COMMONWEALTH vs. PAUL W. BENDERS.

BRAUCHER, J. The defendant was convicted of assault and battery by means of a dangerous weapon. The case is here on the defendant's exceptions (1) to a portion of the charge to the jury and (2) to the denial of his requests for supplementary instructions to the jury. The other exceptions in the defendant's bill were not argued on appeal and are deemed waived. S. J. C. Rule 1:13, 351 Mass. 738 .

We summarize the Commonwealth's evidence. The victim, Donald H. Anderson, a book and variety store owner,

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testified that he saw the defendant talking with one of his employees in his store and said, "Come on boy. Get out of there." The defendant, angered at what he considered a racial remark, came out to the hall with two others and an argument ensued. The victim told them to get out. They did, taking candy and ice cream on the way without paying. The victim pursued them out of the store and up the street, but stopped when he saw one of the defendant's companions, not the defendant, with a bottle. The victim was then hit in the ribs by a coke can and in the leg by an empty soda bottle. A policeman, while patroling in a car, noticed the victim fallen against a store window with three youths "closing in on him." As the car pulled up, two youths ran in one direction, while one ran in the other direction. Returning from a futile chase of one of the youths, the policeman apprehended the defendant, who was moving quickly toward him. The defendant offered no resistance and denied throwing anything. He was brought back to where the victim was sitting and the victim identified him. Some candy and ice cream were in his possession.

The defendant's testimony was for the most part consistent with the above summary. He testified, however, that one of his companions, Donald Waters, persisted in arguing when the defendant left the store with the third youth, Raymond Morris. Unable to catch Waters, the victim grabbed the defendant and threw him to the ground, causing him to drop a coat. The victim then chased Morris. The defendant got up and ran so as to get in front of the victim, and he and Morris told Waters to leave the victim alone. After Waters hit the victim with the bottle, the defendant ran out to the street to retrieve his coat. The defendant did not run away, but walked back to the victim and the policeman.

We set forth in the margin the portion of the charge to the jury relating to joint venture. [Note 1] At the close of the

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charge, the defendant excepted to the judge's refusal to give a supplementary instruction that "mere presence is not enough," that they must find that the defendant "was actively engaged in a common enterprise" to commit assault and battery by means of a dangerous weapon. [Note 2] The defendant also excepted to that portion of the charge stating that it was a question whether the jury believed the Commonwealth's evidence or the defendant's evidence. [Note 3] The defendant requested a supplementary instruction on this point, [Note 4] and excepted to the judge's refusal to give it.

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Rule 71 of the Superior Court (1954) requires that requests for instructions shall be made in writing before the closing arguments unless special leave is given to present them later. Failure to obtain special leave, however, is not fatal in the present circumstances. "The assumption may be indulged that the salient points of the case will be adequately covered by the charge; but if at its close, substantial omissions or errors are observed, the attention of the judge may be drawn to them, and upon refusal or neglect to give correct and adequate instructions upon important factors in the case, the right to exceptions thus adequately protects the rights of the parties." Commonwealth v. Hassan, 235 Mass. 26, 32. Commonwealth v. Moore, 323 Mass. 70, 77.

The question before us is, therefore, whether there was a substantial error or omission in the charge. If a salient point of the case was not adequately covered and the attention of the judge was called to that fact at the close of the charge, the exceptions must be sustained. The test of the charge is the impression created by it as a whole, and much must be left to the discretion of the judge. Commonwealth v. Pinnick, 354 Mass. 13, 15. Commonwealth v. Kelley, 359 Mass. 77, 92. By stipulation of the parties the record has been supplemented by the transcript of the entire charge, and we have considered it in its entirety. We are not required to consider whether isolated portions of the charge were adequate, or whether the instructions requested by the defendant were correct statements of law.

The issue of joint venture appears to have been the principal contested issue in the case. It was undisputed that the defendant and two others had an argument with the victim in the victim's store, that they stole candy and ice cream, and that the victim pursued them. There was no claim that the defendant threw anything at the victim, but no denial that the defendant was present when one of his companions committed the assault. In these circumstances it was essential to conviction that the defendant and his companions were jointly engaged in the commission

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of the assault and that the defendant associated himself with that venture and participated to some extent in the commission of that offence. Commonwealth v. Stasiun, 349 Mass. 38, 49. There was evidence sufficient to warrant the jury in inferring the necessary intent and participation. See Commonwealth v. Medeiros, 354 Mass. 193, 198, and cases cited; Commonwealth v. Pina, 360 Mass. 139, 143, and cases cited. But mere presence at the commission of the wrongful act and even failure to take affirmative steps to prevent it do not render a person liable as a participant. Brown v. Perkins, 1 Allen, 89, 98. See United States v. Peoni, 100 F. 2d 401, 402 (2d Cir.); Bailey v. United States, 416 F. 2d 1110, 1113 (D.C. Cir.), and cases cited; United States v. Kelton, 446 F. 2d 669, 671 (8th Cir.); People v. Tillman, 130 Ill. App. 2d 743, 750-751; Jones v. Commonwealth, 208 Va. 370, 373-374. The distinction between participation and mere presence was never clearly presented to the jury. The emphasis in the charge was on disengagement from an established joint venture, rather than on the necessity of establishing the joint venture. The jury may well have understood, erroneously, that the critical joint venture was a group theft from the store instead of a group assault on the victim. Such a misunderstanding was also encouraged by the judge's use of an example involving a lookout and a getaway driver in a bank robbery. Likewise, the judge's emphasis on the choice between believing the Commonwealth and believing the defendant tended to divert attention from the defendant's principal contention, that he never consented to or participated in an assault and battery with a dangerous weapon. The jury could have believed all of the testimony on behalf of the Commonwealth and still accepted that contention.

Thus the charge as a whole was substantially misleading as to a salient point of the case. The attention of the judge was drawn to that fact at the close of the charge, and he refused to give adequate instructions on the point. The exceptions must therefore be sustained. Compare Commonwealth v. Aronson, 330 Mass. 453, 457; Commonwealth

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v. Greenberg, 339 Mass. 557, 585; Commonwealth v. Kelley, 359 Mass. 77, 92. See Bell v. Dorchester Theatre Co. 308 Mass. 118, 123-124.

Exceptions sustained.