361 Mass. 860

March 1, 1972

This matter is before us on exception to the sustaining of the respondent's demurrer to Balakin's petition for a writ of error. He was found guilty by a jury of having been an accessory before the fact to the offence of confining one Elizabeth Constantine for the purpose of stealing from a bank. On appeal, the judgment was affirmed. Commonwealth v. Balakin, 356 Mass. 547. He contends that "as a matter of law and fact . . . it was error" for a judge of the Superior Court to "sentence him, without first sentencing the [p]rincipal." This contention is devoid of any merit. See Commonwealth v. DiStasio, 298 Mass. 562, 565; Commonwealth v. Bloomberg, 302 Mass. 349, 353; Commonwealth v. Benjamin, 358 Mass. 672, 680-681. We are unable to refrain from inferring that counsel representing the petitioner was fully aware of the barren basis for bringing this petition. It was originally brought by the petitioner acting pro se. Hopefully, perhaps the following comment in the opinion in the recent matter of Belbin v. Picard, 454 F. 2nd 202, 204 (1st Cir.), may serve a useful purpose. "[T]he right to counsel is not a right to demand that counsel seek what counsel knows, because of his legal wisdom, the prisoner is not entitled to. . . . Even as a supposed favor to the . . . [petitioner], counsel's readiness to seek . . . relief was misplaced."

Exceptions overruled.

Home COMMONWEALTH vs. ROBERT E. COUTURE (and a companion case [Note 1]).

361 Mass. 860

March 2, 1972

In these cases in which the defendants were found guilty on indictments charging violations of the narcotics laws, they now contend that the trial judge's findings were not based upon sufficient evidence. They ask that this court take notice of defence counsel's failure to move that the judge hearing the cases jury waived make findings of not guilty because of insufficient evidence. At the trial no objections were made nor exceptions taken. We do not look with favor on appeals of this nature. Commonwealth v. Foley, 358 Mass. 233, 236. Our views were fully stated in Commonwealth v. Underwood, 358 Mass. 506. These appeals come to us in the face of the clear statement of the cases and serve only to tax the time and energies of the court, the prosecution, and defence counsel alike. We recommend a careful reading of the Underwood case to appealing counsel. In any event, a review of the evidence, to which these

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defendants are not entitled, convinces us that the judge acted correctly in all respects.

Judgments affirmed.


[Note 1] Commonwealth vs. James J. Valentine.