Commonwealth v. Sostilio

• Decision Date: 29 December 1949
• Citation: 89 N.E.2d 510,325 Mass. 143
• Parties: COMMONWEALTH v. SOSTILIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 143

89 N.E.2d 510

COMMONWEALTH v. SOSTILIO.

Supreme Judicial Court of Massachusetts, Worcester.

December 29, 1949

Argued Sept. 26 1949.

A. B. Cenedella Dist. Atty., Milford (A. A. Gelinas, Asst. Dist. Atty Fitchburg, with him) for the Commonwealth.

J. S. Derham Northampton (W. T. Buckley and F. X. Reilly, Jr., Worcester, with him) for defendant.

Before QUA, C. J., and LUMMUS, SPALDING, and COUNIHAN, JJ.

LUMMUS, Justice.

The indictment against the defendant was in three counts. The first charged that the defendant, on June 25, 1948, 'did assault and beat Stephen D. Bishop, and by such assault and beating did kill Stephen D. Bishop.' The second charged that the defendant on that day 'did drive a motor vehicle on a race track in a wanton and reckless manner, and did thereby assault and beat Stephen D. Bishop, and by such assault and beating did kill said Stephen D. Bishop.' The third charged that the defendant. on that day 'did in a wanton and reckless manner operate a motor vehicle in a race with other motor vehicles, and as a result of said wanton reckless operation caused mortal injuries to one Stephen D. Bishop, said injury resulting in his death.' The jury returned a verdict of guilty on all three counts.

The only assignment of errors is that the evidence did not warrant a conviction upon the indictment, and consequently that there was error in denying the defendant's motion for a directed verdict in his favor.

The injuries that caused the death of Bishop were received during a race of 'midget' automobiles at the Mohawk Stadium in Lunenburg, a race course licensed by the selectmen under G.L (Ter.Ed.) c. 140, § 181. The race course was elliptical in shape. Its inside circumference was nine hundred thirty-four feet, consisting of two straight courses of two hundred feet each, and two curved ends measuring two hundred sixty-seven feet each. The surface of the track on which the automobiles raced was forty feet wide, but widened to fifty feet at the curved ends. The surface of the track was of black asphalt. There were banking two feet high on the straight sides of the track, which rose higher on the curved ends. On each of the curved ends there was an apron of gray concrete two feet wide on the inside of the track, which apron was on about the same level as the track but was corrugated and rough. The wheelbase of the 'midget' racing automobiles was about seventy inches, and their width was about four feet. The evening of the accident was fair, and the track well lighted. There were six drivers in the race. The automobiles were moving at the start of the race. A driver named Niemi started on the inside of the track, in the front row, and opposite him on the outside was Bishop. Behind them were Provencher and Woods, in the next row. Behind them were Bernardi and the defendant, who were put in the rear row because they were the most experienced drivers and had the fastest automobiles.

There was evidence warranting the following findings. When the automobiles had travelled somewhat more than half a lap, the left wheels of Niemi's automobile were only two feet from the inside of the track. The defendant tried to drive his automobile to the left of Niemi's, although there was not sufficient space for him to pass Niemi on the left. The...