Com. v. Smith

• Decision Date: 15 December 1975
• Citation: 3 Mass.App.Ct. 795,338 N.E.2d 559
• Parties: COMMONWEALTH v. Calvin SMITH.
• Court: Appeals Court of Massachusetts

Page 559

338 N.E.2d 559

3 Mass.App.Ct. 795

COMMONWEALTH

v. Calvin SMITH.

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 8, 1975.

Decided Dec. 15, 1975.

Joan C. Stanley, Boston, for defendant.

Peter D. Feeherry, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C.J., and GRANT and ARMSTRONG, JJ.

RESCRIPT.

The variations from the supplemental charge approved in Commonwealth v. Rodriguez, --- Mass. ---, --- ^a, 300 N.E.2d 192 (1973), which are now complained of appear to have been covered by something said in the original charge, which was given only a few hours earlier and which is not before us. No exception was taken to any portion of the supplemental charge (compare COMMONWEALTH V. DANIELS, --- MASS. --- , 304 N.E.2D 197 (1973)^B), and we are not convinced that a 'substantial risk of a miscarriage of justice' (Commonwealth v. Freeman, 352 Mass. 556, 564 (1967)) will result from our refusing to consider the defendant's present complaints. Commonwealth v. Foley, 358 Mass. 233, 236, 263 N.E.2d 451 (1970); Commonwealth v. Underwood, 358 Mass. 506, 509--510, 265 N.E.2d 577, 227 N.E.2d 3, 9 (1970). COMMONWEALTH V. O'NEIL, --- MASS.APP. --- , 330 N.E.2D 852 (1975)^C. It strikes us (if the transcript is correct) that the 'and' must have been understood by the defendant's trial counsel as an inconsequential slip of the tongue.

Exceptions overruled.

a. Mass.Adv.Sh. (1973) 1181, 1196.

b. Mass.Adv.Sh. (1973) 1651.

c. Mass.App.Ct.Adv.Sh. (1975) 916.