Commonwealth v. Sherman

• Decision Date: 14 May 1906
• Citation: 78 N.E. 98,191 Mass. 439
• Parties: COMMONWEALTH v. SHERMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

191 Mass. 439

78 N.E. 98

COMMONWEALTH v. SHERMAN.

Supreme Judicial Court of Massachusetts, Worcester.

May 14, 1906

COUNSEL

Geo S. Taft, Dist. Atty., and Walter P. Hall, Asst. Dist. Atty for the Commonwealth.

Chas C. Johnson, for defendant.

OPINION

LORING J.

In the opinion of a majority of the court these exceptions must be overruled. The fact that the automobile was registered with the Massachusetts highway commission by the defendant, and in his own name, warranted a finding that he was the general owner of it or that he had a special property therein which gave him control thereof. Section 1, St. 1903, p. 507, c 473, amended by St. 1905, p. 228, c. 311, § 2, requires that automobiles shall be registered by the owner or person in control thereof.

If the defendant is guilty here he is guilty not as owner but because the evidence warranted the jury in finding as a fact that he participated in the machine's being run at an illegal speed.

The offense with which he stands charged is a misdemeanor and not a felony. Not being punishable by imprisonment in the State prison (St. 1905, p. 231, c. 311, § 5, amending St. 1903, p. 510, c. 473, § 9), it is a misdemeanor. Rev. Laws, c. 215, § 1.

If it be material here, it is settled that in misdemeanors there are no degrees, but that all who participate in the commission of the offense are principals, and may be charged as such. Com. v. Macomber, 3 Mass. 254; Com. v. Frost, 5 Mass. 53; Com. v. Drew, 3 Cush, 279; Com. v. Wallace, 108 Mass. 12.

The question therefore comes down to this: Did the commonwealth make out a prima facie case of participation by the defendant in the machine in question being run at an illegal speed, by showing that the machine was being run by the operator at an illegal speed while the defendant was in the tonneau? (who was either the general owner of the machine or had such a special property in it as gave him the right to control it). In our opinion those facts warranted the inference that the owner knew and allowed his machine to be illegally run. The case so made out is a prima facie case only. It may be contradicted or explained. But uncontradicted and unexplained it does, in our opinion, warrant that inference and so makes out a prima facie case.

The agreed fact that the by-laws were 'duly established' admits that the by-laws were advertised and posted in compliance with St. 1905, p. 289, c. 366, § 1, and that...