353 Mass. 228

October 2, 1967 - November 2, 1967

Suffolk County


A defendant in a criminal case who was a fugitive from justice at the time of the argument before this court on his bill of exceptions waived his appellate rights and was defaulted without consideration of his exceptions or of the argument made on his behalf.

INDICTMENT found and returned in the Superior Court on January 9, 1959.

The case was heard by Goldberg, J.

Reuben Goodman (Ronald J. Chisholm with him) for the defendant.

Murray P. Reiser, Assistant District Attorney (Roger M. Carey, Legal Assistant to the District Attorney, with him), for the Commonwealth.

WILKINS, C.J. On April 15, 1965, the defendant was found guilty by a judge in the Superior Court on an indictment charging larceny of more than $100, and was placed on probation. Previously, on April 6, 1965, he had filed a plea in bar and a motion to dismiss, both based on the ground that he had not been given a speedy trial. These were denied, and a bill of exceptions was filed by his counsel. At some time after April 15, 1965, the exact date not clear from the record, the defendant left the Commonwealth. His whereabouts, as stated by his counsel at the arguments before us, are unknown. Nevertheless it is sought to press the exceptions. This right cannot be permitted to a fugitive from justice. By his voluntary act, which renders him unavailable to await the decision of the court, he has waived appellate rights. There is no occasion for us to consider his exceptions or any arguments now made on his behalf. This is the necessary consequence of our cases, a result which we

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fully approve. Commonwealth v. Andrews, 97 Mass. 543. Commonwealth v. Dowdican's Bail, 115 Mass. 133, 137. Henderson v. Henderson, 329 Mass. 257, 258. Ellis v. Doherty, 334 Mass. 466, 468. See Smith v. United States, 94 U.S. 97; Allen v. Georgia, 166 U.S. 138. See also 69 A. L. R. 2d 824, 848.

Defendant defaulted.

Exceptions overruled.