5 Mass. App. Ct. 657 | Mass. App. Ct. | 1977
The defendant appeals from his conviction in the Superior Court of unlawfully carrying a firearm in violation of G. L. c. 269, § 10 (a). He was found guilty by a jury and sentenced. The defendant assigns as error the judge’s denial of his motion for a directed verdict. The argument is divided into two parts.
1. The defendant contends that his motion for a directed verdict should have been allowed because G. L. c. 278, § 7, relied on by the Commonwealth at trial, is unconstitutional.
2. The defendant argues that the evidence presented by the Commonwealth was insufficient to warrant the submission of the case to the jury. We agree and reverse.
The standard of review is whether the evidence, read in the light most favorable to the Commonwealth, Commonwealth v. Perry, 3 Mass. App. Ct. 308, 312 (1975), is such that the jury “might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.” Commonwealth v. Vellucci, 284 Mass. 443, 445 (1933).
Viewed in the light most favorable to the Commonwealth, the evidence showed that in response to a radio call six Boston police officers went to an apartment building in Boston’s Back Bay. Officer Daly testified that as he entered the building he observed a group of men arguing in the hallway. Although the men were speaking Greek, Officer Daly heard the defendant say, “It was only shooting blanks.”
The issue before us is the meaning of the word “carry
Judgment reversed.
Verdict set aside.
Judgment for the defendant.
General Laws c. 278, § 7, reads: “A defendant in a criminal prosecution, relying for his justification upon a license, appointment, admission to practice as an attorney at law, or authority, shall prove the same; and, until so proved, the presumption shall be that he is not so authorized.”
All other references to this statement seem to indicate that the defendant said, “I was only shooting blanks.”
Subsection (a) of § 10, as appearing in St. 1975, c. 113, § 2, provides in pertinent part: “Whoever... carries on his person ... a firearm ... without [license] ... shall be punished ....”
We note that none of the subsequent amendments to G. L. c. 269, § 10, as appearing in St. 1957, c. 688, § 23 (the version discussed in Atencio and Morrissey), has resulted in any change in the definition of the substantive offense of carrying a firearm or in the meaning of the word “carrying” as used in the section.