Commonwealth v. Clarke

• Decision Date: 25 February 1926
• Citation: 254 Mass. 566,150 N.E. 829
• Parties: COMMONWEALTH v. CLARKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 566

150 N.E. 829

COMMONWEALTH

v.CLARKE.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 25, 1926.

Exceptions from Superior Court, Suffolk County; E. B. Bishop, Judge.

Franklin T. Clarke was convicted of operating a motor vehicle while under the influence of intoxicating liquor, and he excepts. Exceptions overruled.

1. Automobiles k332-To operate vehicle while intoxicated, engine need not be running (G. L. c. 90, s 24, amended by St. 1925, c. 297).

To operate a motor vehicle on a highway while intoxicated, in violation of G. L. c. 90, s 24, amended by St. 1925, c. 297, it is not necessary that the engine be running.

2. Automobiles k332-Manipulation of gears by drunken driver, permitting automobile to move forward by own weight, held ‘operation of motor vehicle’ (G. L. c. 90, s 24, amended by St. 1925, c. 297).

Manipulation of gears of standing automobile by drunken driver, which permitted it to move forward by its own weight and collide with another automobile, held ‘operation of a motor vehicle,’ within G. L. c. 90, s 24, amended by St. 1925, c. 297.

E. J. Harrigan, Asst. Dist. Atty., of Boston, for the commonwealth.

P. H. Kelley, of Boston, for defendant.

CARROLL, J.

The defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor. G. L. c. 90, § 24, as amended by St. 1925, c. 297. The defendant admitted that he was under the influence of liquor, but denied that he operated a motor vehicle in violation of the statute.

Joseph Solomon, a witness for the commonwealth, testified that on June 10, 1925, about 30 minutes after 5 o'clock in the afternoon, he was in an automobile on Huntington avenue, Boston, moving in the direction of Brookline, and by reason of the traffic, came to a stop; that while his vehicle was standing in the traffic line, he felt a slight jar and found that the defendant's automobile had collided with the rear mud guard of his own car. The traffic officer testified that the defendant was seated behind the wheel of his automobile; that his engine was not running; that ‘there is a slight incline at the place where the defendant's car was.’ The defendant testified that he stopped his car in front of 891 Huntington avenue and ‘shut off his engine’; that he drank some whisky and when he returned to his automobile he ‘realized he had taken too much liquor,’ and ‘decided to leave his car just where it was'; that he proceeded to lock the transmission, and ‘in order to do that he had to get into the car and throw the clutch over from the reverse to neutral’; that the car being then at rest on a slight incline, it moved forward about four feet, solely as a result of its own weight and the law of gravitation, until it came into contact with the Solomon car'; and that the engine had not been running since he stopped it about 1 o'clock in the afternoon.

The defendant requested that the jury be instructed:

‘If the jury find that the defendant, while in an intoxicated condition, and while his car was at a stop, did nothing more than lock the brakes for the purpose of preventing the car from being operated thereafter, and while doing that particular act, the car, because it was then standing on a slight incline moved forward solely as a result of its own weight and the laws of gravitation for a few feet more or less and not as a result of the operation of the engine by the defendant, then in such case the defendant's act is not an act within the prohibition of the statute’; and ‘upon all the evidence, the defendant is entitled to an acquittal.’

The presiding judge charged the jury that:

‘If while under the influence of intoxicating liquor the defendant got into his automobile which was standing at the curb on a street with a slight incline, the...