361 Mass. 872

April 3, 1972

Sloane, formerly treasurer of a State hospital, was indicted for larceny of $671.67 from the Commonwealth. He appeals under G. L. c. 278, Sections 33A-33G, from a new conviction (on a second trial), by a judge sitting without jury. See Commonwealth v. Sloane, 357 Mass. 778, 779. There is no merit in Sloane's assignments of error. A trial judge is not bound to make a finding of not guilty (equivalent to a directed verdict) on the Commonwealth's opening. Commonwealth v. Hartford, 346 Mass. 482, 489. The judge properly admitted in evidence an answer to a police inquiry given by Sloane (after being warned of his right to remain silent) that "he had done nothing wrong, if he did do anything wrong, he would deny it, anyway." This equivocal statement was cumulative of other testimony to which no exception was saved. See Commonwealth v. Hamel, 264 Mass. 564, 569; Commonwealth v. Curry, 341 Mass. 50, 54-55. It was proper to admit the answer to a question concerning reimbursement by the Commonwealth to the payee of a Commonwealth check, the proceeds of which were allegedly stolen by Sloane. The subject was originally opened by Sloane's counsel on cross-examination. The answer to a later question during redirect examination of the payee was both obscure and harmless in content. There was evidence which, if believed, warranted findings that a check, drawn by the Commonwealth and payable to one Hayward (who had not endorsed or received it), had been cashed from canteen funds handled by a State hospital; that the check had been deposited by Sloane in the canteen's bank account; and that Sloane had been in charge of the account and the canteen funds during the crucial period. After the Commonwealth rested, the judge warrantably denied a motion, not later renewed, that Sloane be found not guilty. See Commonwealth v. Bader, 285 Mass. 574, 575-576; Commonwealth v. Lussier, 333 Mass. 83, 88. There was no fatal variance between the indictment and the proof. The Commonwealth could be found to have had a sufficient property or possessory interest in the check or its proceeds to warrant a conviction. See G. L. c. 278, Section 9. See Commonwealth v. Kiernan, 348 Mass. 29, 50-51, cert. den. 380 U.S. 913. See also Commonwealth v. Ladetto, 349 Mass. 237, 247.

Judgment affirmed.