Com. v. Jones

• Decision Date: 15 April 1977
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1308

361 N.E.2d 1308

372 Mass. 403

COMMONWEALTH v. Irving JONES.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 8, 1977.

Decided April 15, 1977.

Robert S. Potters, Boston, for defendant.

Joseph E. Coffey, Asst. Dist. Atty. (Timothy M. Burke, Newton, with him), for the Commonwealth.

Before QUIRICO, BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

BRAUCHER, Justice.

Pursuant to G.L. c. 278, §§ 33A--33G, the defendant appeals from a conviction for carrying a firearm in violation of G.L. c. 269, § 10(a). There was no evidence to show that the defendant did not have a license to carry a firearm, and the defendant argues that there was error in the denial of his motion for a directed verdict and in the instructions to the jury on the subject of licensing. We hold that G.L. c. 278, § 7, ¹ establishing a presumption that the defendant, until he proves a license, is not so authorized, is constitutional. We further hold that the instructions, taken as a whole, fairly presented the case to the jury. We therefore affirm the conviction.

There was evidence that on May 17, 1975, the defendant had a loaded handgun in his hands while sitting in his car, but no evidence on the subject of a license. The judge denied the defendant's motion for a directed verdict, and charged the jury substantially in accordance with G.L. c. 278, § 7. ² On conviction the defendant was sentenced to the mandatory minimum sentence of one year in a house of correction, and he appealed and was admitted to bail pending appeal. We brought the case here on our own motion.

The conviction could be affirmed on the authority of Commonwealth v. Davis, 359 Mass. 758, 270 N.E.2d 925 (1971), and cases cited. But the defendant contends that the decisions in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), require ree xamination of the Davis case. Similar arguments have been successful in other courts. Johnson v. Wright, 509 F.2d 828, 830 (5th Cir.), cert. denied, 423 U.S. 1014, 96 S.Ct. 445, 46 L.Ed.2d 384 (1975). State v. Beauton, 170 Conn. 234, 240, 365 A.2d 1105 (1976). Head v. State, 235 Ga. 677, 679, 221 S.E.2d 435 (1975). Commonwealth v. McNeil, 461 Pa. 709, 714--716, 337 A.2d 840, 843--844 (1975). We therefore undertake the suggested ree xamination.

1. Interpretation of our statute. Our story begins with Commonwealth v. Thurlow, 24 Pick. 374, 381 (1837), where a conviction for selling liquor without a license was reversed because no evidence was produced that the defendant was not licensed. That case was followed in Commonwealth v. Kimball, 7 Metc. 304, 306 (1843), but the proof there was held sufficient. A presumption that a defendant had not been licensed was established by St.1844, c. 102, for prosecutions for selling spirituous or fermented liquors; by St.1859, c. 160, such a presumption was extended to all criminal prosecutions. In Commonwealth v. Boyer, 7 Allen 306, 308 (1863), the court explained that in the Thurlow case, because of the way in which licenses were granted and recorded, 'it was as easy for the Commonwealth to show the negative, as for the defendant to show the affirmative.'

Subsequent cases have applied the statute and its successors both to cases involving intoxicants and to other offenses. Commonwealth v. McCarty, 141 Mass. 420, 422, 6 N.E. 102 (1886) (suffering a billiard table to be kept). Commonwealth v. Brunelle, 361 Mass. 6, 9, 277 N.E.2d 826 (1972) (license to practice medicine). COMMONWEALTH V. LAWRENCE READY-MIX CONCRETE CORP., --- MASS.APP. ---, 345 N.E.2D 919 (1976)^A (permit to operate vehicle of certain weight). 'As matter of statutory construction, the prohibition is general, the license is exceptional.' Commonwealth v. Nickerson, 236 Mass. 281, 305, 128 N.E. 273, 283 (1920). In Commonwealth v. Davis, 359 Mass. 758, 270 N.E.2d 925 (1971), involving conviction for carrying a gun in an automobile, we said, 'General Laws c. 269, § 10, proscribes certain inherently dangerous acts, and G.L. c. 278, § 7, allows the defendant to show that his conduct is within an exception to the proscription.'

General Laws c. 269, § 10(a), was rewritten by St.1975, c. 113, § 2, effective April 11, 1975. See Commonwealth v. Jackson, --- Mass. ---, ---, ^b 344 N.E.2d 166 (1976). The amendments do not affect the present question. The statute as rewritten provides for the punishment of a person who, 'except as provided by law, carries on his person . . . a firearm . . .' without having in effect a license issued under G.L. c. 140, § 131 or 131F, or complying with G.L. c. 140, §§ 129C and 131G, or with G.L. c. 269, § 12B. The cross references bring into play not only exceptions for holders of licenses but also the 'exempted persons and uses' in G.L. c. 140, § 129C(a) through (s), some of which do not involve a license. See Commonwealth v. Jackson, supra at --- n.3, ^c 344 N.E.2d 166.

We sum up the established interpretation of G.L. c. 278, § 7, as it applies to prosecutions under G.L. c. 269, § 10(a). The holding of a valid license brings the defendant within an exception to the general prohibition against carrying a firearm, and is an affirmative defense. Cf. Mass. Proposed R.Crim.P. for Dist. & Super.Cts. 11(a)(1)(C), 11(b)(1)(C), 14(b)(3) (July 30, 1976). Absence of a license is not 'an element of the crime,' as that phrase is commonly used. In the absence of evidence with respect to a license, no issue is presented with respect to licensing. In other words, the burden is on the defendant to come forward with evidence of the defense. If such evidence is presented, however, the burden is on the prosecution to persuade the trier of facts beyond a reasonable doubt that the defense does not exist. Cf. Commonwealth v. Kostka, --- Mass. ---, --- - ---, ^d 350 N.E.2d 444 (1976) (defense of insanity); Commonwealth v. Rodriguez, --- Mass. ---, --- - ---, ^e 352 N.E.2d 203 (1976) (self-defense).

This interpretation, at least so far as it places on the defendant the burden of coming forward with evidence, is in accord with the great weight of authority. Seattle v. Parker, 2 Wash.App. 331, 337, 467 P.2d 858 (1970). See Annots., 153 A.L.R. 1218, 1258--1261 (1944), 69 A.L.R.3d 1054 (1976); Model Penal Code § 1.12(2), (3) (Proposed Official Draft, 1962), and § 1.13, Comment (Tent. Draft No. 4, 1955). Cf. Rossi v. United States, 289 U.S. 89, 91--92, 53 S.Ct. 532, 77 L.Ed. 1051 (1933) (registration of still). The principal contrary decision, other than the recent constitutional decisions cited above, is Brown v. United States, 66 A.2d 491, 494 (D.C.Mun.Ct.App.1949), where the court said, 'Here, in a relatively small geographical area, only one licensing authority exists, who issues only a small number of licenses each year.' Hence, 'the circumstances in the District of Columbia do not justify the rule followed in most states.' Contrast Williams v. United States, 237 A.2d 539, 541 (D.C.Ct.App.1968) (burden on defendant to bring himself within statutory exceptions).

As applied to the facts of the present case, the statute treats absence of a license just as it treats, for example, exemption under G.L. c. 140, § 129C (s), for possession by a local historical society open to the public, provided the firearm is unloaded, properly housed and secured from unauthorized handling. If there was no evidence with respect to the defendant's connection with such a society, there was no issue for the jury as to the application of the exemption. Similarly, if there was no evidence as to a license, there was no issue for the jury as to licensing.

2. Constitutionality. We turn to the constitutional question. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970), tells us that 'the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' But in Mullaney v. Wilbur, 421 U.S. 684, 701 n.28, 95 S.Ct. 1881, 1891, 44 L.Ed.2d 508 (1975), where absence of passion in a murder case was held to be a fact subject to that rule, the Court said, 'Many States do require the defendant to show that there is 'some evidence' indicating that he acted in the heat of passion before requiring the prosecution to negate this element by proving the absence of passion beyond a reasonable doubt. (Citations omitted.) Nothing in this opinion is intended to affect that requirement.' (Citations omitted.) Further, with respect to presumptions and inferences, the Court said at 702 n. 31, 95 S.Ct. at 1892: 'These procedural devices require (in the case of a presumption) or permit (in the case of an inference) the trier of fact to conclude that the prosecution has met its burden of proof with respect to the presumed or inferred fact by having satisfactorily established other facts. Thus, in effect they require the defendant to present some evidence contesting the otherwise presumed or inferred fact. Since they shift the production burden to the defendant, these devices must satisfy certain due process requirements.' (Citations omitted.)

A classic statement of the 'limits of reason and fairness' in casting the production burden on the defendant in a criminal case is found in Morrison v. California, 291 U.S. 82, 88--89, 54 S.Ct. 281, 284, 78 L.Ed. 664 (1934): 'The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been rpoved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression.' Such a shift may be proper if there is a 'manifest disparity in convenience of proof and opportunity for knowledge as, for instance, where a general prohibition is applicable to every one who is unable...