where in the context of an issue as to the propriety of instructions, that court held that: “Knowledge of the presence of the weapons may warrant an inference that the driver of the vehicle is in control of the weapons, but such knowledge does not require any such inference be drawn.”
How later courts described this case
- where in the context of an issue as to the propriety of instructions, that court held that: “Knowledge of the presence of the weapons may warrant an inference that the driver of the vehicle is in control of the weapons, but such knowledge does not require any such inference be drawn.”
- where defendant driver knew of presence of weapons, “[t]hese factors, taken together, were sufficient to permit the jury to infer that the weapons were under the defendant’s control in a vehicle”
- rifle and shotgun in plain view on rear seat sufficient evidence to permit the jury to find against operator
- inference warranted where defendant was driver and weapons were in plain view
Written by the judges who cited it.
The opinion
Brown, J.
(dissenting, joined by Goodman, J.). It is our opinion that the evidence was insufficient for the judge to submit to the jury the complaints charging the defendant with being in control of the shotgun and rifle. There was no evidence of who owned either of the guns. The only direct evidence presented by the Commonwealth which could have indicated that the defendant was in control of the weapons was that he was driving the car in which they were found. Contrast Commonwealth v. Gizicki, 358 Mass. at 297. However, the other two passengers in the car were in close proximity to the guns, and the person in the back was seated next to the guns. Although the jury could have found that the defendant knew of the presence of the weapons at least as early as the time when *301 he got back into the car, that in and of itself was insufficient as matter of law to establish that the defendant was in control of the weapons. See Commonwealth v. Duffy, 4 Mass. App. Ct. at 659-660. As it was at least equally likely that one or more of the other persons in the car exclusively controlled the weapons, the jury were forced to rely on conjecture or surmise in finding the defendant to be in control of the guns. A verdict of guilty on such a premise cannot stand. See Commonwealth v. O’Brien, 305 Mass. 393, 401 (1940).
There is nothing in the record that suggests that the defendant had participated or was about to participate, individually or jointly, in any activity involving the guns (contrast Commonwealth v. Gizicki, supra), and it is not enough merely “to place the defendant and the weapon [s] in the same car.” Commonwealth v. Boone, 356 Mass. at 87. Accord, Commonwealth v. Albano, 4 Mass. App. Ct. at 844. See and contrast Commonwealth v. Maguire, 108 Mass. 469, 471 (1871) (“there was other evidence”); Commonwealth v. Johnson, 199 Mass. 55, 62 (1908) (“other circumstances appearing in evidence”); Commonwealth v. Guerro, 357 Mass. 741, 752 (1970) (“other evidence in the case”). See also Brown v. State, 481 P. 2d 475, 477 (Okla. Crim. App. 1971). Accordingly, we conclude that, in these circumstances, the defendant’s motion for directed verdicts of not guilty should have been granted.