JOEL SIRK vs. EDWARD M. PLANTE.

COMMONWEALTH vs. THEODORE J. DESIMONE.

349 Mass. 770

October 28, 1965

Judgments affirmed. There was no error in the denial of the defendant's motions for directed verdicts at the close of the Commonwealth's case (G. L. c. 278, Section 11, as amended by St. 1964, c. 108, Section 1) at a trial, subject to G. L. c. 278, Sections 33A-33G, of indictments charging him with manslaughter as the result of the alleged wanton and reckless operation of a motor vehicle on the evening of July 5, 1964. Two young male companions of the defendant died in a collision at Whitman between his vehicle and a vehicle in which four girl acquaintances were riding. On the Commonwealth's case in chief the jury could find that: the two cars, proceeding in opposite directions, passed one another on Route 14; the girls' car turned around and followed the boys' car; both cars stopped briefly and the occupants engaged in some conversation; the girls' car proceeded on and was followed and then passed by the defendants' car which, at a speed of about forty or forty-five miles an hour, then went to the left of a traffic island marked "Keep Right" and twice weaved from left to right on the road and came to a stop; the girls' car continued on; the defendant started up again, overtook and passed with a loud whining noise a vehicle traveling at forty miles an hour, passed another car and then came upon the girls' car and approached within inches of its rear. The collision took place as the defendant attempted to pass the girls' car which had accelerated to avoid being struck in the rear. This series of acts could be found, under appropriate instructions, to constitute wanton and reckless conduct. Commonwealth v. Arone, 265 Mass. 128 , 132. There was no exception to

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the charge of the judge. Where death results from wanton and reckless conduct, the crime is manslaughter. Commonwealth v. Hartwell, 128 Mass. 415 , 417. Commonwealth v. Hawkins, 157 Mass. 551 . Commonwealth v. Welansky, 316 Mass. 383 , 401.