# Commonwealth v. Gray

> Massachusetts Appeals Court · May 10, 1977 · 5 Mass. App. Ct. 296

URL: https://www.frixlaw.com/law-library/cases/9712668

## Case

- **Full name:** Commonwealth vs. David B. Gray
- **Court:** Massachusetts Appeals Court
- **Decided:** May 10, 1977
- **Citations:** 5 Mass. App. Ct. 296; 362 N.E.2d 543; 1977 Mass. App. LEXIS 637
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Hale, Keville, Goodman, Grant, Armstrong, Brown
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9712668

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9712668. Public record. Not legal advice.