Commonwealth v. Barney

155 N.E. 600, 258 Mass. 609, 1927 Mass. LEXIS 1121

Opinion

By the Couet.

The defendant was tried upon a complaint charging that he operated an automobile on a public way “while under the influence of intoxicating liquor, said offence being a second offence.” G. L. c. 90, § 24, as amended by St. 1925, c. 297, § 1. There was no evidence to support that part of the complaint which charged a second offence. The judge instructed the jury to disregard that part of the complaint and to consider the case as a charge of a first offence. The motion by the defendant.for a directed verdict in his favor was denied rightly. Commonwealth v. Lang, 10 Gray, 11. Commonwealth v. Salah, 253 Mass. 549. Commonwealth v. Clifford, 254 Mass. 390, 392. G. L. c. 277, §§ 34, 35. The instruction of the judge to disregard the part of the complaint charging a second offence must be presumed to have been followed by the jury. Commonwealth v. Cody, 165 Mass. 133, 138. Allen v. Boston Elevated Railway, 212 Mass. 191, 194.

There was no error of law in the denial of the defendant’s motion for a new trial. The main ground alleged was one which might have been raised at the trial on the merits. Moreover, the disposition of such a motion rests in sound judicial discretion. Commonwealth v. Dascalakis, 246 Mass. 12, 24, 32, 33, and cases there collected.

Exceptions overruled.