355 Mass. 783

December 11, 1968

M and his wife seek (by petition dated November 10, 1966, and filed January 5, 1967) to adopt their infant granddaughter (born April 5, 1965), the child of their son (the father), aged twenty-one or twenty-two at the minor's birth, and of C (the mother), then fifteen years old, who had been married to the father a few months before the infant's birth. The father has given consent to the adoption. The mother now opposes it. Since August, 1965, the infant has been at the house of M and his wife. In November, 1965, the mother (with the father's consent) proposed adoption of the child by M and his wife. Neither the father nor the mother has ever contributed anything to the support of the child. The father has been in military service. He and the mother have become estranged. The mother has "wandered from job to job returning occasionally to live with her mother and . . . stepfather in a trailer." M and his wife own a substantial house with a separate room for the child. The evidence is not reported. The probate judge made a report of material facts on the basis of which the facts are stated. After consideration of the reports of the Division of Child Guardianship and of a guardian ad litem, he justifiably determined that the adoption was in the best interests of the child, and should be allowed despite the failure of the mother to give consent. Upon the report of material facts he could reasonably conclude that she had wilfully neglected to provide proper care and maintenance for the child for one year last preceding the date of the petition. See G. L. c. 210, Section 3 (as amended through St. 1955, c. 89; see St. 1963, c. 71, Section 1); Adoption of a Minor, 343 Mass. 292, 296-298. See also Petition for Revocation of a Decree for Adoption of a Minor, 345 Mass. 663, 671.

Decree affirmed.


355 Mass. 783

December 31, 1968

The defendant assigns as error the denial of his motions for a directed verdict and for a new trial. He was convicted on an indictment charging him with robbery primarily because of testimony of an alleged accomplice. The judge in his charge cautioned the jury with respect to this testimony stating, in addition to describing possible motives which might place it in question, "You can evaluate his testimony in the light of whatever motives you find he had for testifying a particular way." As was said in Commonwealth v. Binkiewicz, 339 Mass. 590, 591, "We cannot rule that the testimony was incredible as a matter of law, that the inconsistencies destroyed its significance, or that there was a lack of evidence which, if believed, would sustain a finding of guilty

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beyond a reasonable doubt." See Commonwealth v. Leger, 264 Mass. 217, 220; Commonwealth v. Beal, 314 Mass. 210, 231-232. There was no error in the denial of the motion for a directed verdict. The defendant argues that the presence in the dock during his trial of two alleged accomplices not then on trial created for him a risk of guilt by association and corroboration of otherwise uncorroborated testimony. He lodged no objection to the presence of the accomplices during the trial. He cannot now argue on a motion for a new trial a point he could have raised at the trial. Commonwealth v. Doyle, 323 Mass. 633, 638, and cases cited. Furthermore, the seating of the alleged accomplices where they were was not improper when their presence in court was necessary, and proper security required them to be where they were placed. We see no abuse of discretion in the denial of the motion for a new trial.

Judgment affirmed.