Com. v. Eramo
| Decision Date | 30 March 1979 |
| Citation | 387 N.E.2d 558,377 Mass. 912 |
| Parties | COMMONWEALTH v. Lincoln ERAMO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frederick S. Pillsbury, Springfield, for defendant.
William T. Walsh, Jr., Asst. Dist. Atty., for the Commonwealth.
Dennis J. White, Boston, for The Massachusetts Medical Soc., amicus curiae, submitted a brief.
Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.
RESCRIPT.
Lincoln Eramo, a registered physician, claims there was insufficient evidence to support his convictions at a jury-waived trial on three indictments for prescribing a controlled substance (Nembutal) without legitimate medical purpose. See G.L. c. 94C, §§ 19, 32; Commonwealth v. Comins, 371 Mass. 222, 226, 356 N.E.2d 241 (1976). The Appeals Court affirmed the convictions, and we granted further appellate review. We reverse and order that judgments of acquittal be entered.
Eramo's convictions were based on three prescriptions for Nembutal which he delivered to Vincent Blanchard, one of four State police undercover agents who visited Eramo's office. The judge acquitted Eramo of seventeen indictments, but convicted him for prescriptions given to Blanchard on October 23, and December 16, 1975, and February 26, 1976. The judge said: "The reason I did that, I believe the Commonwealth sustained its burden of proof that Blanchard requested Nembutal, the doctor gave him Nembutal."
The record does not support the finding that Eramo prescribed Nembutal at Blanchard's request. On October 23, Blanchard suggested Nembutal as a possible prescription for Patnode, another undercover agent, but Eramo did not give Patnode a prescription for Nembutal. Eramo did thereafter give Blanchard a prescription for Nembutal, but both undercover agents denied that Blanchard had requested Nembutal. 1 On December 16, Blanchard made no request for Nembutal. On February 26, Eramo was already filling out the prescription for Nembutal at the time of the request.
On these facts the Commonwealth has failed to sustain its burden. The inference that Eramo exercised independent medical judgment is as compelling as the inference that he issued prescriptions on request without legitimate medical purpose. "When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof." Commonwealth v. Croft, 345 Mass. 143, 145, 186 N.E.2d 468 (1962), quoting from Commonwealth v. O'Brien, 305 Mass. 393, 400, 26 N.E.2d 235 (1940). Thus, the judge should have allowed the defendant's request for findings of not guilty. 2
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