Home COMMONWEALTH vs. FRANCIS T. MARTORANO.

355 Mass. 790

January 30, 1969

At a trial under G. L. c. 278, Sections 33A-33G, of an indictment charging murder in the second degree of Maximiano Barretto, the defendant Martorano was found guilty of manslaughter. Of the argued assigned errors only a few merit even summary comment. Whether to propound a question to prospective jurors on the hypothesis that the defendant might not take the stand was in the discretion of the judge and not matter of right. G. L. c. 234, Section 28. Commonwealth v. Taylor, 327 Mass. 641 , 647. See Commonwealth v. Kiernan, 348 Mass. 29 , 35-36. The evidence showed that on June 17, 1967, shortly after midnight, a series of arguments and fights involving the deceased and two men other than the defendant took place in the Ebbtide, a nightclub in Revere. The defendant was restrained from participating. Shortly thereafter the three men and the defendant went to a nearby parking lot where they "squared off." Out of a welter of conflicting testimony the jury could find that the defendant drew a pistol and fired two bullets at Barretto, killing him. Malice could be inferred from the act. Commonwealth v. Young, 326 Mass. 597 , 600. The successive motions for a directed verdict were rightly denied. On another version of the evidence, if believed, a verdict of manslaughter was permissible. The defendant did not request the judge to rule that it was not. The issue was properly left to the jury. Commonwealth v. Kendrick, 351 Mass. 203 , The judge's charge, though general, was complete and correct in all essentials including manslaughter. This being so, he was not required to charge on any "particular possible states of facts" or to frame his instructions in a form requested by counsel. Commonwealth v. Payne, 307 Mass. 56 , 58. Commonwealth v. Rogers, 351 Mass. 522 , 532. No error has been shown in the rulings on evidence.

Judgment affirmed.

Home FIORI MANZI'S CASE.

355 Mass. 790

January 30, 1969

The reviewing board, having adopted the findings and decision of the single member, found that the employee, whose duties during the hours of 11 P.M. to 7 A.M. were to sweep up material and put it into a truck and take the truck by elevator from the upper floors to the first floor of the employer's building, sustained injuries which arose out of and in the course of his employment on December 30, 1965, when the elevator, which the employee entered on the fourth floor, "overshot the first floor" and dropped into the pit. Fairly read, the report of the board shows compliance with G. L. c. 152, Section 8. The findings on all issues are supported by the evidence which is reported in full. The numerous exceptions to

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rulings on evidence, properly preserved by the insurer for review, have been considered. No reversible error appears. Recommittal for any reason is not required.

Decree affirmed.

Costs of appeal are to be determined by the single justice.