Commonwealth v. Arone

Decision Date28 November 1928
Citation163 N.E. 758,265 Mass. 128
PartiesCOMMONWEALTH v. ARONE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Middlesex County.

Lawrence Arone was convicted of manslaughter, and he appeals. Affirmed.

1. Automobiles k354-Admission in manslaughter prosecution of testimony as to dirty windshield two hours after killing of child by truck held not error.

In prosecution for manslaughter for killing of child by truck which defendant was driving, court did not abuse its discretion in admitting testimony of officers that about two hours after accident they examined windshield of truck, and that one sitting in position of driver could not see beyond mudguard because of dust and dirt upon windshield, notwithstanding that there was no express testimony that no change had taken place in the windshield since the accident.

2. Automobiles k355(13)-Evidence held to sustain conviction of manslaughter for killing of child by truck driven by defendant.

Evidence that defendant who was perfectly familiar with locality, while driving motortruck heavily loaded, with nothing in street to attract his attention or interfere with his view, ran over and killed a child which was either seated in or near a little express cart 6 or 7 feet from right-hand curb, defendant neither sounding his horn, changing direction, nor slackening his speed, held to justify finding of willful, wanton, and reckless conduct on defendant's part, sustaining conviction for manslaughter.

3. Automobiles k344-Violation of statutes by driver of truck killing child does not alone constitute willful, wanton, and reckless conduct warranting conviction of manslaughter.

In manslaughter prosecution for killing of child by truck driven by defendant, where court read to jury G. L. c. 90, ss 13, 14, relating to operation of motor vehicles, defendant was entitled to an instruction, in substance, that defendant was not to be found guilty of willful, wanton, and reckless conduct merely because of violating statutes or regulations with regard to operation of motor vehicles.

4. Criminal law k829(3)-Refusal to instruct that violation of statutes by driver of truck killing child would not alone constitute wanton and reckless conduct held not prejudicial error, in view of other instructions.

In manslaughter prosecution for killing of child by truck being driven by defendant, refusal to give instruction that jury was not justified in finding defendant guilty of willful, wanton, or reckless conduct merely because he may have been violating statutes regulating operation of motor vehicles, held not prejudicial error, in view of instruction that jury must find more than negligence or gross negligence, and must find beyond reasonable doubt conduct that was wanton, reckless, and in utter disregard of probable consequences for negligent act as to amount to willful wrong.

5. Criminal law k808-Reading by trial court from statutes and court decisions to assist in clarifying issues for jury was not error.

Trial court, in reading from the statutes and from decisions of the Supreme Judicial Court to assist in clarifying issues for jury, committed no error in law.J. F. Hughes and H. L. Barrett, both of Boston, for appellant.

R. T. Bushnell, Dist. Atty., and F. G. Volpe, Asst. Dist. Atty., both of Boston, for the Commonwealth.

WAIT, J.

The appellant was found guilty of manslaughter arising out of an automobile accident. He makes thirteen assignments of error at the trial: One, in the admission of evidence; one, in the refusal of a motion that a verdict of not guilty be directed; one, in the denial of a request for instructions to the jury; and the remainder in portions of the charge.

[1] The accident took place about noon on December 15, 1927. Evidence was admitted that some time about two o'clock in the afternoon two officers examined the wind shield of the motortruck which the defendant had driven against the child who was killed, and they were permitted to describe its condition and to testify that sitting in the position of the driver and looking to the right they could not see beyond the mudguard because of dust and dirt upon the windshield. There was no express testimony that no change had taken place in the shield since the accident; but the fair inference from the evidence was that there had been no change. Whether or not the conditions were similar so that the jury could properly make use of the testimony in passing upon the action of the driver rested in the discretion of the trial judge, and we see no abuse of this discretion in the admission of the testimony. Baker v. Harrington, 196 Mass. 339, 82 N. E. 33.

[2] The defendant contends that there was no sufficient evidence to sustain a verdict for manslaughter and that a verdict should, therefore, have been directed in his favor. The undisputed testimony showed that the defendant, who was perfectly familiar with the locality, while driving a motortruck which which weighed 11,000 pounds and carried a load weighing 7,855 pounds, at a speed not greater than fifteen miles per hour, along Belmont street in Cambridge, approaching Cushing street, with nothing in the street ahead of him to attract his attention or to interfere with his view except a child, either seated in a little express cart six or seven feet from the right-hand curb and pushing it with his foot, or at the corner of Cushing street moving to or from the cart to place an object on the sidewalk, ran into and over the child and the cart. The defendant testified that he was looking ahead but did not see the child till just as he struck him. He did not sound his horn nor did he change direction or slacken his speed. If he were believed, there was no reason why he should not have seen the child unless he could not see an object ahead and slightly to his right because of the dirty windshield. He testified that he had a fair view ahead of him, through a section of the windshield rendered comparatively clean by a windshield wiper. The day was clear, without rain or snow. Here was abundant evidence to sustain a verdict for negligence; and, if his testimony in regard to looking forward was not believed,...

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  • Com. v. Cass
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 16, 1984
    ...statute of § 24G. See, e.g., Commonwealth v. Bridges, 285 Mass. 572, 189 N.E. 616 (1934) ("intoxicating liquor"); Commonwealth v. Arone, 265 Mass. 128, 163 N.E. 758 (1928) ("wilful, wanton and reckless"); Commonwealth v. Uski, 263 Mass. 22, 160 N.E. 305 (1928) ("operate"); Commonwealth v. C......
  • Commonwealth v. Welansky
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 5, 1944
    ...appended to G.L.(Ter.Ed.) c. 277, § 79. That form could properly be used even in a case of involuntary manslaughter. Commonwealth v. Arone, 265 Mass. 128, 163 N.E. 758. Upon this indictment the Commonwealth furnished specifications substantially like those furnished upon indictment 413. The......
  • Commonwealth v. Welansky
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 5, 1944
    ...appended to G. L. (Ter. Ed.) c. 277, Section 79. That form could properly be used even in a case of involuntary manslaughter. Commonwealth v. Arone, 265 Mass. 128 Upon this indictment the Commonwealth furnished specifications substantially like those furnished upon indictment 413. The motio......
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    • February 16, 1933
    ...of law that the plaintiff's operation of an unregistered motor vehicle was wilful, wanton or reckless conduct. See Commonwealth v. Arone, 265 Mass. 128, 131, 163 N. E. 758;Issaacson v. Boston, Worcester & New York Street Railway Co., 278 Mass. 378, 390, 180 N. E. 118. Statements of the rela......
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