COMMONWEALTH vs. ROLAND H. SHERMAN

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

At the trial of a complaint under St. 1903, c. 473, s. 9, as amended by St. 1905, c. 311, s. 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, s. 1, as amended by St. 1905, c. 311, s. 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, s. 9, as amended by St. 1905, c. 311, s. 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, s. 9, as amended by St. 1905, c. 311, s. 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, s. 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, s. 8, being an admission that the by-laws were of legal effect.

COMPLAINT, received and sworn to in the Central District Court of Worcester, on July 17, 1905, charging the defendant with driving an automobile at Leicester on July 12, 1905, at a rate of speed exceeding twelve miles an hour.

In the district court the defendant was found guilty and ordered to pay a fine of $15. On appeal to the Superior Court the case was tried before Crosby, J. upon the following agreed statement of facts :

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" It is agreed that the automobile in question was registered at the time with the Massachusetts highway commission by the defendant and in his name ; that the defendant was in the automobile at the time and place alleged in the complaint ; that the automobile was going in excess of twelve miles per hour, and that twelve miles per hour was the maximum speed at which automobiles were allowed to go in Leicester by the duly established by-laws of that town ; that the defendant at the time the automobile was being driven in excess of twelve miles per hour as aforesaid, was one of five people in the vehicle, was not operating or driving the vehicle himself, but was seated in the tonneau."

After the jury had been impanelled the defendant asked the judge to rule that upon the agreed facts the defendant could not be convicted. The judge refused to make this ruling, and submitted the case to the jury who returned a verdict of guilty. The defendant alleged exceptions.

R. H. Sherman & C. C. Johnson, for the defendant.

G. S. Taft, District Attorney, & W. P. Hall, Assistant District Attorney, for the Commonwealth.