COMMONWEALTH vs. FRANCIS P. CLANCY.

PIERCE, J. In the Third District Court of Eastern Middlesex the defendant was found guilty, and appealed to the Superior Court, on a complaint "that Francis P. Clancy did use a motor vehicle, to wit, an automobile the property of Guy C. Clinch without authority, on a public way in said Cambridge, knowing that such use was unauthorized." After the case was called for trial in the Superior Court, a jury trial being waived, the Commonwealth moved to amend the complaint as follows: "Now comes the Commonwealth in the above-ent1tled cause and moves to amend the complaint therein by striking out as surplusage the words on a public way in said Cambridge.'" This motion was granted over the defendant's objection and the defendant's exceptions saved. Thereupon a "Statement of Agreed Facts" was read to the trial judge by the district attorney, who then rested. The defendant filed a written motion for a finding of "not guilty" and for the acquittal and discharge of the defendant. The motion was denied subject to the defendant's exceptions. On the agreed statement of facts the judge found the defendant guilty and imposed a sentence to the house of correction.

The agreed facts are as follows: The "defendant, Francis P. Clancy, on the 27th day of June, 1927, took a motor vehicle, the property of another, from property of the Boston

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and Maine Railroad in Cambridge, and used the said motor vehicle without authority, knowing that such use was unauthorized, and such use by the defendant of the said motor vehicle consisted in driving the said automobile from behind a roundhouse on the property of the said Boston and Maine Railroad on to another section of the property of the Boston and Maine Railroad which was formerly a public way of the city of Cambridge, and operated the said automobile a distance of some 50 to 100 feet along said strip of land belonging to the Boston and Maine Railroad, in the direction of the Northern Artery, which is a public way, until he was intercepted and the motor vehicle taken away from him before he reached the said Northern Artery; that the section of the property of the Boston & Maine Railroad over which this motor vehicle was operated by the defendant without authority was discontinued as a public way by proper order of the city council of the city of Cambridge, approved November 1, 1926; that at no time was the said motor vehicle operated by the defendant, or used by the defendant without authority, upon any way as defined by G. L. c. 90, § 1."

It is to be noted that the words of the complaint stricken out by order of the court are, "on a public way in said Cambridge," and not merely the words, "on a public way," as the brief for the Commonwealth assumes to be the fact. The foundation of the jurisdiction of the Superior Court in a criminal case coming before it on appeal is measured by the jurisdiction of the District Court from whence the complaint same. Commonwealth v. Duggan, 257 Mass. 465, 469. Had the Third District Court of Middlesex required no proof of the words stricken out as surplusage by the Superior Court, it is plain it had authority to decide the issue presented by the complaint as amended by the Superior Court in view of the provision of G. L. c. 277, § 20, which provides that "The name of the county and court in the caption shall, unless otherwise stated, be considered as an allegation that the act was committed within the territorial jurisdiction of the court." If the defendant wanted further information he should have asked for further specifications under the statute. The issue of importance is, Does the use of a motor vehicle

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anywhere "without authority . . . knowing that such use was unauthorized" violate any prohibition of G. L. c. 90, § 24, as amended by St. 1926, c. 253? We think G. L. c. 90, § 24, as amended, was intended to regulate the use of motor vehicles upon ways as defined in G. L. c. 90, § 1; and was not intended to make criminal the use of a motor vehicle in all places within the Commonwealth, if the use was without authority and known to be unauthorized by the user.

Exceptions sustained.