Commonwealth v. Stasiun , 349 Mass. 38 ( 1965 )

Spalding, J.

These are appeals from convictions under two indictments. In one (hereinafter called the solicitation indictment) Ernest C. Stasiun, Michael J. Manning and Richard B. Rymszewicz were charged with the offence (G. L. c. 268, § 8) of soliciting a bribe from Paul R. Yer-mette to influence Stasiun’s official action as a member of the Executive Council. In the other (hereinafter called the conspiracy indictment) the same defendants were charged with conspiring to commit the offence charged in the solicitation indictment. The trial, which was subject to G. L. c. 278, §§ 33A-33G, resulted in verdicts of guilty on each indictment against all the defendants. All appealed.

There was evidence of the following. Early in January, 1959, Paul Yermette, a resident of New Bedford, learned that a change of quarters for its New Bedford office was being contemplated by the registry of motor vehicles. On January 12 Yermette talked with one MacDonald, who was in charge of the New Bedford registry office, and proposed to lease to the registry a portion of a building which he was about to construct on Kempton Street. A week later Yer-mette, MacDonald and two other registry employees, Clark and Riley, went to the Boston office of the registry to discuss Yermette’s proposal with Alfred Devine, a deputy registrar who supervised the leasing of district offices. In the course of the discussion, Devine suggested that Yermette communicate with his Governor’s Councillor “back home” because leases had to be approved by the Council.

Upon returning to New Bedford, Vermette, MacDonald, Clark and Riley called at the office of the defendant Stasiun, a member of the Governor’s Council from the First District, which included New Bedford, for the purpose of discussing the proposed lease. After the details of the lease had been explained to him, Stasiun told Vermette that “he would go with . . . [them] all the way.”

A few days later, Stasiun called Vermette on the telephone and told him that he would like to see him in Boston to “talk about the lease.” On January 27 Vermette, accompanied by a friend, Arthur Powell, called on Stasiun at his room in a Boston hotel. The defendant Manning was with Stasiun when they entered the room. Manning and Stasiun had known each other for four or five months. Manning had advised Stasiun in connection with his campaign for election to the Council and had written speeches for him. Stasiun asked Vermette whether Powell was a partner and Vermette replied that he was “just a friend.” Stasiun then produced a bottle of whiskey and telephoned room service for ice and soda. When it arrived, Stasiun prepared drinks for Vermette and Powell. Stasiun then asked Powell to go downstairs with him to have a drink at the bar. Powell stated that he already had one but Stasiun said that it was not his “type” and they both departed for the bar, leaving Manning and Vermette alone together in the room. Manning then said to Vermette, “What we want from you now is a thousand dollars, and five hundred dollars when your building is complete, or you won’t get your lease.” Vermette refused. Manning then told Vermette that “politics were cruel and brutal, and campaigns and elections cost money. ” Stasiun and Powell returned a few minutes later. Their conversation at the bar was general and had nothing to do with the lease. As they entered the room, Vermette was heard to say, “Like hell; I’m not paying no fifteen hundred dollars.” Turning to Powell, Ver-mette said, “Let’s get out of here,” and they both left.

Late in February, Vermette, in response to a telephone call from Stasiun, went to see him in his New Bedford office. Stasiun told him that he was upset because he had heard that Vermette had been to a party and “had said nasty things about him, about the fact that he had asked . . . [Vermette] for fifteen hundred dollars.” Vermette replied, “Well, that’s too bad. That’s what you did.” Thereupon Stasiun took a slip of paper and wrote the figure “8” on it and showed it to Vermette, saying, “Pay me this. I’ll see that you get your lease tomorrow. And if you don’t give me a commitment tonight, I’ll see that you never get your lease.” Vermette left, slamming the door.

During this period Vermette was negotiating the details of the proposed lease with the registry of motor vehicles. A lease, dated February 27, 1959, was drawn up for a five year term, beginning July 1, 1959. On March 2, the lease was sent to Vermette for his signature. He signed it and “sent it back into Boston.” The executed lease was forwarded to the Governor and Council with a covering letter, dated March 6, from the acting State superintendent of buildings recommending its approval.

The matter of the lease was first placed on the agenda of a meeting of the Council held on April 2, 1959, and it was voted that it be “held.” On April 9, it was again “held.” On May 14 the subject appeared on the agenda and Stasiun moved and voted for its rejection; the motion did not carry. On May 21 one of the Councillors moved that the lease be approved, but this motion was defeated, Stasiun and four other Councillors voting against the motion.

At a meeting of the Council early in June, Devine, deputy registrar of motor vehicles, spoke in favor of the lease. While Devine was being questioned by a member of the Council, Stasiun left the room, stating that “he didn’t want anything done about the lease in his absence.”

On a Friday in late May or early June Stasiun called Vermette on the telephone, but Vermette hung up before there was an extensive conversation. On the afternoon of the following day the defendant Rymszewicz, a cousin of Stasiun, called on Vermette and said he wanted to talk with him. Vermette was acquainted with Rymszewicz but they were not intimate. In the course of the ensuing conversation, Rymszewicz said, “What’s wrong? Can’t you get along with Doc?”¹ Vermette replied, “No. He wants me to pay him . . . fifteen hundred dollars; and I won’t.” After stating that Stasiun was a “reasonable guy,” Rym-szewicz said, “Why don’t you give me five hundred dollars for him, and I’ll see that you get your lease.”

The lease was approved on June 25,1959, but the vote of the individual Councillors on the matter does not appear.

One evening, early in July, Stasiun went to see Vermette. In the course of their conversation Stasiun asked Vermette for $500. Vermette refused, saying “Why do I have to pay? The lease has already been approved.” Stasiun replied, “Well, . . . you’ve already cost me four hundred dollars.” He then explained that he had to pay $100 to four other Councillors to vote for or against the lease, as he might decide. This conversation, which was heated and loud, was overheard by Vermette’s wife, who was in another part of the house.

The Solicitation Indictment.

The solicitation indictment charges the defendants with violating G. L. (Ter. Ed.) c. 268, § 8. This section makes it an offence for an executive officer to corruptly request or accept “a gift or gratuity or a promise to make a gift or to do an act beneficial to him, under an agreement or with an understanding that his vote, opinion or judgment shall be given in any particular manner, or upon a particular side of any question, cause or proceeding, which is or may be by law brought before him in his official capacity.”² The indictment charges that the defendants’ solicitations occurred “at various times between January 31, 1959, and July 31, 1959, the exact dates being . . . unknown.” While the statute speaks only of a “legislative, executive, judicial, county or municipal officer,” Commonwealth v. Mannos, 311 Mass. 94, 107-111, held that a private citizen could be found guilty under a joint indictment charging him and a municipal officer with the offence of requesting and accepting bribes. Likewise, Manning and Rymszewicz, both private citizens, could be found guilty under a joint indictment charging them and Stasiun, an executive officer, with solicitation.

The defendants contend that the indictment does not charge a crime known to the law for the reason that it charges solicitation as a continuing offence. This objection was expressly raised by the defendants’ motions to quash. Commonwealth v. Fuller, 163 Mass. 499. Commonwealth v. Andler, 247 Mass. 580, 581.

The indictment does not allege a continuing offence in the sense recognized in Wells v. Commonwealth, 12 Gray, 326 (keeping a house of ill fame), Commonwealth v. Peretz, 212 Mass. 253, 254 (deriving support from earnings of a prostitute), and Commonwealth v. Runge, 231 Mass. 598, 600 (practising medicine unlawfully). In such cases, if a continuing crime is charged, it is the general practice, throughout the period of time alleged, that constitutes the offence. Here the single offence is not a continuing general practice of soliciting bribes, but rather the solicitation of a bribe from Yermette for the favorable vote of an executive officer on one specific matter before him. The request for the gratuity, being unproductive when first made, was repeated. But whether the request was repeated in one meeting, or in several meetings on a single day, or in meetings separated by days or weeks rather than minutes, each separate request was an integral part of the wrongful criminal solicitation, from one person, of one payment for one favor. Compare Commonwealth v. Fuller, 163 Mass. 499, which invalidated an indictment charging adultery at divers times between stated dates, because adultery is not a continuing offence and because several charges of separate offences may not be included in one count. That case cannot be considered as authority for the proposition that the crime of requesting a single bribe may not have a continuing aspect.

It has been held elsewhere that where it appears that successive takings are actuated by a single, continuing criminal impulse or intent or are pursuant to the execution of a general larcenous scheme, such successive takings constitute a single larceny, regardless of the extent of the time which may have elapsed between each taking. People v. Bailey, 55 Cal. 2d 514. People v. Cox, 286 N. Y. 137, 141. West v. Commonwealth, 125 Va. 747. Regina v. Bleasdale, 2 C. & K. 765. Regina v. Shepherd, 11 Cox C. C. 119. Regina v. Firth, 11 Cox C. C. 234. See annotation in 136 A. L. R. 950. Anderson, Wharton’s Criminal Law & Procedure, § 450, and cases cited in note 7.

The test of single intent or general scheme is just as appropriate for the crime of soliciting bribes as it is for larceny. Solicitation of a bribe may take the form of protracted negotiations. An offer to give or accept a bribe, while it is outstanding, has a continuing effect. See Commonwealth v. Lee, 149 Mass. 179, 184, in which larceny by false pretences was continuous where goods were obtained on different occasions, but under the same continuing misrepresentation. Moreover, the fact that all the solicitations related to the approval of the registry of motor vehicles lease with Vermette supports the conclusion that there was one overall scheme.

The statute (§8) defines the crime that the indictment charges: “A[n] . . . executive . . . officer who corruptly requests ... [a bribe for his] vote . . . upon a particular side of any question . . . before him” shall be punished. It is inconsequential that separate solicitations could, as is well established, be charged as separate offences. Commonwealth v. Mannos, 311 Mass. 94, 113. Commonwealth v. Beal, 314 Mass. 210, 227. The motions to quash were properly denied.

All the defendants filed motions for directed verdicts. They were properly denied. There was ample evidence that Manning in late January, Stasiun in late February, and Bymszewiez in late May or early June had directly solicited a bribe from Vermette. It was not necessary to prove that Stasiun was present when Manning and Bym-szewicz solicited Vermette. In Commonwealth v. Mannos, 311 Mass. 94, 110, we held that a private citizen could be convicted of requesting and accepting bribes if the proof established that he had “participated in every essential step” of the felonious conduct. Here, the crime alleged is solicitation. Manning and Rymszewicz committed that of-fence as soon as each requested a bribe.

In the Mannos case, the defendant’s conviction as to some of the counts was reversed because he was not present when payments were made and he had not assented to them. On those counts, it was the opinion of the court that he had not participated to a degree sufficient to convict him as a principal for requesting and accepting bribes; the proof established only that he was an accessory before the fact. Thus, the Mannos case does not stand for the proposition that a public officer must be present at a solicitation before a private citizen can be found guilty of that offence.

Manning also contends that under Commonwealth v. Runge, 231 Mass. 598, 600, the evidence of solicitation on January 27, 1959, was inadmissible against him. We disagree. This, as stated, was not a charge of being in the business of soliciting bribes from Yermette throughout the period from January 31, 1959, to July 31, 1959. The basis of the rule that time is of the essence under indictments charging a continuing offence of the kind described in the Runge ease is that part of the description of the offence charged is the duration of time during which it is charged the acts took place. So, in Commonwealth v. Robinson, 126 Mass. 259, as stated in the Runge case (231 Mass, at 600), “the defendant was complained of for keeping a liquor nuisance between January 1 and August 20. He pleaded in bar that he had been acquitted on a complaint charging him with having kept the same illegal liquor nuisance from January 1 to May 28. It was held that the acquittal was a bar. The decision was made on the ground that a continuing of-fence for a period named is one indivisible offence, and since the defendant in the case then before the court had theretofore been acquitted of the offence for a portion of the time in question on the later charge he had been acquitted of the offence later charged. It follows from this that the duration of time specified in case of a continuing offence is a part of the description of the offence charged. It is for this reason that evidence of acts committed outside the time specified are not admissible in evidence.”

No such consideration is present here. The essential charge is that the three defendants on divers occasions solicited a bribe for Stasiun’s favorable vote on the registry lease. Any defendant tried on that charge could not again be tried for that offence. Manning having been charged as a principal in the single wrong, his conviction without error, or his acquittal, as the ease may be, will end the matter in all its aspects as to him. Precise time was not essential (G. L. [Ter. Ed.] c. 277, § 20) and the evidence of the January 27,1959, solicitation was admissible against Manning.

We turn now to assignments relating to the charge. The judge in effect instructed the jury that if they found that Manning, Stasiun and Eymszewicz had entered into a conspiracy to solicit a bribe, then, by virtue of their agreement, all could be found guilty of the substantive offence of solicitation on proof that only one committed that offence and without proof that the others participated in any way in the solicitation.

The rule in this jurisdiction is to the contrary. To be liable for the substantive offence, a coconspirator must participate or aid in the commission of it. See Commonwealth v. Knapp, 9 Pick. 495, 518; Commonwealth v. Lucas, 2 Allen, 170; Commonwealth v. Clune, 162 Mass. 206, 214; Commonwealth v. Lavery, 255 Mass. 327, 333. Long ago this court cautioned that the proof of conspiracy, without more, did not justify a finding that a conspirator had committed the offence which was the object of the conspiracy. In Commonwealth v. Knapp, 9 Pick. 495, 518-519, it was said by Putnam, J., “We do not however assent to the position which has been taken by the counsel for the government, that if it should be proved that the prisoner conspired with others to procure the murder to be committed, it follows as a legal presumption, that the prisoner aided in the actual perpetration of the crime unless he can show the contrary to the jury. The fact of the conspiracy being proved against the prisoner is to be weighed as evidence in the case having a tendency to prove that the prisoner aided, but it is not in itself to be taken as a legal presumption of his having aided unless disproved by him.”

If the rule were otherwise, the fundamental distinction between a substantive offence and a conspiracy to commit that offence would be ignored. Each is a separate and distinct offence and each may be separately punished. Fox v. Commonwealth, 264 Mass. 51, 53. Commonwealth v. Stuart, 207 Mass. 563, 571. See Clune v. United States, 159 U. S. 590. “The combination for the illegal purpose or for the use of illegal means is the essence of conspiracy.” Attorney Gen. v. Tufts, 239 Mass. 458, 493. Punishment is imposed for entering into the combination. This is not the same thing as participating in the substantive offence which was the object of the conspiracy. While it has been said that a conspiracy is a “partnership in crime” (United States v. Socony-Vacuum Oil Co. Inc. 310 U. S. 150, 253), that metaphor should not be pressed too far. It does not follow that such a partnership is governed by the same principles of vicarious liability as would apply in civil cases. Our criminal law is founded on the principle that guilt, for the more serious offences, is personal, not vicarious. One is punished for his own blameworthy conduct, not that of others. Perkins on Criminal Law, 550. Sayre, Criminal Responsibility for the Acts of Another, 43 Harv. L. Rev. 689. Compare Gurney v. Tenney, 197 Mass. 457, 466 (civil liability of a conspirator for the misrepresentation of another). To ignore the distinction between the crime of conspiracy and the substantive offence would enable “the government through the use of the conspiracy dragnet to convict a conspirator of every substantive offense committed by any other member of the group even though he had no part in it or even knowledge of it.” United States v. Sail, 116 F. 2d 745, 748 (3d Cir.).³

In some of onr decisions, language may be found to the effect that where parties are working with a common purpose to commit an offence the act of one is the act of all. Commonwealth v. Harley, 7 Met. 462, 465. Commonwealth v. Mulrey, 170 Mass. 103,110. Commonwealth v. Morrison, 252 Mass. 116,123. Commonwealth v. Lane, 254 Mass. 46, 49. Commonwealth v. Jacobson, 260 Mass. 311, 326. Commonwealth v. Mycock, 315 Mass. 262, 267-268. To a certain extent this is true. It clearly is so when the charge is conspiracy. But an analysis of the cases just cited reveals only that where two or more are jointly engaged in the commission of a crime each is criminally liable and the act of one is the act of all. In each case the defendant who was found guilty of the substantive offence had participated to some extent in the commission of that offence. Thus, those cases cannot be considered as authority for the proposition that by merely entering into a conspiracy a defendant thereby incurs criminal liability for the substantive offence committed by his coconspirator. On the contrary, as we said in Commonwealth v. Bloomberg, 302 Mass. 349, 356, “It . . . cannot be held that a conspirator is as matter of law an aider or abettor in the perpetration of the crimes whose commission he has agreed with others to accomplish.”

We are mindful that a different rule now prevails in the Federal courts as a result of the decision in Pinkerton v. United, States, 328 U. S. 640, although prior to that decision the views of the lower Federal courts were conflicting. See United States v. Sall, 116 F. 2d 745 (3d Cir.), and compare Johnson v. United States, 62 F. 2d 32 (9th Cir.). With deference, we are not persuaded to follow the Pinkerton case.⁴ The reasoning of Rutledge, J., in his dissenting opinion (concurred in by Frankfurter, J.), seems to us more convincing. It follows that the instruction of the trial judge was error.

The Cohspibacy Indictment.

All the defendants assign as error the denial of their motions for directed verdicts on the conspiracy indictment which charged a continuing offence between January 31, 1959, and July 31,1959. Before deciding whether their motions should have been granted, certain questions relating to the admissibility of evidence must first be resolved. It is contended that evidence of the episode at the hotel in Boston was incompetent to establish a case against the defendants on the conspiracy indictment. ‘' The date when a conspiracy is alleged to have begun is not, in effect, a wall behind which the court and jury may never look for the purpose of discovering facts that have a bearing upon the fact of the conspiracy itself. The Commonwealth had a right to show the whole history of the conspiracy from its commencement to its consummation.” Commonwealth v. Beal, 314 Mass. 210, 227. Commonwealth v. Stuart, 207 Mass. 563, 569. Commonwealth v. Cheng, 310 Mass. 293, 295. Since a conspirator is held to adopt the acts of his co-conspirators which occurred prior to his entry into the conspiracy (Commonwealth v. Rogers, 181 Mass. 184,193-194), evidence of events at the hotel in Boston were properly admissible against Rymszewicz, who, according to the evidence, joined it at a later date.

Under a conspiracy indictment, the acts and declarations of one conspirator in pursuance of the common object are admissible against the other conspirators. Commonwealth v. Stuart, 207 Mass. 563, 567. Attorney Gen. v. Pelletier, 240 Mass. 264, 313. Commonwealth v. McDermott, 255 Mass. 575, 581. But before the acts and declarations of one are admissible against the others, the judge must make a preliminary finding upon evidence aliunde that a conspiracy exists. Commonwealth v. Waterman, 122 Mass. 43, 59. Commonwealth v. Smith, 163 Mass. 411, 418. Commonwealth v. Rogers, 181 Mass. 184,193. In making this determination, the conspiracy may be, and usually is, proved by circumstantial evidence. Commonwealth v. Smith, 163 Mass. 411, 417-418. Commonwealth v. Benesch, 290 Mass. 125, 131. Every piece of evidence by itself does not have to be sufficient to prove the main point at issue. Attorney Gen. v. Pelletier, 240 Mass. 264, 314. “Evidence which would be colorless if it stood alone may get a new complexion from other facts which are proved, and in turn may corroborate the conclusion which would be drawn from the other facts.” Commonwealth v. Mulrey, 170 Mass. 103, 110. Commonwealth v. Coyne, 228 Mass. 269, 272.

There was sufficient evidence apart from the acts and declarations of Stasiun and Rymszewicz to establish a prima facie case of conspiracy against Manning. From the evidence of the episode at the hotel in Boston, it could be inferred that Manning had conspired with Stasiun to solicit a bribe from Yermette. The same evidence which would warrant the judge finding as a preliminary matter that Manning was a member of the conspiracy would also warrant the jury in so finding. The motion for a directed verdict by Manning was properly denied.

There was also sufficient evidence aliunde to warrant a preliminary finding that Stasiun was a member of the conspiracy. As with Manning, the incident at the hotel justified the inference that Stasiun had agreed with Manning to solicit a bribe from Yermette. Thus, the jury could have found from the conduct of Manning and Stasiun that Stasiun was a member of the conspiracy. Stasiun’s motion for a directed verdict was likewise properly denied.

Similarly, there was a prima facie case against Rym-szewicz who by his own acts and declarations was an agent of Stasiun in soliciting. This coupled with the fact that they had been in contact with each other on numerous occasions was sufficient to take the case against him to the jury.

The defendants have also assigned as error a portion of the judge’s charge. Manning and Stasiun take the position that testimony relating to solicitations made by Rym-szewicz could, in accordance with the judge’s charge, be considered as evidence against them by the jury. Initially the evidence of each defendant’s acts and declarations was admitted with the limitation that such evidence be weighed by the jury only against that particular defendant. After the trial had progressed to a considerable extent, this limitation was removed. The judge in his charge commented on the removal as follows: “ [Ojnce all of the testimony is in, we can then determine whether or not there are certain phases of that testimony which, at the time it was introduced, only seemed to implicate one; but in view of all that we have heard, we now find that it may implicate others, if you find that there are other facts to which they can be related, and talcing them altogether it helps you to draw an inference of implication.”

The acts and declarations to which the trial judge made reference included: Stasiun’s conversation with Vermette on January 19, 1959; Manning’s and Stasiun’s conversation with Vermette at the hotel; Stasiun’s conversation with Vermette in late February; Rymszewicz’s conversation with Vermette in the late spring; and Stasiun’s conduct at a meeting of the Governor’s Council.

The action of the judge in removing the limitations as to this evidence was correct if his preliminary finding was proper. By his own acts and declarations Rymszewicz was sufficiently linked to a conspiracy with Stasiun and Manning. Thus, as to him, there was no error. Manning and Stasiun’s contentions, however, must be sustained. Apart from the conduct and statements of Rymszewicz relating to his solicitations, the only evidence linking him with Manning and Stasiun concern his association with Stasiun. They were first cousins who had known each other all their lives. Rymszewicz was a worker in Stasiun’s 1958 political campaign. During the campaign he had been in the company of Stasiun on several occasions. Rymszewicz attended Stasiun’s 1959 inauguration and the subsequent reception. While serving on a committee in charge of a testimonial dinner for Stasiun, his duties consisted of raising and collecting money. Since Stasiun’s election in 1958, Rymszewicz had visited his office alone several times. Rym-szewicz and his wife, who also worked on the Stasiun campaign, visited Stasiun’s home on two or three occasions when large cookouts were held. Stasiun was instrumental in procuring the appointment of Rymszewicz to the Board of Trustees of the New Bedford Institute of Technology, a nonsalaried position. This appointment was confirmed by the Executive Council. This was not evidence aliunde from which an inference could be drawn that Rymszewicz conspired with Manning and Stasiun to solicit bribes from Vermette. The admission of the acts and declarations of Rymszewicz against Stasiun and Manning, therefore, was error, and it cannot be said to be harmless; it indicated that Rymszewicz had solicited a bribe from Vermette on behalf of Stasiun.

Miscellaneous Mattees.

Manning contends that he was improperly indicted and tried in Bristol County. He relies on the Commonwealth’s failure to present any evidence of overt criminal acts committed by him in that county. Prior to the trial the Attorney General had petitioned the court for leave to proceed against Manning pursuant to G. L. (Ter. Ed.) c. 277, § 57A, alleging that he was in doubt as to whether that part of both indictments which pertains to Manning set forth a crime which was committed within the territorial jurisdiction of the court. Manning filed motions to dismiss under both indictments and a plea in abatement under the solicitation indictment. The motions to dismiss and the plea in abatement were denied. The court allowed the Commonwealth’s motion on the ground that “alleged actions of . . . Manning in Boston were all part of the same alleged scheme for the solicitation of a bribe from Vermette by the defendant Stasiun, the essential locus of which scheme is in Bristol County.” There was no error.

Section 57A provides that a defendant shall not be discharged for lack of jurisdiction where the evidence establishes the situs of the crime without the county, if the Commonwealth has previously petitioned for leave to proceed stating that doubt exists as to whether the crime was committed within the county, and leave is granted by the court after hearing. In Commonwealth v. Mannos, 311 Mass. 94, 102-104, under an indictment for requesting and accepting bribes, the district attorney stated that there was no evidence that one of the defendants had received bribes within the county in which the trial was held, and that the evidence would establish only the receipt of bribes in another county. In upholding the granting of leave to proceed under § 57A, the court found it significant that there was activity in both counties pursuant to one plan. The existence of a single scheme in the case at bar with varying degrees of participation by each of the defendants was sufficient to cast doubt as to whether Manning had committed a crime in Bristol County. The court, thus, was justified in granting leave to proceed.

Even apart from § 57A, venue was properly laid under the conspiracy indictment. It is clear that a conspiracy prosecution may be instituted in any county in which an overt act is committed by any one of the conspirators in execution of the plan. This is true notwithstanding the fact that the defendant might never have been within the county during the continuance of the conspiracy. Commonwealth v. Saul, 260 Mass. 97. Commonwealth v. O’Rourke, 311 Mass. 213, 221. Since there was evidence that Stasiun and Rymszewicz had made solicitations in Bristol County, venue was properly laid there.

Conclusion.

All of the assignments of error have been considered. Those not discussed are either without merit or present questions not likely to arise at a new trial.

The verdicts on the solicitation indictment are set aside and the judgments on this indictment are reversed. The verdicts on the conspiracy indictment must be set aside as to Stasiun and Manning and the judgments as to them are reversed. Since it would be anomalous in these circumstances to affirm Rymszewicz’s conviction we are of opinion that justice requires that the verdict and judgment against him on the conspiracy indictment should also be set aside.

So ordered.

1 Stasiun -was a doctor of optometry and "was often referred to as “Doe.”

2 Section 8 was repealed by St. 1962, c. 779, § 3. The general subject matter is now covered by G. L. c. 268A, §§ 1 et seq., inserted by St. 1962, c. 779, § 1.

3 The decision in the Sail case is in accordance with our rule; it was rejected, however, by a divided court in Pinkerton v. United States, 328 U. S. 640.

4 The Pinkerton decision has been criticized in 56 Yale L. J. 371, and 16 Fordham L. Rev. 275.