COMMONWEALTH vs. JOHN F. FITZPATRICK, JR.

GRANT, J. The defendant has appealed from his conviction by a jury of six on a complaint charging him with a violation of G. L. c. 266, Section 30. We reverse for inexcusable error in the portion of the charge which purported to define reasonable doubt. We also consider a procedural question which may arise on retrial.

1. The judge's first attempt to define reasonable doubt consisted of an arguably passable variation on the "moral certainty" theme of Commonwealth v. Webster, 5 Cush. 295, 320 (1850). See Commonwealth v. Tavares, 385 Mass. 140, 147 (1982); Commonwealth v. Conceicao, 388 Mass. 255, 266-267 (1983). In the very next sentence the judge ignored

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the teaching of an unbroken line of cases which all but command that the definition of reasonable doubt be taken from the Webster case. See, e.g., Commonwealth v. Gerald, 356 Mass. 386, 390 (1969); Commonwealth v. Pettie, 363 Mass. 836, 842-843 (1973); Commonwealth v. Therrien, 371 Mass. 203, 207-209 (1976); Commonwealth v. Robinson, 382 Mass. 189, 197-198 (1981). To be specific, the judge told the jury that "beyond a reasonable doubt . . . means you must be pretty darn sure." The remainder of the charge contained nothing comparable to any of the redeeming features found in any of the cases just cited.

2. The defendant filed a timely request in writing for the appointment of a stenographer in accordance with the provisions of G. L. c. 218, Section 27A(h), as appearing in St. 1978, c. 478, Section 189. [Note 1] The judge denied that request and "gave as [one of] his reasons that there were insufficient funds available to provide a stenographer." [Note 2] The proceedings were recorded electronically, and counsel, after listening to

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the tapes, were able to agree on the only two corrections in the transcript prepared from the tapes which were desired by the defendant. See Mass.R.A.P. 8(c) and (e), as appearing in 378 Mass. 933 , 934 (1979). [Note 3] It is clear from the argument before us that counsel for the defendant will insist on his request for a stenographer at any retrial, and it is not unlikely that there will again be no appropriation from which to pay for the services of a stenographer. Accordingly, we take this occasion to express our views on the proper interpretation of the aforementioned Section 27A(h).

Counsel for the defendant argues, in effect, that the first "shall" in that section is mandatory and that the defendant is entitled at all odds to a trial transcript prepared by a stenographer unless he (the defendant) chooses to assent in writing to a transcript prepared from an electronic recording. We think the argument overlooks the setting in which Section 27A(h) was enacted and, in particular, the provisions now found in S.J.C. Rule 1:05, 382 Mass. 704 (1981). In O'Coin's, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507 (1972), the Supreme Judicial Court ordered the issuance of a writ of mandamus requiring a county treasurer to pay for a tape recorder and three tapes which had been purchased by a judge of the Superior Court for use in a criminal session of that court in order to avoid a temporary closing of the session because no stenographer was available. The Supreme Judicial Court described the situation which gave rise to the purchase as an emergency (362 Mass. at 517), announced its intention to promulgate a rule on the subject of emergency expenditures ( 362 Mass. 516), and said that "[i]t is not essential

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that there have been a prior appropriation to cover [such] expenditure[s]" (362 Mass. at 511).

Shortly after the decision in O'Coin's, the Supreme Judicial Court on November 8, 1972, promulgated its new rule 3:23, which was set out in 359 Mass. 832. Paragraph (1) of the rule provided that "[e]xcept as provided by paragraph (4), by statute, or by other rule or order of this court, no judge of a court shall enter into, order, or approve a contract on behalf of the Commonwealth or any of its political subdivisions requiring the expenditure of funds or the incurring of a liability in excess of any appropriation therefor, or for which no appropriation has been made, without the written approval of the appropriate judicial officer designated by this court" (emphasis supplied). Paragraph (2) of the rule provided that "the appropriate judicial officer" could approve an expenditure in excess or in the absence of an appropriation only upon a written finding that the "facilities, goods or services sought are reasonably necessary to the proper execution of the court's responsibilities." Paragraph (4) provided that in the absence of the prior written approval of the "appropriate judicial officer" no judge could direct or approve an expenditure in excess or in the absence of an appropriation except "in instances where failure to obtain the required facilities, goods, or services expeditiously and without delay will frustrate the execution of the court's responsibilities." [Note 4]

We think it clear, as applied to a case such as the present, that S.J.C. Rule 3:23 established a canon of construction under which no statute authorizing or directing the appointment of a stenographer is to be interpreted as authorizing or directing an expenditure of money in excess or in the absence of an appropriation unless the statute expressly so

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provides. [Note 5] We also think it clear that the Legislature must be taken to have had that canon in mind when it amended G. L. c. 218, Section 27A, as part of the court reorganization effected by St. 1978, c. 478 ("An Act providing for the orderly administration of justice in the commonwealth"). See and compare Condon v. Haitsma, 325 Mass. 371, 373 (1950); Boston Edison Co. v. Sudbury, 356 Mass. 406, 417-418 (1969); First Natl. Bank v. Judge Baker Guidance Center, 13 Mass. App. Ct. 144, 151 (1982). Accordingly, we do not read Section 27A(h) as impliedly authorizing or directing an expenditure in excess or in the absence of an appropriation.

To return to the case at hand, the entries are

Judgment reversed. Verdict set aside.