275 Mass. 546 | Mass. | 1931
The defendant was found guilty upon a complaint charging him with a violation of G. L. c. 90, § 10, as amended "by St. 1923, c. 464, § 4, St. 1929, c. 262,
There was testimony that on the evening of June 16, 1930, the defendant came to Charlestown in his automobile and went to a house where he drank intoxicating liquor. About midnight a police officer doing traffic duty stopped the defendant’s automobile, which was being operated on a public way by Nelson and in which the defendant was riding. Both Nelson and the defendant were drunk and were placed under arrest. At the police station the officer asked for the registration of the automobile and for the license of the operator. Nelson showed a license issued to him which had expired sometime previously. The defendant produced his license to operate motor vehicles, and a certificate of registration of the automobile Nelson had been operating, both of which were in effect. The police officer testified that Nelson said he was operating under the defendant’s license. The defendant denied this and said that Nelson was operating under his own license. The defendant introduced in evidence records of the conviction of Nelson upon charges of operating a motor vehicle without a license and under the influence of intoxicating liquor. These charges were based upon the conduct of Nelson at the time and place set forth in the complaint on which the defendant was tried.
The defendant testified that on the night of June 16, 1930, he had been drinking in a house in Charlestown; that he intended to walk to a garage to request someone to drive his automobile into the garage for him; that he left the house with a woman who remarked that she would like to take a ride, but the defendant stated he would not drive the automobile because he had been drinking; that, as he made this statement, Nelson, who was known to the defendant, came along, overheard the conversation and
Upon the foregoing evidence the jury were warranted in finding the defendant guilty under G. L. c. 90, § 10, as amended. It could have been found that Nelson was operating the automobile without a license, and it could be further found as a reasonable inference from all the evidence that this fact was known to the defendant, and that he was riding with and accompanying Nelson within the meaning of G. L. c. 90, § 10, and thus became liable for any violation by Nelson of the provisions of that statute. Bourne v. Whitman, 209 Mass. 155, 165-166. Compare Commonwealth v. Sherman, 191 Mass. 439. The credibility of the witnesses was for the jury. They were not bound to believe the testimony of the defendant. Commonwealth v. Feci, 235 Mass. 562, 571. Commonwealth v. McCarthy, 272 Mass. 107, 111.
No one of the defendant’s requests properly could have been given. Conviction of Nelson of the offence of operating a motor vehicle without a license on the occasion above referred to took place at a separate trial. There is nothing in the record as to what defence, if any, he offered at that time. The conviction of the defendant in the present case is not affected by the previous conviction of Nelson of a
The second request was as follows: “If an unlicensed operator of a motor vehicle is found guilty of operating a motor vehicle while under the influence of intoxicating liquor, then the' licensed operator who accompanied him must- be found not guilty of operating a motor vehicle while under the influence of intoxicating liquor.” This request was rightly refused. The defendant was convicted of a different offence from that with which Nelson was charged. G. L. c. 90, § 10.
• In his charge to the jury the judge said: “If yon find that the defendant was told by Nelson that he, Nelson, had a license to operate an automobile and Nelson drew from his pocket a book in which there was something Nelson said was a license, a burden devolved upon the defendant to ascertain if such license was an operative license, that is, a license given by the registrar of motor vehicles to Nelson to operate motor vehicles and then in effect. If the defendant paid no further attention or made no effort to ascertain if said purported license was an operative license, that is a license in effect, and if you find that said purported license was not an operative one and Nelson had no operator’s Acense, and the defendant allowed Nelson to operate his, the defendant’s, automobile without a Acense, and the defendant was a Acensed operator and accompanied Nelson, the defendant having his Acense to operate motor vehicles which was in effect with him while Nelson was operating the defendant’s automobile, the statute says that the Acensed operator shall be Aable for any violation of this chapter, G. L. c. 90; so if Nelson under these circumstances was operating this automobile under the influence of intoxicating liquor, and he was an unlicensed operator, and the defendant was a Acensed operator and having his license to operate with him accompanied said Nelson, the defendant would be Aable for Nelson’s operation of said automobile while under the influence of intoxicating Aquor.”
These instructions were misleading and prejudicial to the
Exceptions sustained.