The judgments in these two cases, consolidated for briefing and argument in this court, are not attacked on the merits. The defendant conceded at oral argument (and somewhat less explicitly in his brief) that the reports of the master appointed to hear both cases are adequate to support the judgments. He complains of the revocation on September 26, 1974, of a previous order by another judge directing the master to make certain additional findings and to summarize the evidence underlying his finding on damages. There was undoubted power in the second judge to revoke the order of recommittal by the first judge. M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, 3 Mass. App. Ct. 446 , 457 (1975), and cases and material cited. Nor does the record show an abuse of discretion. The defendant was not entitled to recommittal as a matter of right. He points to no question of law to which the subject matter of the recommittal was relevant; and if the purpose of the order of recommittal was to obtain a summary of the evidence in order to test findings of fact, the defendant had no right to such recommittal because it does not appear that the evidence had been "taken by a reporter selected or approved by the master before any evidence was introduced." Rule 49, par. 7, of the Superior Court (1974) (carrying over this provision from Rule 90 of the Superior Court ).
[Note 1] Robert A. Roy & another vs. Alan Alford.
There was no error in the admission of testimony concerning the defendants' participation in an armed assault which occurred minutes before their arrests and for which they were not being tried. [Note 1] That testimony was relevant to the question of illegal possession or control of a firearm, one of the charges on which the three defendants were being tried. Commonwealth v. Abbott Engr. Inc. 351 Mass. 568 , 572 (1967). The evidence was specifically limited by the trial judge to the question of possession or control of a firearm. Commonwealth v. Sheppard, 313 Mass. 590 , 596, cert. den. 320 U.S. 213 (1943).
Nor in the circumstances of this case was such evidence made inadmissible because the defendants were also being tried on the charge of possession of a controlled substance (heroin) with intent to distribute. Commonwealth v. Chalifoux, 362 Mass. 811 , 815-816 (1973). Commonwealth v. Walker, 370 Mass. 548 , 568-569 (1976). Paschal's individual willingness to stipulate to the fact that he had had possession of the gun did "not preclude the Commonwealth from proving it." Commonwealth v. Nassar, 351 Mass. 37 , 46 (1966). The offered stipulation, in so far as it is disclosed on the record, did not indicate the extent to which either of the codefendants was willing to join in it. To the contrary, the opening statements of their counsel indicated that both codefendants would deny possession and control of a firearm.
[Note 1] There were three defendants on trial, but only Paschal has appealed.