Commonwealth v. Pentz

Citation143 N.E. 322,247 Mass. 500
PartiesCOMMONWEALTH v. PENTZ.
Decision Date28 February 1924
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Middlesex County; J. F. Brown, Judge.

Thomas E. Pentz was found guilty of operating an automobile so that the lives or safety of the public might be endangered, and brings exceptions. Exceptions overruled.A. K. Reading, Dist. Atty., of Boston, and G. W. Pearson, Asst. Dist. Atty., of Lowell, for the Commonwealth.

A. S. Allen, of Boston, for defendant.

RUGG, C. J.

This is an indictment charging that the defendant at a specified time and place upon a way ‘did operate an automobile so that the lives or safety of the public might be endangered.’ It follows the essential words of G. L. c. 90, § 24. The defendant seasonably filed a motion to quash the indictment on the grounds that it did not define any crime with the certainty and precision required by the Constitution either of this Commonwealth or of the United States.

The indictment embodies in substance the words of the statute. Commonly that is sufficient as matter of criminal pleading. Commonwealth v. Dyer, 128 Mass. 70;Commonwealth v. Ellis, 207 Mass. 572, 575, 93 N. E. 823;Commonwealth v. Allison, 227 Mass. 57, 61, 116 N. E. 265;Commonwealth v. Dyer, 243 Mass. 472, 491, 138 N. E. 296.

[2] The argument of the defendant strikes at the validity of the statute itself. His contention is that the statute establishes no standard of conduct sufficiently definite to inform a person charged with its violation of the nature and extent of his offense, and affords no ascertainable test of guilt, and hence is a nullity.

[4] The statute has been assumed to be valid in Commonwealth v. Guillemette, 243 Mass. 346, 137 N. E. 700. A similar one was treated as not open to objection in Commonwealth v. Cassidy, 209 Mass. 24, 95 N. E. 214. Constitutionality of the statutes was not raised or discussed in either of those decisions. The question is considered now without reference to them. It is provided by article 12 of the Declaration of Rights of the Constitution of this Commonwealth that-

‘No subject shall be held to answer for any crimes or offense, until the same is fully and plainly, substantially and formally, described to him. * * * And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.’

The history and immense significance of this article as a safe-guard of liberty and a shield against oppression are set forth by Chief Justice Shaw in Jones v. Robbins, 8 Gray, 329, 337-350.It would be superfluous to restate or summarize what there was said. This article binds not only the grand jury and all others in drafting indictments; it is a mandate confining as well the General Court in framing laws which may become the source of indictments. Fisher v. McGirr, 1 Gray, 1, 42, 43, 61 Am. Dec. 381;Commonwealth v. Anthes, 5 Gray, 185, 228-232, 251;Opinion of Justices, 232 Mass. 601, 123 N. E. 100;Lebowitch, Petitioner, 235 Mass. 357, 126 N. E. 831. The scope and effect of this article as matter of criminal pleading is that the offense must be set out with such particularity of allegation as may be of service in enabling the accused to understand the charge and to prepare his defense. Commonwealth v. Robertson, 162 Mass. 90, 96, 38 N. E. 25;Commonwealth v. Coleman, 184 Mass. 198, 203, 68 N. E. 220;Stockwell v. Silloway, 100 Mass. 287, 295; Frost's Case, 127 Mass. 550, 554;Commonwealth v. Chivaro, 129 Mass. 489, 495;Commonwealth v. Jordan, 207 Mass. 259, 266, 93 N. E. 809;Commonwealth v. Cornell, 213 Mass. 135, 99 N. E. 975.

[5] Statutes which create crimes must be definite in specifying conduct which is conmanded or prohibited. They must afford some comprehensible guide, rule or information as to what must be done or what must be avoided, to the end that the ordinary member of society may know how to comply with its requirements. ‘Laws which create crime ought to be so explicit that all mensubject to their penalties may know what acts it is their duty to avoid.’ United States v. Brewer, 139 U. S. 278, 288, 11 Sup. Ct. 538, 541 (35 L. Ed. 190);Commonwealth v. Badger, 243 Mass. 137, 137 N. E. 261;Commonwealth v. Atlas, 244 Mass. 78, 82, 138 N. E. 243.

In the light of these principles the statute here assailed must be examined. By its terms ‘whoever upon any way operates a motor vehicle * * * so that the lives or safety of the public might be endangered’ is made subject to punishment. The operation of an automobile upon a way is a clearly defined act, susceptible of being easily understood. Its operation so as not to endanger the lives or safety of the public is the description of a fact. While it may not be easy to formulate in words a comprehensive definition of that fact applicable to all cases, it is not difficult to comprehendwith some approach to accuracy the thought conveyed by the description of that fact. Negligence of varying degrees has been made the basis of indictment under numerous statutes. Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8, 86 N. E. 289. Doubtless many indictments have been framed and much money paid as penalties under such statutes. See, for example, Commonwealth v. Boston & Lowell Railroad, 134 Mass. 211;Commonwealth v. Eastern Railroad, 5 Gray, 473;Commonwealth v. Boston & Albany Railroad, 121 Mass. 36. Yet it has not been infrequently said by other courts that negligence and gross negligence are not capable of accurate definition. See Massaletti v. Fitzroy, 228 Mass. 487, 494 to 498, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088, and Altman v. Aronson, 231 Mass. 588, at 591, 121 N. E. 505, 4 A. L. R. 1185. It seems impossible to draw a sound line of distinction between causing injury by negligence or by gross negligence on the one hand, and operating an automobile on a way so as to endanger the lives and safety of the public on the other hand, and say that the one is specific and certain, and the other vague and indefinite. To endanger the lives and safety of the public by the operation of an automobile on a public way is not an intangible and shadowy act. It has specific relation to possible contact with human beings. The objections to the statute are disposed of by what was said in Nash v. United States, 229 U. S. 373, 376, 377, 33 Sup. Ct. 780, 781 (57 L. Ed. 1232):

‘It is said that the crime thus defined by the statute contains in its definition an element of degree as to which estimates may differ, with the result that a man might find himself in prison because his honest judgment did not anticipate that of a jury of less competent men. The kindred proposition that ‘the criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty,’ is cited from the late Mr. Justice Brewer sitting in the Circuit Court. Tozer v. United States, 52 Fed. Rep. 917, 919. * * * The law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death. ‘An act causing death may be murder, manslaughter, or misadventure according to the degree of danger attending it’ by common experience in the circumstances known to the actor. ‘The very meaning of the fiction of implied malice in such cases at common law was, that a man might have to answer with his life for consequences which he neither intended nor foresaw.’ Commonwealth v. Pierce, 138 Massachusetts, 165, 178;Commonwealth v. Chance, 174 Massachusetts, 245, 252. ‘The criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct.’ 1 East P. C. 262. If a man should kill another by driving an automobile furiously into a crowd he might be convicted of murder however little he expected the result. See Reg. v. Desmond, and other illustrations in Stephen, Dig. Crim. Law, art. 223, 1st Ed., p. 146. If he did no more than drive negligently through a street he might get off with manslaughter or less. Reg. v. Swindall, 2 C. & K. 230; Rex v. Burton, 1 Strange, 481. And in the last case he might be held although he himself thought that he was acting as a prudent man should. See The Germanic, 196 U. S. 589, 596.'

The statute does not offend against the requirements of the Constitution of this Commonwealth. This conclusion is in accord with the great weight of authority, though we do not adopt the reasoning on which some of the decisions are supported. Smith v. State, 186 Ind. 252, 115 N. E. 943;State v. Goldstone, 144 Minn. 405, 408, 175 N. W. 892;Schultz v. State, 89 Neb. 34, 37-40, 130 N. W. 972,33 L. R. A. (N. S.) 403, Ann. Cas. 1912C, 495.State v. Schaeffer, 96 Ohio St. 215, 117 N. E. 220, L. R. A. 1918B, 945 Ann. Cas. 1918E, 1137; Mulkern v. State, 176 Wis. 490, 187 N. W. 190;Hood & Wheeler Furniture Co. v. Royal, 200 Ala. 607, 76 South. 965;People v. Beak, 291 Ill. 449, 126 N. E. 201;People v. Dow, 155 Mich. 115, 118 N. W. 745;State v. Rountree, 181 N. C. 535, 106 S. E. 669. See, however, to the contrary, Hayes v. State, 11 Ga. App. 371, 75 S. E. 523, affirmed in Strickland v. Whatley, 142 Ga. 802, 83 S. E. 856;Russell v. State, 88 Tex. Cr. R. 512, 228 S. W. 566.

[6][7] We are of opinion that the statute is not contrary to any guaranty of the Fourteenth Amendment to the federal Constitution. The first ten Amendments to the Constitution of the United States do not limit the powers of the several state governments but operate on the national government alone. Commonwealth v. Wilkins, 243 Mass. 356, 361, 138 N. E. 11. In Miller v. Strahl, 239 U. S. 426, 36 Sup. Ct. 147, 60 L. Ed. 364, a...

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