Commonwealth vs. Osmund E. Boone

Massachusetts Supreme Judicial Court1969-05-30

356 Mass. 85

Summary · law.co

Holding. The court reversed the conviction on the firearm charge and set aside the finding on the vehicle-use charge, entering judgment for the defendant Boone on both counts because the evidence was insufficient to prove knowledge of the firearm's presence or knowledge that the vehicle use was unauthorized.

Boone was tried and convicted on two charges: carrying a firearm in a vehicle without authority and using a vehicle without the owner's permission. A state police officer testified that he found Boone in the front passenger seat of a stopped car with a loaded automatic weapon under the driver's seat. The car's owner, though stipulated to have not authorized either defendant to use the vehicle, did not testify and was not described in any detail.

The court found the evidence insufficient to support either conviction. Regarding the firearm charge, although the statute does not expressly require knowledge, the court held that a defendant cannot be said to have a weapon under his control without knowing of its presence—a principle the prosecution itself conceded. Regarding the vehicle charge, the owner's mere testimony that he had not authorized use was insufficient to prove that a passenger knew the use was unauthorized, particularly given the lack of additional evidence connecting the defendant to knowledge of the unauthorized status.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether knowledge that a firearm is present is a necessary element of the crime of carrying a firearm under one's control
Whether the owner's testimony of non-authorization, without more, proves a passenger knew the use was unauthorized
Sufficiency of evidence to convict a passenger based on a weapon found in a vehicle

Procedural posture

Boone appealed his conviction after a bench trial, arguing that the judge erred in denying his requests for directed verdicts of acquittal on both charges.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Wilkins, C.J.

These are indictments charging the defendants James H. Moore and Boone with violation of (No. 40,430) G. L. c. 269, § 10, for carrying under “his” control in a motor vehicle an automatic pistol without authority; and of (No. 40,431) G. L. c. 90, § 24 (2) (a), for using a motor vehicle upon a certain way without the authority of the owner. Only the defendant Boone was tried, and he was found guilty on both indictments by a judge sitting without jury in a trial subject to G. L. c. 278, §§ 33A-33G. Case No. 40,431 was placed on file. On indictment No. 40,430 he was sentenced to a term of imprisonment. He appealed and argues that the denial of his requests for rulings that he be found not guilty was error.

Counsel stipulated that the owner of the motor vehicle, if present, would testify that he did not authorize either defendant to use it. The owner’s name was not given, and he was not otherwise described.

The only witness was a corporal in the State police. On August 18, 1965, pursuant to a call, he went to a certain intersection in Wellesley about 3:50 p.m. He observed a Wellesley police cruiser stopped beside a certain car in which the defendants were seated, Moore Deferentially in the driver’s seat and Boone in the front passenger’s seat. The defendants were taken to the police station, where they were placed under arrest. The car was towed to a gasoline station, where it was searched about 4:30 p.m., and an auto- matie weapon and a fully loaded clip were found under the driver’s seat.

We are of opinion that both requests should have been granted. The evidence is extremely sketchy. Nothing is shown about the owner of the motor vehicle except the absence of authority to operate. The presence of the motor vehicle at the place where apparently it was stopped by the Wellesley police is unexplained. Other circumstances are unknown.

1. The indictment under G. L. c. 90, § 24 (2) (a), is based on the provision, “whoever uses a motor vehicle without authority knowing that such use is unauthorized.” The testimony of the owner that he had not authorized either defendant to use the motor vehicle is not enough, without more, to convict the defendant passenger of knowledge that its use was unauthorized. The quotation in the Commonwealth’s brief from Commonwealth v. Coleman, 252 Mass. 241, 243, is not in point, as G. L. c. 90, § 24, has since been amended to include the words, “knowing that such use is unauthorized.” St. 1926, c. 253.

2. The pertinent provision of G. L. c. 269, § 10 (as amended through St. 1957, c. 688, § 23), punishes “[Vjhoever . . . carries . . . under his control in a vehicle, a firearm . . . loaded or unloaded, without permission . . ..” There is no express requirement of knowledge, but it would not be a reasonable interpretation that a weapon is within the control of someone who does not know that he has it. Indeed, the Commonwealth, while contending that knowledge is not an essential element of unlawful carrying, concedes that knowledge is necessary to prove control. It is not enough to place the defendant and the weapon in the same car. See Commonwealth v. Clarke, 350 Mass. 721, 722. We would not feel justified in ruling that knowledge is not necessary where the penalty is so severe. We do not agree that there was evidence from which knowledge could be inferred. Cases such as Commonwealth v. Moscatiello, 257 Mass. 260, where the defendant was owner and operator, and Commonwealth v. Miller, 297 Mass. 285, where the defendant was an owner and at least a passenger, if not the driver, are not authorities against the defendant Boone. See Commonwealth v. Fancy, 349 Mass. 196, 204.

Ordinarily we would not consider the appeals in a case which was placed on file. Commonwealth v. Locke, 338 Mass. 682, 684. Commonwealth v. Subilosky, 352 Mass. 153, 165. In the cases at bar, however, it is apparent that both should be brought to a final termination now. Accordingly, in case No. 40,430 the judgment is reversed, and the finding is set aside. In case No. 40,431, the finding is set aside. In each case judgment is to be entered for the defendant Boone.

So ordered.