COMMONWEALTH v. SHERMAN

Automobile. Misdemeanor. Practice, Criminal, Agreed statement of facts. Words, "Duly established."

At the trial of a complaint under St. 1903, c. 473, § 9, as amended by St. 1905, c. 311, § 5, for driving an automobile at a rate of speed exceeding that allowed by the by-laws of the town in which it was driven, the fact that the automobile was registered with the Massachusetts highway commission by the defendant in his own name, under St. 1903, c. 473, § 1, as amended by St. 1905, c. 311, § 2, requiring such registration by the owner or person in control of an automobile, warrants a finding that the defendant was the general owner of the vehicle or had a special property therein which gave him control of it.

In the commission of a misdemeanor there are no degrees of guilt and all who participate therein are principals and may be charged as such.

At the trial of a complaint under St. 1903, c. 473, § 9, as amended by St. 1905, c. 311, § 5, for driving an automobile at a rate of speed exceeding that allowed by the by-laws of the town in which it was driven, if it appears that the defendant was the general owner of the vehicle or had such a special property therein as gave him the right to control it, that he was seated with other persons in the vehicle but was not operating it, and that the vehicle was being run by the operator at an illegal rate of speed, these facts, if uncontradicted and unexplained, warrant the inference that the owner knowingly allowed his vehicle to be run illegally, and make out a prima facie case.

At the trial of a complaint under St. 1903, c. 473, § 9, as amended by St. 1905, c. 311, § 5, for driving an automobile at a rate of speed exceeding that allowed by the by-laws of the town in which it was driven, the statement in an agreed statement of facts, that the by-laws in question were "duly established" admits that the by-laws were advertised and posted in compliance with St. 1905, c. 366, § 1, and that they were made under that statute, and also that the place covered by them was within the thickly settled part of the town in question within the meaning of St. 1903, c. 473, § 8, being an admission that the by-laws were of legal effect.

LORING, J.

In the opinion of a majority of the court these exceptions must be overruled. The fact that the automobile was registered with the Massachusetts highway commission by the defendant, and in his own name, warranted a finding that he was the general owner of it or that he had a special property therein which gave him control thereof. Section 1 of St. 1903, c. 473, amended by St. 1905, c. 311, § 2, requires that automobiles shall be registered by the owner or person in control thereof.

If the defendant is guilty here he is guilty not as owner but because the evidence warranted the jury in finding as a fact that he participated in the vehicle being run at an illegal speed.

The offence with which he stands charged is a misdemeanor and not a felony. Not being punishable by imprisonment in the State prison, (St. 1905, c. 311, § 5, amending St. 1903, c. 473, § 9,) it is a misdemeanor. R.L.c. 215, § 1.

If it be material here, it is settled that in misdemeanors there are no degrees, but that all who participate in the commission of the offence are principals and may be charged as such. Commonwealth v. Macomber, 3 Mass. 254. Commonwealth v. Frost, 5 Mass. 53. Commonwealth v. Drew, 3 Cush. 279. Commonwealth v. Wallace, 108 Mass. 12.

The question therefore comes down to this: Did the Commonwealth make out a prima facie case of participation by the defendant in the vehicle in question being run at an illegal speed, by showing that the vehicle was being run by the operator at an illegal speed while the defendant was in the tonneau (being either the general owner of the vehicle or having such a special property in it as gave him the right to control it)? In our opinion those facts warranted the inference that the owner knew and allowed his vehicle to be illegally run. The case so made out is a prima facie case only. It may be contradicted or explained. But uncontradicted and unexplained it does, in our opinion, warrant that inference, and so makes out a prima facie case.

The agreed fact that the by-laws were "duly established" admits that the by-laws were advertised and posted in compliance with St. 1905, c. 366, § 1, and that they were made under that act (St. 1905, c. 366); also that the place covered by them was within the thickly settled part of the town in question within the meaning of St. 1903, c. 473, § 8. In short, it is an admission that they were of legal effect.

Exceptions overruled.