Home COMMONWEALTH vs. PAUL A. DESMOND (and a companion case between the same parties).

345 Mass. 774

February 27, 1963

Judgments affirmed. The defendant was convicted on indictments charging the unlawful possession of heroin (G. L. c. 94, Section 212) and the unlawful sale of heroin (G. L. c. 94, Section 212A). His first assignment of error relates to the refusal of the judge to instruct the jury as follows: "The mere fact that a witness is a government employee does not, of and by itself, entitle his testimony to a higher degree of credibility than another witness." This was not error. Although evidence of bias or interest on the part of a witness is properly received to affect his credibility, a special instruction relating thereto would be a comment on a fragment of the evidence which the judge is not required to give. The factors bearing upon credibility are to be weighed by the jury and by them alone. The defendant argues further, in his second assignment of error, that the judge not only refused to give the instruction requested, but tended in his charge to indorse the credibility of the government witness. Commonwealth v. Foran, 110 Mass. 179 . There was, however, no objection or exception to what the judge said in his charge; the defendant's single exception was to what the judge did not say. Consideration of the charge as a whole shows no reversible error.

Home MICHAEL HARITAS & another vs. MARY GOVEIA (and a companion case [Note 1]).

345 Mass. 774

February 28, 1963

Interlocutory decrees affirmed. Final decrees affirmed with double costs. The plaintiff in the first case, Haritas, leased a store from the defendant Goveia under the terms of a lease which provided that it was subject to assignment by the lessee on the consent of the defendant

Page 775

landlord which "consent . . . [was not to] be unreasonably withheld." Goveia refused to consent to such an assignment and the bill in the first case was brought and a master's hearing held thereon. Thereafter, following the filing of the master's report, a bill was brought by Goveia against Haritas seeking a stay in the proceedings in the first case and the abatement of a nuisance alleged to exist on the leased premises. Appeals are here from the final decrees entered in both cases and other orders and decrees therein. The plaintiff Haritas was forced to liquidate his business. There is no merit whatsoever in the contentions of Goveia. The master's report was explicit in finding (1) the proposed assignees of the lease to have been reputable persons of business experience and financial means; (2) the defendant Goveia to have been totally unreasonable in withholding her consent to the assignment of the lease; and (3) the damage which would be sustained by Haritas were he forced to liquidate his business. The final decrees drew accurately upon the findings by the master.


FOOTNOTES

[Note 1] The companion case is Mary Goveia & others vs. Michael Haritas & others.