372 Mass. 411

March 8, 1977 - April 15, 1977

Suffolk County


For the reasons stated in Commonwealth v. Jones, ante, 403 (1977), the application of G. L. c. 278, Section 7, to a defendant in a prosecution under c. 269, Section 10 (a), was not unconstitutional and there was no error in an instruction to the jury which was substantially in the language of c. 278, Section 7. [412]

COMPLAINT received and sworn to in the Municipal Court of the Dorchester District on April 22, 1975.

Upon appeal to the Superior Court the case was tried before Steele, J., a District Court judge sitting under statutory authority.

After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Robert S. Potters for the defendant.

Joseph E. Coffey, Assistant District Attorney, for the Commonwealth.

BRAUCHER, J. This case was argued with Commonwealth v. Jones, ante, 403 (1977), and involves substantially the same issues. On the authority of that decision, we affirm the conviction of the defendant for having a loaded firearm under his control in an automobile in violation of G. L. c. 269, Section 10 (a).

There was evidence that on April 19, 1975, two police officers stopped a car in which the defendant was a passenger, and that the defendant reached into his waistband, pulled out a loaded revolver, and put it under the seat. The defendant testified, but there was no evidence with respect to a license. The judge instructed the jury substantially in

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the language of G. L. c. 278, Section 7, adding, "A presumption is a rule of law which compels you to reach a certain conclusion in the absence of evidence to the contrary." The defendant was convicted and sentenced to one year in a house of correction, and he appealed pursuant to G. L. c. 278, Sections 33A-33G. Execution of the sentence was stayed pending appeal of the Jones case, and we transferred the case here on our own motion.

The defendant's motion for a directed verdict on the ground that G. L. c. 278, Section 7, is unconstitutional was properly denied. Commonwealth v. Jones, supra. The charge to the jury may have been confusing, since no issue with respect to a license was before the jury and there was no need for them to reach any conclusion on any such issue. But there was no error affecting substantial rights.

Judgment affirmed.