19 Mass. App. Ct. 915 | Mass. App. Ct. | 1984
The defendant’s conviction on a charge of operating under the influence, second offense (see G. L. c. 90, § 24[1][a][1], second par.), must be
There is one other point that deserves comment. The Commonwealth has filed a motion in which it stated its intention not to file a brief and requested that the appeal be dealt with summarily because the above points had merit and require reversal of the conviction. By the motion, the prosecutor in effect confessed error. Confessions of error, of course, do not relieve an appellate court of the performance of its appellate functions since “proper administration of the criminal law cannot be left merely to the stipulation of parties.” Sibron v. New York, 392 U.S. 40, 58 (1968), quoting from Young v. United States, 315 U.S. 257, 259 (1942). Nevertheless, such confessions of error are entitled to be given great weight, ibid., particularly in situations like this where the error is plain. We think, in the circumstances of this case, that the prosecutor deserves commendation for not attempting to defend the indefensible. His action is entirely appropriate and consistent with the duty of fair play owed by a district attorney as explained in Smith v. Commonwealth, 331 Mass. 585, 591 (1954).
Judgment reversed.
Verdict set aside.