Home COMMONWEALTH vs. RANDY POPE.

4 Mass. App. Ct. 854

November 24, 1976

Assuming, without deciding, that it was improper for the District Court judge to allow the prosecutor's motion to amend the complaint at the close of the evidence, the error was rendered immaterial by the appeal from the District Court judgment to the Superior Court. Commonwealth v. Calhane, 108 Mass. 431 , 432 (1871). Commonwealth v. Sheehan, 108 Mass. 432 , note (1871). Commonwealth v. Harvey, 111 Mass. 420 , 421 (1873). Commonwealth v. Holmes, 119 Mass. 195 , 199 (1875). Commonwealth v. Fredericks, 119 Mass. 199 , 205 (1875). Commonwealth v. Burke, 121 Mass. 39 , 40 (1876). Commonwealth v. Whalen, 147 Mass. 376 , 378 (1888). Commonwealth v. Oakes, 151 Mass. 394 , 395 (1890). See Commonwealth v. Dunham, 22 Pick. 11 , 12 (1839); Mann v. Commonwealth, 359 Mass. 661 , 666 (1971). Those cases are still good law. Enbinder v. Commonwealth, 368 Mass. 214 , 218 (1975). They control this case. Contrast Whitmarsh v. Commonwealth, 366 Mass. 212 , 215-216 (1974), app. dism. 421 U.S. 957 (1975). The defendant's remaining assignments of error, not having been argued, are not considered.

Judgment affirmed.

Home PETER P. LOVASCO'S CASE.

4 Mass. App. Ct. 854

November 24, 1976

The single member's "finding" (affirmed and adopted by the reviewing board) that "the claimant has failed to prove by a fair preponderance of affirmative evidence

Page 855

that there was serious and willful misconduct on the part of the employer which resulted in the injury" (see G. L. c. 152, Section 28; O'Leary's Case, 367 Mass. 108 , 115-116 [1975]) was not contrary to law. See and compare Sciola's Case, 236 Mass. 407 , 413-414 (1920); Foster's Case, 242 Mass. 386 , 387-388 (1922); Durgin's Case, 251 Mass. 427 , 429-430 (1925); McCarthy's Case, 314 Mass. 610 , 611-612 (1943); Diaduk's Case, 336 Mass. 5 , 7 (1957). The employee's arguments are largely predicated on the mistaken premise that this court can make its own independent findings of fact. See Hachadourian's Case, 340 Mass. 81 , 85 (1959).

Judgment affirmed.