Commonwealth v. Gorman

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

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.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.) 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 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. 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.

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 (Commonwealth v. Conlin, 184 Mass. 195, 68 N. E. 207), is not of itself a breach of the peace (Commonwealth v. O'Connor, 7 Allen, 583). Compare statutory rights of arrest for drunkenness. G. L. (Ter. Ed.) c. 272, § 44; Commonwealth v. Cheney, 141 Mass. 102, 6 N. E. 724,55 Am. Rep. 448; Trebeck v. Croudace, [1918] 1 K. B. 158. On the other hand, an affray or assault is a typical breach of the peace. Commonwealth v. Tobin, 108 Mass. 426, 429,11 Am. Rep. 375;Leddy v. Crossman, 108 Mass. 237. In Ford v. Breen, 173 Mass. 52, 53 N. E. 136, violent, profane and obscene language used in a dwelling to the annoyance of persons outside was deemed a breach of the peace. See, also, Commonwealth v. Foley, 99 Mass. 497;Commonwealth v. Oaks, 113 Mass. 8. This case does not require us to draw the line among conflicting decisions in other jurisdictions for the purpose of classifying offences as involving a breach of the peace, or not. It is worth notice, however, that in United States v. Hart. Fed. Cas. No. 15,316, Pct. C. C. 390, Washington, J., held that driving a carriage at an immoderate rate of speed through a principal street was a breach of the peace, justifying an arrest by a constable without a warrant.

If there is a present criminal offence (Quinn v. Heisel, 40 Mich. 576), the breach of the peace that justifies arrest without a warrant may be a prospective or anticipated one. An officer, who sees a person committing a misdemeanor of such a sort that a breach of the peace is likely to follow unless the offender be restrained, need not delay an arrest until the harm has been done, nor limit his acts of restraint or detention to those which may be necessary merely to prevent the expected breach. Commonwealth v. Hastings, 9 Mctc. 259, 263. We think that the dictum of Bankes, L. J., in Trebeck v. Croudace, [1918] 1 K. B. 158, 166, states the common law. He said: ‘From the very nature of things the arrest of a drunken person in the street may very frequently be justified on the ground of an anticipated breach of the peace, and particularly so when the alleged offender is in charge either of a loaded gun, or of a motor vehicle, both very dangerous instruments from the point of view of the public safety when in the hands of a drunken person.’ The only difference between the case so stated, and the present case, is that the charge against the present defendant was not that he was intoxicated or in a drunken condition, but merely that he was under the influence of intoxicating liquor. Commonwealth v. Lyseth, 250 Mass. 555, 558, 146 N. E. 18;State v. Rodgers, 91 N. J. Law, 212, 215, 102 A. 433. But even that milder degree of alcoholic effect is likely to make an operator of a motor vehicle a public menace, and to induce in him such reckless conduct as may make him criminally responsible for unintended assault and even manslaughter. Banks v. Braman, 188 Mass. 367, 369, 74 N. E. 594;Commonwealth v. Arone, 265 Mass. 128, 163 N. E. 758. In our opinion, the offence involves a breach of the peace, and justifies an officer in arresting without a warrant a person whom he sees in the act of committing it.

Because of its public importance, we have dealt with the lawfulness of the arrest. But there is another answer.

Mr. Justice Holmes said, in Michigan Trust Co. v. Ferry, 228 U. S. 346, 353, 33 S. Ct. 550, 552, 57 L. Ed. 867: ‘Ordinarily jurisdiction over a person is based on the power of the sovereign asserting it to seize that person and imprison him to await the...