Commonwealth v. Cassidy ( 1911 )

Hammond, J.

The offense described in St. 1909, c. 534, § 16, and charged in the complaint against the defendant, was that of operating an automobile “ at a rate of speed greater than was reasonable and proper, having regard to traffic and the use of the way and the safety of the public ”; and this was the only offense. Of course the burden was upon the Commonwealth to prove his guilt.

The section in question, after creating the offense, goes on to provide that in certain localities therein described “ a speed exceeding twenty miles per hour for the distance of a quarter of a mile” shall be “ prima facie evidence of a rate of speed greater than is reasonable and proper,” and contains a similar provision as to a rate of speed “ exceeding fifteen miles per hour for the distance of one eighth of a mile” in certain other localities. Shortly stated the statute forbids the running of an automobile at a rate of speed greater than is reasonable and proper, and declares what rates of speed shall be prima facie evidence of the rate forbidden. It may be remarked in passing that the earlier statutes expressly prohibited the running of an automobile at a rate of speed exceeding a certain number of miles per hour therein specified; St. 1902, c. 315, § 1; St. 1903, c. 473, § 8; but a different standard of speed was adopted in St. 1906, c. 412, reenacted in the present statute.

The real question in all these cases now is whether the speed is greater than was reasonable and proper, having regard to traffic and the use of the way and the safety of the public, the burden being on the Commonwealth to show that it was. If the speed was such as to make out a prima facie case for the prosecution, still the burden does not change. The jury are to give due weight to the prima facie case taken in connection with the other circumstances disclosed by the testimony, whether .coming from witnesses called by the government or by the defendant, and if they are satisfied that the speed is greater than was reasonable and proper, having regard to traffic and the use of the way and the safety of the public, they should convict the defendant; otherwise they should acquit him. And hence in some cases a defendant may be convicted even if he has not exceeded the rate named in the prima facie clauses of the statute, and in some he may be acquitted even though he may have exceeded it.

The first and third instructions requested by the defendant contained a correct statement of the law so far as respected the offense with which he was charged, and the defendant was entitled to have them given in substance. The trial judge refused to give them, but upon this point, after stating that there was no controversy but that the place where the accident occurred was in the thickly settled portion of the city of Boston, instructed the jury as follows: “ If speed greater than fifteen miles an hour is maintained in such a part of the city, then the person is guilty of an offense, — unless what ? That is to say, if the government has made that out, it has made out its case, — unless what ? Unless the condition at the time required a greater speed. Now is there any evidence here showing that a greater speed would be required ? You can see that a rate of speed might be maintained under certain circumstances which would be essential for the safety of the people in the automobile, or for the safety of other people in the street. Conditions might arise under which a very high rate of speed would necessarily be maintained for a short time, or short distance, to avoid danger. Unless something of that kind appears, a rate higher than fifteen miles an hour under this statute is an offense. If you are satisfied from the evidence that the speed exceeded fifteen miles an hour, you must find a verdict for the government, unless you are satisfied there were special reasons existing at the time which required a greater speed.” And again, near the end of the charge, the following language is used: “ The question is essentially this simple thing: Are you satisfied by this evidence beyond a reasonable doubt that the defendant was driving his car at a rate of speed exceeding fifteen miles per hour in a thickly settled part of the city of Boston where there were intersecting ways and for a distance of an eighth of a mile ? If he was, and there were no circumstances for the safety of the public or traffic in the road, or special conditions requiring a greater rate of speed, you should return a verdict of guilty. If you are not satisfied of that beyond a reasonable doubt, or are satisfied that there were special circumstances requiring a higher rate of speed, then he is entitled to a verdict of not guilty.”

It is manifest that these instructions are not in accordance with the rulings requested by the defendant, which, as we have said, correctly stated the law. Upon this point the defendant’s exceptions must be sustained.

The second instruction was rightly refused. The first section of St. 1909, c. 534, contains this provision: “ ‘ Intersecting way ’ shall mean any way which joins another at an angle, whether or not it crosses the other.” This provision is found in the section which defines the meanings of various terms thereafter used in the subsequent parts of the statute and, notwithstanding the provisions of the thirty-third section of the statute,^* must be held to be applicable to the sixteenth section whenever the latter went into effect.

Exceptions sustained.

* By § 33, all of the statute excepting a number of sections, which went into effect on July 1,1909, among which § 1 was not, and § 16 was, included, did not take effect until December 31, 1909.