Commonwealth v. Maguire
| Decision Date | 26 April 1943 |
| Citation | 48 N.E.2d 665,313 Mass. 669 |
| Parties | COMMONWEALTH v. EDWARD J. MAGUIRE (and a companion case against the same defendant). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 5, 1943.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, & RONAN, JJ.
Manslaughter, Motor Vehicle, Operation. Practice, Criminal, Verdict, Trial of indictments together.
Upon separate indictments and proper proof, one may be convicted simultaneously both of manslaughter and of negligently operating a motor vehicle so as to endanger the public in violation of G. L. (Ter. Ed.) c.
90, Section 24, as amended, although both offences originated in the same act.
The mere fact that at the trial together of an indictment for manslaughter based on the defendant's operation of a motor vehicle and of an indictment for his negligently operating it so as to endanger the public in violation of G. L. (Ter. Ed.) c. 90, Section 24, as amended, the jury found him guilty on both indictments in disregard of an instruction by the judge that, if they found him guilty of manslaughter, they need not consider the other indictment and should return a verdict of not guilty thereunder, did not require that the verdict of guilty on the indictment for manslaughter be set aside.
TWO INDICTMENTS found and returned on January 16, 1942. The cases were tried together before Baker, J.
H. F. Collins, for the defendant. J. C. Roy, Assistant District Attorney, for the Commonwealth.
The defendant has been tried and convicted upon two indictments charging him with manslaughter. There was evidence that the defendant while operating an automobile upon River Street in Haverhill, a four-lane heavily travelled highway leading from Haverhill to Lawrence, at about seven o'clock on a pleasant Sunday evening in September, 1941, struck two persons who were repairing a tire upon their automobile and fatally injured them. There was testimony tending to show that the defendant was driving at about fifty miles an hour and that he was under the influence of intoxicating liquor. He was found guilty upon each of these two indictments and was given concurrent sentences in the house of correction. The defendant makes no contention that the evidence was insufficient to justify these verdicts. These two indictments were tried with a third indictment accusing the defendant, at the time and place mentioned in the manslaughter indictments with operating a motor vehicle negligently, "upon a way or in a place to which the public has a right of access," so that the lives or safety of the public might be endangered. Full and adequate instructions were given to the jury as to what must be proved in order to show commission of the offences described in the three indictments. The judge, at the request of the defendant, instructed the jury that manslaughter was a more serious offence than operating an automobile so as to endanger the public; that the latter was included in the former; that if they found that the defendant was guilty of manslaughter, then they need not consider the indictment for operating so as to endanger the public and should return a verdict of not guilty on that indictment; but that if they found that the defendant was not guilty of manslaughter, then they should proceed to determine whether or not he was guilty upon the third indictment. The jury found the defendant guilty upon this third indictment and that indictment was filed.
The defendant appealed under G. L. (Ter. Ed.) c. 278, Sections 33A-33G, and the two assignments of error present the question whether the verdicts in the manslaughter cases were vitiated by any error of law on account of the jury also finding the defendant guilty of operating an automobile so as to endanger in disregard of the instructions of the judge. The proceedings in reference to the trial of the indictment for the illegal operation of the automobile and the disposition of that case in the Superior Court have not been brought here, and we are not now concerned with that indictment other than to decide whether the verdict of guilty has in some way tainted the verdicts returned on the manslaughter indictments.
The defendant contends that he could not be found guilty upon all three indictments either as matter of law or in accordance with the instructions given to the jury. To sustain the first proposition he relies upon Commonwealth v. Peach, 239 Mass. 575 . That decision does not decide that one who has operated an automobile in a wanton and reckless manner and thereby fatally injured another cannot be convicted of manslaughter and also of negligently operating an automobile so as to endanger the public, in violation of the provision now appearing in G. L. (Ter. Ed.) c. 90, Section 24, as amended. It is true that in that case, as in the instant case, the jury were instructed that if they found the defendant guilty of manslaughter they should then find him not guilty of operating a motor vehicle so as to endanger the public. In that case those instructions were followed and the defendant was convicted of manslaughter and acquitted of the other offence, and his contention was that the verdicts were inconsistent. The question of the correctness of the instructions was, however, not raised nor considered by this court. It was there pointed out (page 581) that "It is unnecessary to decide whether the verdicts would have been inconsistent if rendered apart from the instructions given." The defendant in Commonwealth v. Guillemette, 243 Mass. 346, was convicted of manslaughter and of a violation of G.L.c. 90, Section 24. Commonwealth v. Peach, supra, was cited in that opinion in support of the point that the negligence of the victim was not a defence. It seems hardly possible that, if it was thought that there was anything in the Peach case that would preclude a defendant from being convicted of both offences, this court would have refrained from saying so, especially where it is clear that the court had the Peach case in mind. The crimes of manslaughter and operating an automobile in violation of G. L. (Ter. Ed.) c. 90, Section 24, as amended, are separate and distinct offences even though both crimes originate in the same act. The commission of a single act by a defendant might constitute different offences. Commonwealth v. McCabe, 163 Mass. 400 . Commonwealth v. Lewandowski, 251 Mass. 550 . Commonwealth v. Martin, 304 Mass. 320 . It was settled by Commonwealth v. Jones, 288 Mass. 150 , that an acquittal upon a complaint for violation of G. L. (Ter. Ed.) c. 90, Section 24, as amended, would not bar the prosecution of an indictment for manslaughter arising out of the same act. We think the same result would follow if the trial for manslaughter should precede the trial for the statutory misdemeanor. One could not be convicted of driving so as to endanger the public in violation of G. L. (Ter. Ed.) c. 90, Section 24, upon the trial of an indictment which charged him only with the crime of manslaughter. Proof that the operation of an automobile by a defendant in a wanton and reckless manner caused the...
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