Commonwealth v. Peach

Jenney, J. The exceptions were taken in two criminal cases which were tried together in the Superior Court. In one case, the defendant was found guilty of manslaughter because the jury found that the death of Harriet E. Peck had been caused by his gross negligence or wanton and reckless act in driving an automobile. In the other, he was acquitted of the charge of so operating an automobile that the lives and safety of the public might be endangered. St. 1909, c. 534, § 22. St. 1916, c. 290. G. L. c. 90, § 24. At the trial, the defendant did not contend that there was no evidence warranting his conviction on these charges. The exceptions as argued present only one question then arising. — 579 — An automobile driven by the defendant collided with another operated by George S. Peck, the husband of the deceased. The defendant contended that the husband was negligent, and excepted to portions of the charge to the jury dealing with the effect of his negligence. As to this!, the judge instructed the jury: “In other words, you will bear in mind that if Mr. Peck was negligent, as the defendant contends here, that is no defence which this defendant can avail himself of. The purpose of the law is to protect people against the recklessness of others, and the mere negligence of Mr. Peck in this case would be of no avail to this defendant if the defendant’s recklessness caused the death complained of.” He then incorporated into his charge, by quotation, a part of the opinion of Knowlton, C. J., in Aiken v. Holyoke Street Railway, 184 Mass. 269, 271. After doing this, he further instructed the jury: “So keep in mind in your consideration of this case, that, even if Peck was negligent, or even if Peck was reckless, that would be no excuse for killing Mrs. Peck if the defendant was reckless as I have defined the term to you, and his recklessness caused or contributed to her death.” At the close of the charge the defendant excepted to the parts herein quoted. The judge then gave further instructions to the jury which are set out above. Taking the charge as a whole, in clear and unmistakable terms, it directed the jury to consider the entire situation, and specifically called their attention to the conduct of the husband as affecting that of the defendant. The jury were instructed to consider that conduct in determining whether the defendant’s acts or omissions to act had been such as to warrant his conviction. This was sufficient. The defendant does not argue his exceptions to the refusal of the judge to give certain requests for rulings. Clearly these were properly refused. The Commonwealth was not obliged to prove that the defendant intended to commit the crime of manslaughter. Commonwealth v. Hawkins, 157 Mass. 551. Commonwealth v. Parsons, 195 Mass. 560. Nor was the judge required to instruct the jury in the words of the request that in order to justify a conviction it was necessary to prove an intent consisting of an active state of mind amounting to reckless and wanton disregard for the lives of others. The subject matter was fully and carefully covered. — 580 — The remaining exceptions were to rulings requested upon a motion for a new trial. At the trial, the judge instructed the-jury that the defendant could not be convicted of both crimes, saying: “Now if you should find the defendant guilty of manslaughter as alleged in this indictment, you need not go into the other case, Mr. Foreman. It would then become your duty to return a verdict of not guilty on the complaint charging him with operating his automobile so that the lives and safety of the public were endangered. On the other hand, if you should find him not guilty of manslaughter then it would be your duty to proceed to a consideration of the charge contained in the complaint charging him with operating his automobile so as to endanger the lives, and safety of the public. “Now, Mr. Foreman and Gentlemen, you are to apply all the evidence which I have already summarized to this case, if you reach this case in your deliberation. The defendant, you will remember, cannot be convicted of both offences. You can render verdicts as follows: If the defendant is guilty of manslaughter, as charged in the indictment, it will be your duty to return a verdict of guilty in that case, in which case you will return a verdict of not guilty in the case in which he is charged with unlawfully operating. You may find the defendant not guilty of manslaughter, and in that case you will find him either guilty on the-complaint or not guilty on the complaint.” To this, no objection or exception was taken; nor was any request relative thereto made by either the district attorney or the attorney for the defendant. After the defendant had been convicted of manslaughter and acquitted of the other offence, he moved that the verdict of guilty be set aside because the verdicts were contradictory and repugnant. At the hearing on this motion, he made requests for rulings. The requests were refused and the motion denied, all subject to exceptions. These exceptions might well be overruled because they relate to rulings or omissions to rule during the trial to which the defendant then might have excepted, but did not do so, and hence were addressed to the discretion of the court. Commonwealth v. Morrison, 134 Mass. 189. Loveland v. Rand, 200 Mass. 142. Ramsay v. LeBow, 220 Mass. 227. Crowdis v. Hayward, 233 Mass. 377. Commonwealth v. Feci, 235 Mass. 562. — 581 — However, treating the question broadly, the unexcepted ruling became the law of the case by which the jury properly could be governed, and under which the propriety of its action must be ■considered. Cohen v. Edinberg, 225 Mass. 177, 181. The defendant was not harmed thereby. He argues that his conviction of manslaughter cannot stand, because he was acquitted of the charge of operating the automobile so as to endanger the lives and safety of the public of which the deceased was one. It is unnecessary to decide whether the verdicts would have been inconsistent if rendered apart from the instructions given. The bill of exceptions clearly shows that, under the charge to the jury, they were in fact consistent. The exceptions of the defendant to the first request made at the hearing of the motion for a new trial and to the denial of the motion must be overruled. The ■other requests need not be considered. As no inconsistency existed, they did not relate to any question then properly in .issue. Exceptions overruled.