1 Mass. App. Ct. 849

October 16, 1973

This petition under G. L. c. 258 is to recover payment for certain dredging work under a contract with the Commonwealth. The case was heard on agreed facts and the petitioner appeals from a "finding" for the Commonwealth. The finding was equivalent to an order for judgment. Woodworth v. Commonwealth, 353 Mass. 229, 229-230 (1967). It appears from "Findings and Rulings" entered by the trial judge that the order for judgment was based primarily on his misunderstanding of the agreed facts, wherein it appears that the order eliminating the work for which payment is sought, and relied upon by the trial judge as excusing payment therefor, had been rescinded and the petitioner directed to perform the work. Nor is there any basis in the agreed facts for the "finding" that the petitioner had accepted final payment under the contract and thereby released the Commonwealth from the present claim. The order for judgment is reversed, and in accordance with the agreed facts judgment is to be entered for the petitioner in the amount of $61,041.12 with interest and costs thereon.

So ordered.


1 Mass. App. Ct. 849

October 19, 1973

The only exception which need be considered in connection with this conviction of escape in violation of G. L. c. 268, Section 16A (as inserted by St. 1943, c. 19, Section 2, and as amended by St. 1955, c. 770, Section 83), [Note 1] is the one taken by the defendant to the denial of her motion for a directed verdict made at the close of all the evidence. It is conceded by the Commonwealth that the librarian who was conducting the nature walk in which the defendant was participating at the time she disappeared from view was not "designated a correctional officer" within the meaning of G. L. c. 125, Section 13 (as appearing in St. 1955, c. 770, Section 11, and as amended by St. 1957, c. 777, Section 4), and the evidence was insufficient to warrant a finding that the librarian was any other type of "officer" within the meaning of G. L. c. 268, Section 16A. Cf. Commonwealth v. Antonelli, 345 Mass. 518, 520-521 (1963). There was no evidence that the defendant absented herself (cf. Commonwealth v. LaRochelle, 264 Mass. 490, 492 [1928]) from the three hundred acres of grounds which encompassed and were described as belonging to the institution at Framingham and which were thus "appurtenant thereto" within the meaning of Section 16A. See Commonwealth v. Curley, 101 Mass. 24, 25 (1869). The mere fact that the

Page 850

defendant's whereabouts were unknown to any officer or employee of the institution for an interval of approximately five hours did not warrant an inference that the defendant had left the grounds during that interval. The defendant's exceptions are sustained, the verdict is set aside, and judgment is to be entered for the defendant.

So ordered.


[Note 1] "A prisoner who escapes or attempts to escape from the Massachusetts Correctional Institution, Framingham, or from land appurtenant thereto, or from the custody of any officer thereof, or while being conveyed to or from said correctional institution, may be pursued and recaptured and shall be punished . . .."