Dolan v. Commonwealth

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 23 N.E.2d 904,304 Mass. 325
• Parties: DOLAN v. COMMONWEALTH.
• Decision Date: 29 November 1939

304 Mass. 325
23 N.E.2d 904

DOLAN
v.
COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 29, 1939.

Reservation and Report from Supreme Judicial Court, Suffolk County.

Edmund L. Dolan was adjudged guilty of contempt for obstructing and interfering with the court's administration of justice by conspiring with others to corrupt and influence jurors, and he brings error.

Judgment affirmed.

[23 N.E.2d 906]

E. M. Dangel, T. F. Callahan, and L. E. Sherry, all of Boston, for plaintiff in error.

E. O. Proctor, Asst. Atty. Gen., for Commonwealth.

[23 N.E.2d 907]

FIELD, Chief Justice.

A writ of error issued from the Supreme Judicial Court upon a petition brought therefor by the plaintiff in error, see G.L.(Ter.Ed.) c. 250, §§ 1, 2, 9-13, to reexamine a judgment entered in the Superior Court, whereby the plaintiff in error was sentenced to be confined in the common jail for a contempt of which he had been adjudged guilty. A single justice of this court reserved and reported the case, see G.L.(Ter.Ed.) c. 211, § 6; Liggett Durg Co. Inc. v. Board of License Commissioners of North Adams, Mass., 4 N.E.2d 628, and cases cited, ‘upon the petition and assignment of errors as amended, the writ of error, plea [in nullo est erratum], writ of scire facias and the record and process herein filed of the Superior Court for the transaction of criminal business in Suffolk County, for the consideration of the full court.’ The writ of error addressed to the Chief Justice of the Superior Court commanded him to ‘distinctly and openly send us the record and process of the suit aforesaid, with all things touching them.’ The Chief Justice filed a return containing, as he certified, such record and process ‘with all things touching the same.’ But no transcript of the evidence taken at the trial on the merits was sent to the Supreme Judicial Court. The single justice further reported as follows: ‘* * * when the cause came before me the plaintiff in error brought forward a motion that ‘suitable process' issue to the end that a transcript of the evidence taken at the trial on the merits in the court below be made a part of the record; that I denied the motion subject to the exception of the plaintiff in error, and that it is agreed that if the denial of the motion was error, a duly authenticated transcript of the evidence before referred to may be presented to the Full Court for its consideration.’

The record of the Superior Court embodied in the return of the Chief Justice discloses that sentence was imposed upon the plaintiff in error in the following terms: ‘It was therefore considered by said Court that said Dolan, for his contempt, be punished by confinement in the Common Jail, in siad County of Suffolk, there to be kept according to the rules of the same for the term of two and one-half years, and that he stand committed until he be removed in pursuance of said sentence.’ See G.L.(Ter.Ed.) c. 220, § 14. The order of the court adjudging the plaintiff in error in contempt, as the record shows, was in these terms: ‘Edmund L. Dolan, the Court adjudges you in contempt for that you knowingly, willfully and with intent to obstruct and interfere with the course of justice did enter upon and follow a course of action which had a tendency unlawfully to obstruct and interfere with said course of justice and which in fact did so obstruct and interfere with said course of justice, in that you did conspire with Robert Dinsmore and J. Walter Quinn to corrupt and influence unlawfully in their capacities as jurors persons duly serving a such in this court at a time when it was possible that some or all of them would be drawn to sit in the trial of indictments in which you, Edmund L. Dolan, and said J. Walter Quinn were charged with having committed crimes; and in that by means and in pursuance of said conspiracy you did offer bribes to certain of said jurors and did give bribes to certain of said jurors and did unlawfully solicit certain of said jurors, and all to the end that they should in your behalf corruptly and unlawfully act contrary to their oaths and duties as jurors if they should be accepted to sit in such trial; and in that by means and in pursuance of said conspiracy you did succeed in making impossible a fair trial of said indictments at the time set therefor.’

Whatever may have been the common law it is established that under existing statutes, see G.L.(Ter.Ed.) c. 211, § 3; c. 250, § 9, ‘ a sentence to punishment for a distinctively criminal contempt is a judgment in a criminal case, which may be re-examined upon a writ of error.’ Hurley v. Commonwealth, 188 Mass. 443, 445, 74 N.E. 677, 678,3 Ann.Cas. 757;Blankenburg v. Commonwealth, 260 Mass. 369, 374, 375, 157 N.E. 693. No contention is made that a writ of error does not lie in this case. The question for determination upon this writ of error is whether in the trial of the case on its merits error was committed in respect to any matters as to which error is assigned. Preliminary to this question, so far as certain assignments of error are concerned, is the further question reported by the single justice of this court, in substance, whether it was error for him to deny the motion of the plaintiff in error that “suitable process' issue to the end that a transcript of the evidence taken at the trial on the merits in the court below be made a part of the record.' For convenience the plaintiff in error, who was the defendant in

[23 N.E.2d 908]

the Superior Court, is referred to herein as the defendant, and the Superior Court as the trial court.

The course of proceedings in the trial court as disclosed by copies of documents and a copy of the docket entries therein embodied in the return of the Chief Justice was as follows: A complaint for contempt against the defendant was filed for the Commonwealth by the assistant district attorney on April 20, 1938. This complaint alleged that there were pending in the Suffolk Superior Criminal Court four indictments against the defendant, and that on March 21, 1938, the indictments were set down for trial for Monday, April 18, 1938. The complaint contained further allegations in paragraphs numbered 3, 4 and 5, set out in a footnote.¹ The complainant in the fifth paragraph of the complaint ‘complains that the conduct of the said Edmund L. Dolan,’ as set forth in the complaint, ‘tended to interfere with, impede and obstruct the proper administration of justice and constituted contempt of this Honorable Court.’ The complainant prays that due process be issued to bring the defendant before the court and show cause why he should not be adjudged in contempt.

The defendant filed a ‘motion for bill of particulars,’ to which the Commonwealth filed answers. The defendant filed a ‘motion for further particulars,’ which was denied in part and allowed in part. The Commonwealth filed answers to the motion as allowed. The substance of these answers is set forth in a footnote.² The defendant

[23 N.E.2d 909]

filed a motion that the court ‘order the complainant to file interrogatories to the defendant,’ a motion to quash paragraph numbered 3 of the complaint for the reasons that ‘1. It does not set forth any criminal contempt. 2. It is clearly insufficient to sustain a judgment against the defendant,’ a motion that said paragraph 3 be expunged for the same reasons, and a motion to quash the complaint for the reason that it ‘charges the accused disjunctively, so as to leave it uncertain what is relied on as the accusation against him.’ These motions were denied and the defendant excepted.

The defendant filed a sworn answer to the complaint, and, at the trial, made a motion for trial by jury which was denied. The return sets out seventy requests by the defendant for rulings with notations of the action of the court thereon, and also sets out a request by the defendant ‘that the court report this case to the Supreme Judicial Court for its determination.’

1. There was no error in the denial by the single justice of the defendant's motion that “suitable process' issue to the end that a transcript of the evidence taken at the trial on the merits in the court below be made a part of the record.' Denial of this motion was in accordance with the settled law of this Commonwealth relating to writs of error in cases of criminal contempt, as stated in Blankenburg v. Commonwealth, 260 Mass. 369, 377, 157 N.E. 693, that evidence ‘heard at the trial on the merits is no part of the record and hence cannot be considered on a writ of error.’ See also Blankenburg v. Commonwealth, 272 Mass. 25, 28, 33, 172 N.E. 209, 73 A.L.R. 808. In the first Blankenburg case it was sought not only by suggestions of diminution of the record, but also by a writ of certiorari to have brought before the Supreme Judicial Court the evidence at the trial of the proceeding for criminal contempt, but the single justice ruled adversely, and the full court said that ‘The ruling that the plaintiff was not entitled to a writ of certiorari was right. The evidence heard at the trial before the judge is no part of the record in the case, even though it was taken stenographically by a commissioner. * * * Certiorari is not designed in any event to secure a report of evidence. Such report would be an incumbrance and no part of the record.’ 260 Mass. at page 377, 157 N.E. at page 697. The remark in Woodbury v. Commonwealth, Mass. 3 N.E.2d 779, 781-where review upon a writ of error was sought in a case of criminal contempt-that the ‘record does not disclose the evidence presented at the trial of the contempt proceedings in the Superior Court’ cannot rightly be regarded as casting doubt upon the proposition settled in the earlier case. This remark shows merely recognition of the fact that the evidence was not included in the record and does not import that this evidence could rightly have been so included. It does not differ in significance from the remark in Blankenburg v. Commonwealth, 272 Mass. 25, 33, 172...