Dolan v. Commonwealth

• Decision Date: 28 November 1939
• Citation: 23 N.E.2d 904,304 Mass. 325
• Parties: EDMUND L. DOLAN v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 325

23 N.E.2d 904

EDMUND L. DOLAN v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

November 28, 1939

November 18, 1938.

Present: FIELD, C.

J., DONAHUE LUMMUS, & QUA, JJ.

Error, Writ of. Contempt. Practice, Criminal, Proceedings for contempt, Jury trial, Sentence. Pleading, Criminal, Complaint, Bill of particulars. Agency, What constitutes. Conspiracy. Jury and Jurors.

Evidence at a hearing on the merits in the Superior Court resulting in a judgment of criminal contempt properly was not included in the record returned by that court upon a writ of error to review the judgment.

The oath of an alleged contemnor is not a bar to his prosecution for criminal contempt.

Particulars which the defendant in a complaint for criminal contempt not committed in the presence of the court, is entitled as of right to have from the Commonwealth are only such as together with the allegations of the complaint, satisfy the requirement that he be so advised of the charges against him as to have a reasonable opportunity to meet them.

A complaint for criminal contempt, setting forth in several numbered paragraphs statements as to alleged conduct of the defendant tending to obstruct the proper administration of justice through solicitation of jurors, was construed, not as setting forth separate acts of contempt in successive counts, but as charging a single contempt through a course of action, each numbered paragraph containing an element thereof; and motions to expunge and to quash a paragraph dealing solely with a conspiracy with others to do such acts properly were denied.

The several averments of a complaint for criminal contempt, setting forth in numbered paragraphs a course of action as a single contempt although they stated acts of the defendant in conspiracy with other. and also acts through others as agents as well as individual acts on his part, were not mutually inconsistent or open to the objection of uncertainty, and a motion that the complaint be quashed as an entirety properly was denied. A coconspirator may be the agent of another coconspirator.

One accused of criminal contempt has no right to a trial by jury on that charge.

A request to rule that "corrupting a juror or jurors does not by itself constitute an obstruction to the court in the performance of its duty" properly was denied at the hearing of a complaint charging criminal contempt of court.

The provisions of G.L. (Ter. Ed.) c. 268, Section 13, making it a crime to corrupt or attempt to corrupt a juror with intent to influence his decision do not preclude criminal contempt proceedings in the Superior

Court based on acts described in the statute.

A sentence of two and one half years' confinement in the common jail upon conviction of contempt of court in a course of conduct tending to obstruct the course of justice through attempted corruption of jurors was not excessive or unreasonable.

On a writ of error only matters assigned as error by the plaintiff in error are open for consideration.

PETITION, filed in the Supreme Judicial Court for the county of Suffolk on May 27, 1938, and afterwards amended, for a writ of error.

The case was reserved and reported by Dolan, J.

E. M. Dangel, (T.

F. Callahan & L.

E. Sherry with him,) for the plaintiff in error.

E. O. Proctor, Assistant Attorney General, for the Commonwealth.

FIELD, C.J. 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, Sections 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, Section 6; Liggett Drug Co. Inc. v. License Commissioners of North Adams, 296 Mass. 41 , 44, 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 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 said 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, Section 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, wilfully 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 as 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, Section 3; c. 250, Section 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. Blankenburg v. Commonwealth, 260 Mass. 369, 374-375. 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 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. ^[*] 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. ^[*] The defendant filed a motion that the court "order the...