Commonwealth v. Barney

• Decision Date: 09 March 1927
• Citation: 155 N.E. 600,258 Mass. 609
• Parties: COMMONWEALTH v. BARNEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 609

155 N.E. 600

COMMONWEALTH

v.BARNEY.

Supreme Judicial Court of Massachusetts, Middlesex.

March 9, 1927.

Exceptions from Superior Criminal Court, Middlesex County; J. M. Gibbs, Special Judge.

Grover R. Barney was convicted of operating an automobile on a public way while under the influence of intoxicating liquor, and he excepts.Exceptions overruled

The following is defendant's motion for new trial:

‘Now comes the defendant in the above-entitled cause and moves that the verdict of the jury be set aside and a new trial granted and assigns as reasons therefor the following:

‘That the complaint therein contained in addition to the formal charge of the offense the words ‘said offense being a second offense’; that said words were read to the jury when the jury was sworn; that the witness Cassidy upon direct, examination by the assistant district attorney, after the court had ruled out all evidence of any prior conviction, testified that at the station house on the night of the accident he had asked the defendant if he had ever been convicted before of operating a motor vehicle while under the influence of intoxicating liquor, which question left an inference with the jury that he had been so previously convicted, although upon objection by defendant's counsel, the court stopped that line of testimony; that under the said complaint no evidence of previous conviction was admissible, and no such evidence went into the case; that the complaint with the said words contained therein were taken by the jury to the jury room and kept there during the deliberations of the jury; that although instructed by the court to disregard the said words, the jury might, and probably did assume it as a fact that the defendant had been before convicted of driving under the influence of intoxicating liquor and considered that as tending to prove or render it more probable that he had committed the new offense; that said words had the effect at least of proof of bad character which was inadmissible during all stages of the trial; that it is probable that the jury having these words in mind would be satisfied with less evidence than they would require had there been no previous stigma, and it cannot be sure that, without these words in mind, the jury would not have brought in a verdict of ‘not guilty.’

‘That because of the above reasons, the defendant was prejudiced in the minds of the jury so that he could not be given a fair trial.’

1.Criminal law k1202(4)-In prosecution for second offense of driving while intoxicated, absence of evidence showing second offense did not entitle defendant to directed verdict (G. L. c. 90, s 24, as amended by St. 1925, c. 297, s 1).

In prosecution under G. L. c. 90, s 24, as amended by St. 1925, c. 297, s 1, for operating an automobile on a public way ‘while under the influence of intoxicating liquor,’ said offense being a second offense, absence of evidence supporting charge of second offense held not to entitle defendant to a directed verdict, where court instructed jury to disregard that part of complaint.

2.Criminal law k911-Motion for new trial is addressed to sound judicial discretion.

The disposition of a motion for a new trial is in the sound discretion of the trial court.

3.Criminal law k1202(4)-In prosecution for second offense...