COMMONWEALTH vs. JOSEPH FANCIULLO.

GRANT, J. The defendant was tried without jury in the Superior Court on a complaint under G. L. c. 273, Section 15, as appearing in St. 1977, c. 848, Section 6. [Note 1] At the conclusion of the

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Commonwealth's case the defendant presented a motion for the entry of a "judgment of acquittal," which was impliedly denied. The defendant rested. The judge entered an express adjudication of paternity, placed the defendant on probation, and ordered him to make periodic payments for the support and maintenance of the child. [Note 2] The defendant appealed. Commonwealth v. Reed, 364 Mass. 545, 546-547 (1974). McHoul v. Commonwealth, 365 Mass. 465, 469 (1974).

1. There had been no prior adjudication of paternity, but G. L. c. 273, Section 15, as in effect at the time of the alleged offence and at the time of the trial [Note 1], expressly contemplated that such an adjudication could be made in proceedings brought thereunder. [Note 3] There was evidence that the defendant had had sexual intercourse with the complainant on May 15 and 21, 1977, and that a child was born to her on February 14, 1978. That evidence was sufficient to warrant a finding that the defendant was the father of the child. See and compare M___ v. W___, 352 Mass. 704, 706 (1967).

2. The more difficult question is whether the evidence was sufficient to warrant a finding that the defendant knew or should have known that he was the father of the child, so that it could be inferred that he had "neglect[ed] or refuse[d]" to provide for its maintenance and support within the meaning of Section 15. The evidence most favorable to the Commonwealth on this point may be summarized as follows.

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In early May, 1977, the complainant struck up an acquaintance with the defendant in a cocktail lounge in Warren where he was then employed as a bartender. Shortly prior to the first act of intercourse the defendant told the complainant that he had "just graduated from hair dressing school." Either on that occasion or shortly thereafter he signed and gave the complainant and her girl friend business cards of a hairdressing establishment located on Main Street in Leominster. According to the complainant, the defendant referred to that establishment as "a place . . . [where] he thought he was going to start working."

As already mentioned, the two acts of intercourse occurred in the middle and latter part of May, 1977. The defendant seems to have disappeared from sight shortly after the second act, and the complainant had no conversation with him at any time thereafter. Some time in June she discovered that she was pregnant. In either the latter part of that month or the early part of July she composed a letter to the defendant in which she advised that she was pregnant by him. [Note 4] She mailed the letter in an envelope bearing the defendant's name and the address of a hairdressing establishment located on Central Street in Leominster. [Note 5] She testified that she had obtained that address from a newspaper advertisement of that establishment which contained a picture of the defendant. That advertisement was received in evidence, over the valid objection of the defendant that there was no evidence of when the advertisement had

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appeared in the newspaper. [Note 6] That lacuna in the evidence was never filled. It does not appear that the complainant placed her name or return address on the envelope containing the letter.

The child was born on February 14, 1978. In the latter part of that month the complainant placed a birth announcement in an envelope bearing the defendant's name. The announcement, a copy of which was received in evidence, contained a small picture of a baby, the name "Jennifer Lynn [surname of the complainant]," and the date of the child's birth. Except for the coincidence in surnames, there was nothing on the face of the announcement to indicate the identity of the mother. There was nothing at all to indicate the identity of the father. The complainant mailed the envelope containing the announcement and bearing the defendant's name to the address of a hairdressing establishment located on Summer Street in Fitchburg. The defendant had never mentioned that establishment to her. She had obtained its name and address from its business card, which bore the defendant's name. A friend had given the card to her "when I was pregnant." On the evidence, the "when" could have been any time between June of 1977, when the complainant discovered she was pregnant, and the end of that year. When the card had come into the possession of the friend was similarly shrouded in obscurity. Again, there was no evidence of whether the complainant had placed her name or return address on the envelope.

Except as already indicated, there was no evidence of where the defendant had been employed during any portion of the period between the time when he dropped from sight

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shortly after May 21, 1977, and the time when he received notice of the present complaint. [Note 7] Other than what has already been related, there was no evidence from which it could have been found that the defendant knew or should have known that he was the father of the complainant's child. We are of opinion that the evidence as a whole, taken in the light most favorable to the Commonwealth, was insufficient to warrant a rational trier of fact (Commonwealth v. Latimore, 378 Mass. 671, 677-678 [1979]) in concluding that the defendant knew or should have known at any time prior to the service of the complaint or him that he was the father of the child. Without such evidence the defendant could not properly be convicted of having "neglect[ed] or refuse[d]" to contribute to the support and maintenance of the child within the meaning of G. L. c. 273, Section 15. It follows that the conviction must be set aside and the complaint dismissed.

3. The Commonwealth has suggested that we should salvage the order for support, as was done in Commonwealth v. MacKenzie, 368 Mass. 613, 617-619 (1975). We think the suggestion fails to apprehend the particular statutory provisions which were involved in that case. There the complaint was under the former G. L. c. 273, Section 11. Section 16 of that chapter, as unamended, when read in light of Sections 1 (as amended through St. 1971, c. 762) and 5 (as amended through St. 1925, c. 182) of that chapter, expressly provided that an adjudication of paternity made under Section 11 could serve as the basis for the entry of an order for the reasonable support of an illegitimate child. [Note 8] In the statutory aftermath of the MacKenzie case, G. L. c. 273, Section 11, was repealed (by St. 1977, c. 848, Section 7) and effectively replaced by G. L. c. 273, Section 12, as appearing in St. 1977, c. 848, Section 5. Section 16 of G. L. c. 273 was amended by St. 1977, c. 848,

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Section 6, to provide that orders under Sections 1 and 5 (as appearing in St. 1977, c. 848, Sections 2 and 3, respectively [Note 9]) of that chapter (including among them orders for the reasonable support of an illegitimate child) can be entered "[a]fter the adjudication and the birth of the child, in proceedings under section twelve, or after conviction, in proceedings under the preceding section" (emphasis supplied).

We think it quite clear that it is only a conviction under the present G. L. c. 273, Section 15, that can serve as the basis for an order for support and maintenance under that section or under the present G. L. c. 273, Sections 1 and 5, and that an adjudication of paternity entered under Section 15, standing by itself, will not suffice for the purpose now desired by the Commonwealth. As the conviction in this case must be set aside for the reasons already given, there is no basis for salvaging the present order for support and maintenance. [Note 10]

The judgment is reversed, the finding of guilty is set aside, and the complaint is to be dismissed.

So ordered.