Commonwealth v. Crosby

384 N.E.2d 237, 6 Mass. App. Ct. 975, 1979 Mass. App. LEXIS 1103

• Court: Massachusetts Appeals Court
• Decided: January 18, 1979
• Status: Published

Opinion

The evidence was sufficient to warrant a finding for the Commonwealth on the critical question (see Commonwealth v. Boone, 356 Mass. 85, 87 [1969]; Commonwealth v. Jackson, 369 Mass. 904, 916 [1976]; Commonwealth v. Albano, 373 Mass. 132, 133 [1977]; Commonwealth v. Bennefield, 373 Mass. 452, 452-453 [1977]) whether the defendant knew the gun was in the car. The highly suspicious circumstances which led the police to stop the car in the nighttime were fully explained in the evidence (compare Commonwealth v. Albano, 373 Mass. at 135: contrast Commonwealth v. Clarke, 350 Mass. 721, 722 [1966]; Commonwealth v. Bennefield, 373 Mass. at 453); the gun was found underneath the back seat of a car owned and operated by the defendant (see Commonwealth v. Moscatiello, 257 Mass. 260, 261 262 [1926]; Commonwealth v. Miller, 297 Mass. 285, 286 [1937]; Commonwealth v. Boone, 356 Mass. at 87-88; Commonwealth v. Fancy, 349 Mass. 196, 202, 204 [1965]; Commonwealth v. Gizicki, 358 Mass. 291, 297 [1970]: contrast Commonwealth v. Boone, 356 Mass. at 87-88; Commonwealth v. Bennefield, 373 Mass. at 453, 454); and the unsolicited scatological remark (which included a reference to his being on parole) which the defendant uttered in a state of "anguish or disgust” when he saw the officer remove the gun from underneath the seat could be considered as an admission by the defendant that he had known what the officer would find. Compare Commonwealth v. Fancy, 349 Mass. at 205 n.l; Commonwealth v. Murphy, ante, 335, 339 (1978). It was for the trier of fact to say whether the gun had been placed under the seat by the defendant or by his recently acquired passenger. See Commonwealth v. Miller, 297 Mass. at 286-287.

Judgment affirmed.