5 Mass. App. Ct. 878

October 21, 1977

Summary judgment was erroneously granted in favor of the plaintiff, who sought the return of a deposit under a purchase and sale agreement on the ground that the sellers (defendants) were unable to "convey a good and clear record and marketable title [to "[s]aid premises"], free from encumbrances," as required by the agreement. The plaintiff claims that the premises to be conveyed are "subject to a Taking by the City of Newton of easement for laying and maintaining main drain and common sewer through Baldpate Hill Road" and also subject to "an easement . . . [taken by the city of Newton] with right to slope or bank on land adjoining for support of street . . . ." The defendants are correct in their contention that, as indicated in their counter affidavit, the description in the agreement of the premises to be conveyed -- "a certain parcel of land with the buildings thereon, now numbered 177 Baldpate Hill Road in Newton Centre, Mass., bounded and described as follows [without any further description]" -- raises material questions of fact as to the extent of the premises intended to be conveyed and whether the description in the agreement covers the land subject to the aforementioned easements. Schon v. Odd Fellows Bldg. Assn. 255 Mass. 465, 468 (1926). Parol evidence will be admissible to show the intent of the parties. Mead v. Parker, 115 Mass. 413, 415 (1874). Danforth v. Chandler, 237 Mass. 518, 522 (1921). See Imper Realty Corp. v. Riss, 358 Mass. 529, 535 (1970). We make no determination as to the applicability of Siegel v. Shaw, 337 Mass. 170 (1958).

Judgment reversed.


5 Mass. App. Ct. 878

October 21, 1977

The defendant appeals, G. L. c. 273, Sections 33A-33G, from convictions on three indictments, tried together with indictments against two others, not now before this court, who were also convicted. The defendant argues two assignments of error. We affirm the judgments of conviction.

1. The defendant sought, after the Commonwealth's case and again

Page 879

after the other two defendants had rested, to introduce in evidence a hospital record (G. L. c. 233, Section 79, as amended through St. 1974, c. 225), indicating that the defendant had, nearly a month before the robbery, been shot in his right shoulder, making an entrance and an exit wound. The hospital record of the defendant's visit on October 17, 1975, the day after the robbery, contained the following notation under "physical examination": "GSW r. shoulder, some granulation but persistent purulent drainage. No swelling or cellulitis." The defendant's purpose was to show an impairment of his right arm inconsistent with his activities during the robbery as described by the victims -- carrying a shotgun while pushing and shoving the victims, searching them, pushing aside a wine rack, scooping up money, etc. -- and thus to cast doubt on their identifications of the defendant. This was obviously a legitimate purpose, and if material to that purpose, the admission of the record was required (Commonwealth v. West, 312 Mass. 438, 440-441 [1942]; Commonwealth v. Franklin, 366 Mass. 284, 288-290 [1974]) -- even though it did not state in so many words that there was an impairment of the arm, the basis for exclusion given by the trial judge. Here, however, there was no lay testimony as to the condition of the defendant's arm, of which the record might have been corroborative; nor was there any medical expert prepared to testify on the basis of or in addition to the record. An argument to the jury based on the bare hospital record would in this case have been only an appeal to speculation and conjecture. Apart from such speculation, the evidentiary weight of the record was so slight as to make its exclusion insignificant.

2. The defendant introduced in evidence an array of mug shots from which two of the victims had identified the defendant and which, as unobjected to testimony indicated, were taken from police files. The judge properly denied the defendant's request that the front and side views, which made up each of the mug shots, be separated so that he might show the jury only the front view of each photograph. The defendant's purpose was to attack the photographic identifications by the victims on the ground that they were based on a suggestive array. Whatever suggestiveness or lack of suggestiveness there was in the array inhered in the total array as shown to the victims, and a fair assessment by the jury of its suggestiveness required that it be shown to them without modification: (The photographs were otherwise sanitized.) Commonwealth v. McCants, 3 Mass. App. Ct. 596, 597-598 (1975).

Judgments affirmed.