2 Mass. App. Ct. 819

April 10, 1974

This is an appeal from an order sustaining a demurrer to a declaration containing a single count in tort for malicious prosecution. Of the grounds stated in support of the demurrer, we need consider only one, to wit, that the declaration was "vague and indefinite." We construe this to be an assertion that the plaintiff did not comply with G. L. c. 231, Section 7, Second, which requires that a declaration state "concisely and with substantial certainty the substantive facts necessary to constitute the cause of action." The declaration in the present case alleged only that a criminal complaint filed in a District Court and charging the plaintiff with larceny had been "after trial, dismissed [by the court], and by a judgment thereof, of the premises charged against him by the said complaint." It did not specify the nature of the dismissal or otherwise make clear that the prosecution had been finally terminated in favor of the plaintiff. See Bannon v. Auger, 262 Mass. 427, 432, 433-434 (1928); Jacobs v. Mann, 300 Mass. 258, 260 (1938); Dangel v. Offset Printing, Inc. 342 Mass. 170, 171 (1961); Restatement: Torts, Section 658; Prosser, Torts, Section 119, pp. 838-841. In these circumstances the demurrer was properly sustained. Gordon v. Greany, 304 Mass. 677 (1939). White v. Shulman, 325 Mass. 759 (1950). The order sustaining the demurrer is affirmed without prejudice to any motion which the plaintiff may file in the Superior Court, within thirty days of rescript, to amend his declaration.

So ordered.


2 Mass. App. Ct. 819

April 11, 1974

After a trial held under the provisions of G. L. c. 278, Sections 33A-33G, the

Page 820

defendant was found guilty of possession of heroin, possession of hypodermic needles and syringes, and possession of heroin with intent to sell. He was sentenced on the latter indictment. He has appealed, and the case is before us on his assignment of errors. 1. The principal issue is whether certain exhibits were erroneously admitted in evidence because "links in the chain of custody" were missing. We have examined the transcript of the trial and are of the opinion that the chain of custody of the exhibits could be found to have been sufficiently established to justify their admission in evidence. "If there were weaknesses in the chain, that would go to the weight of the evidence rather than to its admissibility." Commonwealth v. White, 353 Mass. 409, 419-420 (1967), and cases cited. 2. Evidence that the defendant, a heroin user, possessed 375 bags of heroin having a street value of $3,750, warranted the jury's inferring that the defendant intended to sell the heroin. Commonwealth v. Ellis, 356 Mass. 574, 578-579 (1970).

Judgment affirmed.