that is following this court hearing, and you should again be brought before it?' Following an exception by his counsel the petitioner was directed to answer, and did answer as follows: 'With all respect I shall refuse to answer the questions until ordered to do so by valid and effective order of the court.' The judge stated, 'I now order you to answer these questions and any other questions relating to the subjects which the commission is authorized to investigate. Do you intend to obey the order?' Subject to his exception the petitioner was directed to answer and did answer as follows: 'With all respect I shall refuse to answer the questions until ordered to do so by a valid and effective order of the court.' The judge then stated subject to the petitioner's exception, 'Having ordered you to answer these questions as already have been set forth, I now adjudge and declare that you are in contempt of this court.' In the arguments before us this has been referred to as the third contempt.

The judge next stated: 'And I further declare and adjudge that the questions put by the commission on January 6, 1955, having been proper for the purposes of the commission, the failure of the respondent after having secured immunity, then and there constituted contempt, and further I adjudge and decree, declare that you, sir, are in contempt.' The following then occurred: 'Counsel for the petitioner: Save my exception to this. May I ask in that connection, is Your Honor ruling that Mr. Corcoran committed contempt yesterday? The judge: I would assume that it may, indeed, be an invocation of nunc pro tunc, but I am satisfied that from what I have heard and the study of the transcript, a contempt was committed, particularly in view of the declaration contained in the decision of the Supreme Judicial Court.' In the arguments before us this has been referred to as the first contempt.

On January 10, 1955, the petitioner was sentenced as hereinbefore stated. The judge said in part: 'It remains, however, for me to add in connection with the terms of the commitment order, a further statement, which I will ask be included in the mittimus. In so far as this court has the power, and by this court I have reference to myself as a justice of this court, I now declare that in the event that Corcoran shall comply with the order of this court during the life of the commission, and if the court is satisfied upon such certification by the commission that Corcoran has purged himself of the contempts of which he has [been] adjudged guilty, then his sentence shall be vacated and he shall stand discharged of the further necessity for confinement. In the event, however, that Corcoran does not purge himself of these contempts by answering the questions during the lifetime of the commission, and in the event that the commission shall have terminated its proceedings in accordance with the resolution establishing it through the expiration of its term of office, then it is the intention of this court that he shall remain confined to serve the sentences hitherto imposed upon him. * * * There is but one other thing I desire to have appear in the record. That is the opinion of this court that the contempts which have been committed are...