This сase is before us on a substitute consolidated bill of exceptions of the defendants, who have been found guilty on an indictment which charges that “on the ninth day of August in the year of our Lord one thousand nine hundred and forty-nine, [they] did unlawfully possess a machine gun as defined in § 121 of c. 140 of the Tercentenary Edition of the General Laws of the said Commonwealth, without permission under § 131 of the said c. 140.”
It is their contention that in the absence of the firing pin, without which the gun could not be fired, the gun was not a machine gun within the meaning оf G. L. (Ter. Ed.) c. 140, § 121, as amended, which provides that “Any gun of small arm calibre designed for rapid fire and operated by a mechanism, or any gun which operates automatically after the first shot has been fired, either by gas action or recoil action, shall be deemed to be a machinе gun for the purposes of . . . sections [one hundred and twenty-two to one hundred and twenty-nine, inclusive], and of sections one hundred and thirty-one and one hundred and thirty-one B.” The offence of having in possession a machine gun is set forth in G. L. (Ter. Ed.) c. 269, § 10, as most recently amended by St. 1937, c. 250, § 1, wherein it is also made an offence for a person to carry “on his person or under his control in a vehicle, a pistol or revolver, loaded or unloadеd, without permission under section one hundred and thirty-one of chapter one hundred and forty.” The intent .of § 10, which also penalizes the carrying of dirk knives, metallic knuckles and certain other dangerous weapons, is to protect the public from the potential danger incident to the unlаwful possession of such weapons. It is to be noted that it is no less a crime to carry without a license a revolver or pistol which is unloaded than to carry one which is loaded.
Redus
v.
State,
The defendants further excepted to the submission to the jury by the judge of the following four questions relating to the gun which had been marked exhibit 1: “1. Do the jury find that the defendant Bartholomew was in possession of the weapon mаrked Exhibit #1? 2. Do the jury find that the defendant Hughes was in possession of the weapon marked Exhibit #1? 3. Do the jury find that the weapon marked Exhibit #1 when in the possession of the defendants, or either of them, was capable of firing a shot or bullet? 4. Do the jury find that the weapon marked Exhibit #1, was a machine gun as defined in G. L. (Tеr. Ed.) c. 140, § 121?” Having been instructed “that if they answered the first two questions in the negative, there would be no further instructions necessary, but that if either of the first two questions were answered in the affirmative, then they should answer the third and fourth questions after which further instructions as to their duties, if necessary would be given them,” the jury answered questions 1, 2, and 4 in the affirmative and question 3 in the negative. The record states that “The jury thereupon returned verdicts of guilty against each defendant.”
No part of the judge’s charge is reported. Whether a judge in the trial of a criminal case may submit specific questions of fact tо be answered by a jury, so far as we are aware, has never been decided in this Commonwealth. Such a practice in civil cases is of long standing and does not de
It is not necessary to determine hеre whether the judge could properly adopt this established civil practice and submit specific questions over the objections of thе defendants because, if he was in error, such error was cured by the subsequent return of general verdicts. The answers were not inconsistent with and were superseded by the verdicts. If the answers be considered as incorporated in the verdicts and thereby a part of them, the validity of the verdiсts is not affected. “A verdict may ... be good as a general verdict, though some fact is specially found, by way of exception or qualificаtion.”
Dyer
v.
Commonwealth,
A like conclusion is reached if, as contended by the defendants, the answers of the jury to the special questions be considered as a special verdict. “In the ordinary case of a general verdict of guilty, the jury, by the very terms of their verdict, find the prisoner guilty of all the material аllegations in the indictment. Not so in a special verdict, for the very object of this departure from the usual form is presumed to be for the purpose of declaring the prisoner guilty of certain facts only, with a view of submitting the question, whether those facts authorize a general verdict оf guilty, to the judgment of the court. In such a case, if the facts thus found do not include all the essential elements of the offence charged upon the prisoner, he cannot be convicted.”
Com
An additional objection to the submission of the fourth question to the jury is on the ground that whether the gun was a machine gun as defined in G. L. (Ter. Ed.) c. 140, § 121, as amended, was a question of law for the judge to decide and not a question of fact for the ju,ry. We perceive no merit in this contentiоn. The question was one of fact to be answered under appropriate instructions.
Commonwealth
v.
Squire,
Exceptions overruled.