Home THE HOME INSURANCE COMPANY & another vs. FRANCES MARINO, administratrix, & another.

359 Mass. 748

April 13, 1971

The plaintiffs' bill of review of a decree in the Superior Court ordering them to pay a judgment obtained against then assured was dismissed in a final decree sustaining the defendants' answer in abatement and allowing the defendants' motion to dismiss. The decree of dismissal gives no grounds for the order but recites that the matter was heard upon argument of counsel. There was no request under G. L. c. 214, Section 23, for findings of material facts, and no voluntary findings of fact nor rulings of law were made. In these circumstances the only question open for review is whether the decree could have been entered on the pleadings. Poll-Parrot Beauty Salons, Inc. v. Gilchrist Co. 296 Mass. 451 , 452. See Home Ins. Co., petitioners, 357 Mass. 769 ; Bosanquet, petitioner, 357 Mass. 773 . The defendants' motion to dismiss (which we treat as a plea or demurrer on the grounds stated in the motion, Massa v. Stone, 346 Mass. 67 , 76) is based in part on the allegation "[t]hat there is no error of law apparent on the record sufficient to support the Bill of Review," and the judge in so concluding was correct.

Final decree affirmed with costs of appeal to the defendant.

Home COMMONWEALTH vs. JOHN DANIELS.

359 Mass. 748

April 29, 1971

The defendant, who was convicted in the Superior Court of armed robbery, has appealed under G. L. c. 278, Sections 33A-33G, alleging two errors on the part of the trial judge. He first complains of the exclusion by the judge of a question on cross-examination of the victim of the robbery designed to show that the witness had said nothing at a hearing in the District Court of the fact to which he testified in the Superior Court that the robber in the course of the robbery had sprayed him in the eyes. In the instant case there was no evidence that, at the District Court hearing, the witness was asked about this. Exclusion of the

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question was not an abuse of the discretion of the trial judge. Commonwealth v. Makarewicz, 333 Mass. 575 , 593-594. Cleary v. St. George, 335 Mass. 245 , 250. The second alleged error assigned is the denial of a motion for a new trial on the ground of newly discovered evidence based on confessions relative to the robbery made to the police by various individuals after the defendant had been sentenced. The trial judge listened at length to conflicting accounts of the circumstances which prompted the confessions, all of which were later retracted. He had them before him and they were inconsistent with each other to some extent, as well as with the events as recounted at the trial. In these circumstances he acted well within his discretion in denying the motion for a new trial upon consideration of all the evidence. Commonwealth v. Dascalakis, 246 Mass. 12 , 32-33. Sharpe, petitioner, 322 Mass. 441 , 445. Commonwealth v. Stout, 356 Mass. 237 , 242. Commonwealth v. Robertson, 357 Mass. 559 , 561-563.

Judgment affirmed.