Home WILLIAM HERBITS vs. HIGH-SPEED PROCESS PRINTING CORPORATION & others.

358 Mass. 817

February 2, 1971

This matter is before us on appeals by the defendants from an interlocutory decree confirming a master's report and a final decree based thereon. In essence, the plaintiff in a bill in equity, as twice amended, alleged that as a stockholder of the defendant High-Speed Process Printing Corporation he was aggrieved by various fraudulent transfers of corporate property in which the individual defendants indulged and by their improper issue of further capital stock in order to dilute his holding. The master filed a lengthy, careful and comprehensive report. Although a request was made by the defendants for a summary of the evidence, the master, under Rule 90 of the Superior Court (1954), declined to make one since he was not furnished by the defendants "with a transcript of so much of the evidence taken by the stenographer" as was material to determine whether the evidence was sufficient in law to support his findings of fact. This action was proper since we can find no error in the master's construction of the objections filed by the defendants as raising questions of the sufficiency of the evidence rather than questions of law dependent on unreported evidence. Since we do not have the evidence before us, the master's ultimate findings are binding on us "unless the subsidiary facts stated are sufficient in themselves to demonstrate that the ultimate findings could not be justified upon any evidence that the master might have received." Dodge v. Anna Jaques Hosp. 301 Mass. 431 , 435. Madigan v. McCann, 346 Mass. 62 , 64. A review of the master's report indicates no reason to feel that his ultimate findings were not fully supported by the evidence he heard. The judge confirmed the report and entered an elaborate decree reflecting and implementing the findings of the master. The decree did not go beyond his powers in equity to render complete and effective relief. Nigro v. Conti, 319 Mass. 480 , 484. Laine v. Aarnio, 265 Mass. 374 , 377. There was no error in the orders and decrees filed in conjunction with the receivership proceedings which were brought on the petition of the plaintiff in order to implement the judge's final decree.

Interlocutory decrees affirmed.

Final decrees affirmed with costs of appeal to the plaintiff.

Home COMMONWEALTH vs. PATRICK E. FLAHERTY (and fourteen companion cases [Note 1]).

358 Mass. 817

February 3, 1971

The defendants appeal under G. L. c. 278, Sections 33A-33G, from their several convictions at a trial without jury of (1) unlawful possession of a narcotic drug, G. L. c. 94, Section 205; (2) being present where a narcotic drug is illegally kept or deposited, G. L. c. 94, Section 213A; and (3) growing a narcotic drug, G. L. c. 94, Section 198A. Police searched a second floor apartment in the town of Sunderland pursuant to a valid search warrant and found quantities of marihuana in two of the four bedrooms in the apartment and nine lumps of green hashish in the pocket of an unidentified jacket hanging over a chair in the hallway. All of the five defendants were located in the hallway and kitchen of the apartment when the police entered. The prosecution's case rests on the following evidence. A tenant in a first floor apartment who had been living in the apartment building for about a year before the defendants' arrest on February 6, 1969, testified that during that period of

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time he had seen the defendants "several times . . . entering, leaving, or about the premises" but that he had never visited them "in any area of the house." He occasionally "heard knocking" at the door leading up to the upstairs apartment in question, but he "didn't see them knock." There was testimony that a valise bearing the name Patrick Flaherty was found in one of the bedrooms. However, there was no evidence that Flaherty or any of the other defendants rented the apartment, or that they lived there or spent any considerable amount of time there, or that they had control over the apartment or its contents. The Commonwealth's case against the defendants falls far short of "proof that the accused was `present where [he knew] a narcotic drug . . . [was] illegally kept or deposited.'" Commonwealth v. Buckley, 354 Mass. 508 , 512. Commonwealth v. Tirella, 356 Mass. 271 . "It is essential . . . that the circumstances taken as a whole, and giving them their reasonable and just weight, and no more, should to a moral certainty exclude every other hypothesis." Commonwealth v. Webster, 5 Cush. 295 , 319. The evidence does not exclude to a moral certainty that the defendants were casual visitors to the apartment and knew nothing of the narcotic drugs found in the bedrooms and in the pocket of a jacket whose ownership was not established.

Judgments reversed.

Findings set aside.


FOOTNOTES

[Note 1] Of the companion cases two are against Patrick E. Flaherty, three are against Harry J. Gold, three are against George H. Moser, three are against Gail M. Flaherty, and three are against Brenda L. Gold.