Commonwealth v. Durkin

• Decision Date: 24 November 1926
• Citation: 154 N.E. 185,257 Mass. 426
• Parties: COMMONWEALTH v. DURKIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 426

154 N.E. 185

COMMONWEALTH

v.DURKIN.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 24, 1926.

Exceptions from Superior Criminal Court, Suffolk County; A. F. Hayden, Judge.

Oswald J. Durkin was convicted of operating an automobile while under the influence of intoxicating liquor, and he excepts. Exceptions overruled.

1. Criminal law k338(1)-Relevancy of testimony depends on its rational tendency to prove material issues.

Relevancy of testimony depends on whether it has rational tendency to prove issues made by pleadings or material issues developed in trial.

2. Criminal law k385-Evidence may be competent, if it is incidental to other circumstantial evidence.

Evidence may be competent, if it is in aid of and incidental to other circumstantial evidence, though not of itself evidence of offense charged.

3. Criminal law k338(2)-Whole circumstance of crime may be shown.

Ordinarily, commonwealth may introduce evidence to prove circumstance under which crime charged was committed, and show whole transaction.

4. Automobiles k354-Admitting testimony, on charge of drunken driving, of drunkenness of passenger of automobile, held not error.

In prosecution for driving automobile while intoxicated, admitting testimony that when man sitting on back seat stepped out he staggered, and his breath smelled of liquor, and he was placed on record for drunkenness, held nor error.

5. Criminal law k695(2)-General exception insufficient, if evidence competent on any issue.

General exception to evidence must be overruled, if evidence was competent on any ground.

6. Criminal law k1144(14)-Unreported charge presumed comprehensive and accurate.

Where charge is not reported, it must be presumed to have been comprehensive and accurate.E. J. Harrigan, Asst. Dist. Atty., of Boston, for the commonwealth.

M. M. McChesney, of Boston, for defendant.

SANDERSON, J.

The defendant was convicted of operating an automobile while under the influence of intoxication liquor.

The evidence tended to show that, while operating an automobile on the Revere Parkway near the junction of two streets, in the nighttime, the defendant collided with a slowly moving electric car; that before the collision the automobile was proceeding at a speed of thirty or forty miles an hour; that two men were riding with him, one by the name of Hoffman, on the front seat and the other on the rear seat; that Hoffman was killed as a result of the collision; and that immediately after the accident the defendant was under the influence of intoxicating liquor. Subject to the defendant's exception the trial judge permitted a witness called by the commonwealth to testify that when the man sitting on the back seat of the automobile stepped out of the car he was staggering and his breath smelled strongly of liguor, and that he ‘was placed on the record for drunkenness.’ The medical examiner testified, subject to the defendant's exception, that he performed an autopsy upon the body of Hoffman, and that there was about the body and clothing a well-marked odor of alcohol; that he found in the right-hand, inside vest pocket a pint bottle half filled with a dark, ambercolored fluid smelling of alcohol. The defendant called a witness who testified that immediately after the accident the defendant said that Hoffman had been drinking and was kind of troublesome; that he was one of those fellows they ‘could not do much with,’ and that Hoffman grabbed the wheel and turned the automobile. The defendant testified that he and the two men in the automobile went to a certain yacht club at about 6:45 the night of the accident and left the club about eleven o'clock; that he had taken no intoxicating liquor on that night.

[1][2][3][4][5] The relevancy of testimony depends upon the question whether it has a rational tendency to prove the issues made by the pleadings or other incidental material issues developed in the course of the trial. ‘It is sufficient if it tends to establish the issue, or constitutes a link in the chain of proof.’...