Commonwealth v. Gorman

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: LUMMUS
• Citation: 192 N.E. 618,288 Mass. 294
• Decision Date: 02 November 1934
• Parties: COMMONWEALTH v. GORMAN.

288 Mass. 294
192 N.E. 618

COMMONWEALTH
v.
GORMAN.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 2, 1934.

Report from Superior Court; Worcester County; Buttrick, Judge.

T. Francis Gorman was convicted of operating a motor vehicle on a way while under the influence of intoxicating liquor. On report by a judge of a district court sitting in the Superior Court under statutory authority.

Verdict to stand.

[288 Mass. 295]

[192 N.E. 619]

G. H. Yagjian and F. W. Cronin, both of Worcester, for defendant.

E. G. Norman, Dist. Atty., of Worcester, for the Commonwealth.

LUMMUS, Justice.

The defendant, having in his possession a license to operate motor vehicles, was arrested without a warrant by a state police officer, who found the defendant in the act of operating a motor vehicle upon a way while under the influence of intoxicating liquor. G. L. (Ter. Ed.) c. 90, § 24, as amended by St. 1932, c. 26. After being committed to the lockup, the defendant gave bail for his appearance before the District Court. The recognizance, we assume, conformed to G. L. (Ter. Ed.) c. 276, § 65. After complaint against the defendant had been made to the District Court, the arresting officer failed to ‘endorse upon the complaint a statement of his doings,’ as required by G. L. (Ter. Ed.) [288 Mass. 296]c. 218, § 34. No warrant was issued, an arrest on which might have validated the continuance of a custody invalid before. Kelly v. v. Griffin, 241 U. S. 6, 36 S. Ct. 487, 60 L. Ed. 861;Stallings v. Splain, 253 U. S. 339, 343, 40 S. Ct. 537, 64 L. Ed. 940.

In the District Court, before pleading to the merits of the complaint, the defendant made a motion to quash the complaint and also filed a ‘plea to the jurisdiction,’ based on the alleged unlawfulness of the arrest and of ‘the procedure in bringing him before the court.’ These were overruled, and the defendant was convicted. On appeal to the Superior Court, he renewed the motion and the plea. These were again overruled, and after trial a verdict of guilty was returned. A fine was imposed (see Commonwealth v. McCan, 277 Mass. 199, 200, 178 N. E. 633, 78 A. L. R. 1208; Commonwealth v. Boston & Maine Transportation Co., 282 Mass. 345, 346, 185 N. E. 40; compare Commonwealth v. Baldi, 250 Mass. 528, 537, 146 N. E. 11), the execution of the sentence was suspended, and the judge reported the questions which the defendant sought to raise by the motion and the plea, namely, whether the arrest was unlawful and whether any illegality in the arrest and in the failure to indorse a return upon the complaint entitled the defendant to be discharged instead of being tried and convicted.

The defendant contended that the right of an officer to arrest without warrant for an offence relating to the operation or control of motor vehicles is limited by G. L. (Ter. Ed.) c. 90, § 21, to the arrest of an operator who does not have in his possession a license to operate motor vehicles; and that only an investigator or examiner appointed by the registrar of motor vehicles may arrest without a warrant, for the offence of operating a motor vehicle while under the influence of intoxicating liquor, one who possesses such a license.

We think, however, that the statute relied on does not by implication, cut down the common law authority of an officer. State police officers have throughout the Commonwealth ‘all the powers of constables, except the service of civil process, and of police officers and watchmen.’ G. L. (Ter. Ed.) c. 22, § 9A. Constables have common [288 Mass. 297]law power as peace officers to make arrests without warrant in cases in which such arrests are permitted by law. Hartley v. Inhabitants of Granville, 216 Mass. 38, 102 N. E. 942,48 L. R. A. (N. S.) 392, Ann. Cas. 1915A, 725;Commonwealth v. Hastings, 9 Metc. 259. In Sharrock v. Hannemer, Cro. Eliz. 375, 376, Beaumond [Beaumont], J., said, ‘A constable and sheriff are conservators of the peace at the common law.’

The offence of operating a motor vehicle while under the influence of intoxicating liquor is classified by our statute as a misdemeanor, G. L. (Ter. Ed.) c. 274, § 1; chapter 90, § 24, as amended by St. 1932, c. 26. For the common law, see Commonwealth v. Carey, 12 Cush. 246, 252;Jones v. Robbins, 8 Gray, 329, 347-350;Kurtz v. Moffitt, 115 U. S. 487, 499, 6 S. Ct. 148, 29 L. Ed. 458. A peace officer, in the absence of statute (Commonwealth v. Wright, 158 Mass. 149, 159, 33 N. E. 82,19 L. R. A. 206, 35 Am. St. Rep. 475;Creeden v. Boston & Maine Railroad, 193 Mass. 280, 79 N. E. 344,9 Ann. Cas. 1121), may arrest without warrant for a misdemeanor which (1) involves a breach of the peace (2) is committed in the presence or view of the officer (Commonwealth v. McLaughlin, 12 Cush. 615;McLennon v. Richardson, 1k Gray, 74, 77 Am. Dec. 353;Commonwealth v. Ruggles, 6 Allen, 588, 590;Carroll v. United States, 267 U. S. 132, 156, 157, 45 S. Ct. 280.69 L. Ed. 543, 39 A. L. R. 790), and (3) is still continuing at the time of the arrest or only interrupted, so that the offence and the arrest form parts of one transaction (Commonwealth v. Hastings, 9 Metc. 259, 263;Leddy v. Crossman, 108 Mass. 237;Scott v. Eldridge, 154 Mass. 25, 27 N. E. 677,12 L. R. A. 379;Eldredge v. Mitchell, 214 Mass. 480, 483, 102 N. E. 69; Price v. Seeley, 10 Cl. & F. 28; R. v. Light, 7 Cox C. C. 389. See, also, Am. Low Inst. Restatement, Torts, §§ 119, 121, 140, 141). In R. v. Tooley, 2 Ld. Ray.

[192 N.E. 620]

1296, 1301; Id., 11 Mod. 242, 250, Lord Holt states the rule as follows; ‘A constable cannot arrest but where he sees an actual breach of the peace; and if the affray be over, * * * he cannot arrest.’ In the same case, reported in Holt 485, 490, sub-nomine. The Case of the Reforming Constables, his statement reads, ‘A constable may arrest a man that breaks the peace in his view, but if it be done out of his view, he cannot.’ In the present case the only point upon which there can be doubt as to the right to arrest without warrant, is whether the offence involves a breach of the peace.

[288 Mass. 298]The breach of the peace that justifies arrest for a misdemeanor without warrant, must be something more than that which used to be alleged in indictments and complaints as a legal incident of every crimina offence. See G. L. (Ter. Ed.) c. 277, § 33. Not every misdemeanor involves a breach of the peace. For example, the possession of short lobster involves none, Commonwealth v. Wright, 158 Mass. 149, 159, 33 N. E. 82,19 L. R. A. 206, 35 Am. St. Rep. 475; Voluntary drunkenness in private, though a crime...