1 Mass. App. Ct. 815

April 4, 1973

On these appeals, under G. L. c. 278, Sections 33A-33G, from convictions for unlawful possession and unlawful sale of heroin the defendant assigns as error the denial of his motions to dismiss which allege prejudice resulting from a six-month delay between the date of the offences charged and the defendant's arrest. As the trial court pointed out in denying the motions, the defendant did not present any evidence at the pre-trial hearing or submit a supporting affidavit. G. L. c. 277, Section 47A ("Any facts relied upon . . . shall be stated in an affidavit attached to said motion.") See Rule 46 of the Superior Court (1954). Nor did the defendant raise the point again at any time during the trial, at which the witnesses were the defendant and an undercover agent who testified that he had bought the heroin from the defendant in the course of a drug investigation then in progress (the apparent reason for the delay in making the arrest). In any event, the transcript indicates neither such actual prejudice as would constitutionally taint the trial nor that the prosecution "intentionally delayed to gain some tactical advantage over . . . [the defendant] or to harass . . . [him]." United States v. Marion, 404 U.S. 307, 325. Commonwealth v. Horan, 360 Mass. 739. See Commonwealth v. Jones, 360 Mass. 498.

Judgments affirmed.


1 Mass. App. Ct. 815

April 23, 1973

This is an action of tort brought against the

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defendant to recover damages for personal injuries sustained by the plaintiff while she was a passenger on a bus owned and operated by the defendant. The basis for the plaintiff's claim is that she was thrown from her seat in the bus due to a sudden stop or jerk of the bus. There was evidence that the driver of the bus stopped short in order to avoid an accident with a taxicab. The direction from which the taxicab came was a matter of conflicting testimony. Following the conclusion of the charge, the defendant requested that the trial judge, a District Court judge sitting in the Superior Court by authority of G. L. c. 212, Section 14B, give certain instructions (included in a timely request for instructions) to the jury. The judge denied the request, and to the denial the defendant excepted. The jury returned a verdict for the plaintiff. A judge is not required to instruct the jury in the terms of a requested instruction -- even if it is correct as matter of law and applicable to the pleadings and the evidence -- if the subject matter thereof is dealt with adequately in the charge. Squires v. Fraska, 301 Mass. 474, 476. Campbell v. Shea, 332 Mass. 422, 425. However, the instructions which were given to the jury fell far short of being adequate. They failed to articulate with clarity the law governing the issues raised during the trial. From a reading of the entire charge we conclude that it is devoid of comprehensive instructions upon the central issue of the obligations of the defendant to the plaintiff as a passenger on its bus under the circumstances surrounding the accident. The judge below failed to give "full, fair, correct and clear instructions as to the principles of law governing" (Buckley v. Frankel, 262 Mass. 13, 15) sudden stopping of public carriers and upon whom the burden of proof rested to explain the sudden stop, especially where it appeared to be undisputed that the interaction of the taxicab and the bus was the cause of the stop. The law is clear that it is incumbent upon the plaintiff to prove that the stop was not caused by a traffic emergency, or that the traffic emergency was caused by the conduct of the bus driver. Cuddyer v. Boston Elevated Railway, 314 Mass. 680, 682. Mathieu v. Springfield Street Railway, 328 Mass. 13, 14. Spiller v. Metropolitan Transit Authority, 348 Mass. 576, 577. Had the judge granted the instructions requested by the defendant on these issues, the deficiency would have been corrected. "The jury should have been instructed more `clearly, [and] adequately . . . concerning principles that ought to guide and control their action.'" Horowitz v. Bokron, 337 Mass. 739, 746.

Exceptions sustained.