4 Mass. App. Ct. 777

February 11, 1976

1. The defendants' contention based on G. L. c. 160, Sections 88 and 114, in their appeal from a judgment entered on August 15, 1974, in the Superior Court was not raised in the pleadings or (for all that appears) otherwise brought to the attention of the trial judge, and we therefore do not consider it. See Foster v. Everett. 334 Mass. 14 , 18 (1956); Henchey v. Cox, 348 Mass. 742 , 747 (1965); Milton v. Civil Serv. Commn. 365 Mass. 368 , 379 (1974). Nor do we subscribe to the defendants' assertion that the judge insufficiently defined the geographical extent of the plaintiff's easement, for we interpret the judgment, read in the context of the findings and rulings underlying it, as a determination that the easement is coterminous with the Cary Avenue Extension in its entirety. The defendants make no suggestion in their brief that the evidence did not warrant such a determination. 2. The defendants' appeal from the court's order denying their motion to amend its findings, to make additional findings and to amend its judgment, filed after the entry of judgment (see Mass.R.Civ.P. 52[b], 365 Mass. 817 [1974]), must fail because the record does not disclose what amendments were sought by the motion or what transpired at the hearing thereon. The defendants apparently made no effort to remedy those omissions by availing themselves of the procedure afforded by Mass. R.A.P. 8(c), 365 Mass. 850 (1975). Therefore, the defendants have not sustained their burden of showing prejudicial error in the denial of the motion. See Ferris v. Turner, 320 Mass. 555 , 558 (1947). Compare Bermingham v. Thomas, 3 Mass. App. Ct. 742 (1975). 3. The defendants' appeal from the judge's findings, rulings and order for decree entered on May 30, 1974, is without standing. DeCanio v. School Comm. of Boston, 358 Mass. 116 , 119 (1970), and cases cited. Cassani v. Planning Bd. of Hull, 1 Mass. App. Ct. 451 , 458 (1973). 4. The appeal from the findings, rulings and order for decree is dismissed. The judgment and the order denying the motion to amend the judge's findings are affirmed.

So ordered.


4 Mass. App. Ct. 777

February 13, 1976

This is an appeal under G. L. c. 278, Sections 33A-33G, from a conviction of armed robbery. 1. There was no error in the denial of the defendant's motion for a directed verdict. From the evidence most favorable to the Commonwealth it could have been found that approximately 7:45 P.M. on January 28, 1971, two men, one of them armed with a pistol, entered a grocery store in Lynn and robbed the manager. Within fifteen minutes, two Lynn police officers on patrol in a cruiser received a radio transmission informing them of the robbery. When they were about 2,000 yards from the store, they observed a white Chevrolet automobile, Massachusetts registration number U28-398, traveling in the opposite

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direction. One of the officers recognized the driver as the defendant. As they were pursuing the Chevrolet, they observed an object being thrown from it. (The object was later recovered and identified as the pistol used in the robbery.) Two passengers jumped from the car while it was moving. They were apprehended and later identified by the store manager as the men who had entered the store and robbed him. At the time of their arrest a wallet taken from the store manager in the course of the robbery was discovered by the police on the ground near one of the men. The defendant evaded his pursuers by turning the car into a nearby parking lot. Several months later he was arrested. From these facts the jury could reasonably have inferred that the defendant had acted in concert with the other two men, that they had driven to the store together, that the defendant had waited outside, acting as a lookout, while the others were inside and that the defendant had driven the "getaway car." Thus the defendant could have been convicted as a principal. Commonwealth v. Breen, 357 Mass. 441 , 447-448 (1970). See Commonwealth v. Medeiros, 354 Mass. 193 , 197-199 (1968), cert. den. sub nom. Bernier v. Massachusetts, 393 U.S. 1058 (1969); Commonwealth v. Pina, 360 Mass. 139 , 143 (1971). Compare Commonwealth v. Perry, 357 Mass. 149 , 151 (1970); Commonwealth v. Benders, 361 Mass. 704 , 707-708 (1972); Commonwealth v. Clark, 363 Mass. 467 , 472-473 (1973). 2. Over the defendant's objection and exception the Commonwealth introduced a rental contract which showed that a white Chevrolet bearing registration number U28-398 had been rented on January 20, 1971, and had been returned on January 29. Later in the trial the defendant stipulated that the signature on the document was his. He concedes that the trial judge was warranted in making the preliminary findings of fact which are prerequisites for the admissibility of such a document, but he now argues that the judge committed reversible error in failing to submit those questions of fact to the jury, as required in criminal proceedings by G. L. c. 233, Section 78. Since the defendant took no exception to this omission, there was no reversible error. See Commonwealth v. Devlin, 335 Mass. 555 , 563 (1957). 3. During direct examination of a police officer, counsel for the defendant elicited a response that the Chevrolet had been seen "in the vicinity of a recent holdup." Counsel was instructed by the court "to be careful in your questions." Thereafter, when the witness was asked by counsel for the defendant to read from a police report (which counsel for the defendant had inspected), he read that another officer "had noted [the Chevrolet] in a recent holdup." Counsel for the defendant moved for a mistrial. The trial judge denied the motion and immediately instructed the jury to disregard the statement. There was no error in denying the motion for a mistrial. That the witness would refer to another crime in reading from the report was readily foreseeable by counsel. The judge's prompt and forceful instructions cured any prejudice which might have resulted from the response of the witness. See Commonwealth v. Scott, 355 Mass. 471 , 475-476 (1969); Commonwealth v. Gibson, 357 Mass. 45 , 48-49, cert. den. 400 U.S. 837 (1970); Commonwealth v. Richards, 363 Mass. 299 , 309-310 (1973); Commonwealth v. Stone, 366 Mass. 506 , 512-513 (1974).

Judgment affirmed.