3 Mass. App. Ct. 784

October 30, 1975

The defendant was indicted for receiving stolen goods and convicted after a trial held subject to the provisions of G. L. c. 278, Sections 33A-33G. The defendant contends that the cumulative effect of a number of errors (none of them significant when considered by itself) allegedly made by the judge during the course of the trial and in the charge, was to deny him a fair trial. Of the errors now advanced, only the exclusion of a question by defense counsel on redirect examination of a defense witness was the subject of an exception. No offer of proof was made after the judge excluded the question. Without an offer of proof there is nothing in the record to show that there was prejudicial error in excluding the question. Commonwealth v. Kleciak, 350 Mass. 679 , 693 (1966). Moreover, as the question was asked on redirect examination and was not within the scope of matters testified to on cross-examination, it was within the discretion of the judge to exclude it. Commonwealth v. Galvin, 310 Mass. 733 , 748 (1942). Commonwealth v. Barnes, 2 Mass. App. Ct. 357 , 362 (1974). The remaining assignments of error, not being based on exceptions, bring nothing before this court. Commonwealth v. Daniels, 364 Mass. 829 (1973). We have examined the transcript and the charge as a whole and conclude that there is no "substantial risk of a miscarriage of justice" (Commonwealth v. Freeman, 352 Mass. 556 , 564 [1967]) which requires us to pass on those actions of the judge to which no exceptions were taken. See Commonwealth v. Stout, 356 Mass. 237 , 243 (1969).

Judgment affirmed.


3 Mass. App. Ct. 784

November 4, 1975

These are appeals by the mother of an eight-year-old child from decrees of a probate judge awarding custody of the child to the father on his petition and denying her cross petition for custody. We have before us a transcript of the evidence, including the report of an investigator appointed under G. L. c. 215, Section 56B. See Jenkins v. Jenkins, 304 Mass. 248 , 252-253 (1939); Jones v. Jones, 349 Mass. 259 , 264 (1965). In the circumstances the appeal presents all questions of fact and of law. We must examine the evidence and arrive at our own conclusions therefrom. However, where as here, the judge's decision turned largely upon oral testimony, it must stand unless found by us to be plainly wrong. Colbert v. Hennessey, 351 Mass. 131 , 134 (1966). Gannon v. MacDonald, 361 Mass. 851 (1972). We bear in mind that the judge, who saw and heard the witnesses, was in a better position to determine their credibility than are we from the printed record. Our review of the evidence leads to the conclusion that the ultimate finding of the judge,

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implicit in his decree, that the best interests of the child will be served by giving custody to her father, is not plainly wrong. Compare Fuller v. Fuller, 2 Mass. App. Ct. 372 (1974).

Decrees affirmed.