Commonwealth v. Ober

• Decision Date: 27 March 1934
• Citation: 189 N.E. 601,286 Mass. 25
• Parties: COMMONWEALTH v. OBER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 25

189 N.E. 601

COMMONWEALTH

v.OBER.

Supreme Judicial Court of Massachusetts, Suffolk.

March 27, 1934.

Report from Superior Criminal Court, Suffolk County; Cox, Judge.

Augusta Ober was found guilty in the Superior Court, on appeal from the Municipal Court, of violations of traffic regulations of the City of Boston. On report from the Superior Court.

Decision in accordance with opinion.

W. M. Gaddis, Asst. Dist. Atty., of Boston, for the commonwealth.

M. L. Glazer, of Boston, for defendant.

R. W. Hale and J. L. Ware, both of Boston, amici curiae.

PIERCE, Justice.

These complaints in the superior court, numbered 6600 and 6601, were originally tried in the municipal court of the city of Boston. The defendant was convicted on all courts and fines were imposed. The cases were appealed to the superior court, where they were tried together, the defendant having seasonably waived her right to a jury trial. That court found the defendant guilty on each count of each complaint, and she was sentenced to pay a fine of $5 on each count. Further proceedings were stayed, and the judge being of the opinion that the question of law is so important or doubtful as to require the decision of the Supreme Judicial Court, reported the cases with the consent of the defendant, in order to present the questions of law arising therein. If, as matter of law, the judge should have ‘found the defendant not guilty on any or all of the counts, then such finding or findings of guilty as should not have been made are to be set aside and appropriate findings of not guilty ordered. If, as matter of law, any of the requests for rulings which were refused should have been given and the refusal to give them requires that the finding or findings of guilty as to any or all of the counts be set aside, then such finding or findings are to be set aside and such finding, findings or order are to be ordered as are required. Otherwise, the findings of guilty are to stand.’

The reported facts are in substance as follows: Under the authority of St. 1929, c. 263, and in conformity thereto, the Boston Traffic Commission adopted the rules and regulations which were in force at the time of each of the alleged violations of them. These rules and regulations so far as material were: ‘Section 31. (5) No person shall allow, permit or suffer any vehicle registered in his name to stand, or park in any street, way, highway, road or parkway under the control of the city in violation of any of the rules and regulations of the Traffic Commission of the City of Boston’; ‘Section 19. Except as otherwise provided, no operator shall park any vehicle between the hours of 7 o'clock. A. M. and 6 o'clock P. M. of any day, except Sundays and legal holidays on any street for a period of time longer than one hour’; and ‘Section 17. (4) No operator shall stop, stand or park any vehicle with passenger registration for more than five minutes continuously, nor any vehicle with commercial registration for more than twenty minutes continuously in any of the following places: * * * Between the hours of 1 p. m. and 1 a. m. * * * State Street: North side, from McKinley square to Congress street.’

Excepting references to times and places, counts 1, 2, 3, 4 and 5 of the complaint numbered 6600, as amended in the superior court, are alike. Count 1 and the other counts of the complaint number 6600, with the exceptions noted, read as follows: ‘To the Justices of the Municipal Court of the City of Boston, holden at said City of Boston for the transaction of criminal business, within the County of Suffolk, Richard S. McKee of the City of Boston, in the County of Suffolk, in behalf of the Commonwealth of Massachusetts, on oath complains that at the time of the commission of the crime hereinafter set forth one, a certain vehicle, to wit, an automobile was then and there duly registered in the name of Augusta Ober according to law, and that the said Ober of said City of Boston, on a day other than Sunday or Legal holiday, to wit, on the sixteenth day of February in the year of our Lord one thousand nine hundred and thirty-three, at the City of Boston aforesaid, and within the judicial district of said Court, did then and there allow, permit or suffer said vehicle to stand or park in a certain street, to wit: Brattle Square Street under the control of said City in violation of a rule and regulation of the Traffic Commission of said City, to wit: did then and there allow, permit or suffer an operator to park said vehicle between the hours of seven o'clock A. M. and six o'clock P. M. of said day on said street for a period of time longer than one hour, against the peace of said Commonwealth, the form of the statute of said Commonwealth, and the rule and regulation of the Boston Traffic Commission of said city in such case made and provided.’

The complaint numbered 6601, as amended in the superior court, reads as follows: said ‘Richard S. McKee * * * on oath complains that at the time of the commission of the crime hereinafter set forth, a certain vehicle with a passenger registration, to wit, an automobile was then and there duly registered according to law in the name of Augusta Ober, and that the said Ober of said City of Boston, on the thirty-first day of March in the year of our Lord one thousand nine hundred and thirty-three, at the City of Boston aforesaid, and within the judicial district of said Court, did then and there allow, permit or suffer said vehicle to stand or park in a certain street, to wit, State Street and in that part of said State Street, North Side, between McKinley Square and Congress Street, said street and part thereof being under the control of said City, in violation of a rule and regulation of the Traffic Commission of said City, to wit: did then and there allow, permit or suffer an operator to stop, stand or park said vehicle for more than five minutes continuously between the hours of one o'clock P. M. and one o'clock A. M. of said day on said street and the place aforesaid, against the peace of said Commonwealth, the form of the statute of said Commonwealth, and the rule and regulation of the Boston Traffic Commission of said city in such case made and provided.’

No question is raised by the defendant ‘as to the form or sufficiency of the complaints.’ All the places described as streets or ways in the several complaints were under the control of the city of Boston. ‘On the several days and times and at the several places named in the complaints a motor vehicle with passenger registration (that is, as defined by said rules and regulations of said Traffic Commission, a registered vehicle other than a vehicle registered for commercial purposes and used in the transportation of goods, wares and merchandise) and registered in the name of the defendant was parked as alleged in the several counts of the complaint. On each occasion that the defendant's automobile was so parked, a police officer attached a tag to it. Each tag had written on it the registration number of the defendant's automobile, the date, time and place when and where the car was parked and tagged and also a printed statement that the automobile had been tagged for a violation of traffic regulations, that is, parking in a restricted space and requesting the defendant to bring the tag to the police station within forth-eight hours. On each said occasion a notice of the tagging was sent by the Traffic Bureau of the Police...