Home COMMONWEALTH vs. JOHN ROBERTS.

372 Mass. 868

May 4, 1977

The defendant appeals from the denial, by a single justice of this court, of his petition for stay of execution of sentence. G. L. c. 279, Section 4. The trial judge and a single justice of the Appeals Court both denied similar motions for a stay of execution of sentence. The defendant did not appeal from the denial of his motion by the Appeals Court single justice to a panel of that court as provided in Appeals Court Rule 2:01, as amended. 3 Mass. App. Ct. 801 (1975). The appropriate procedure after denial of a motion by a single justice of that court is to appeal to an Appeals Court panel rather than to a single justice of this court. There is no review in this court of an interlocutory order which is not reported to us by a single justice. See Cappadona v. Riverside 400 Function Room, Inc., 371 Mass. 805 (1977). Since the parties have filed briefs we express our views. Wellesley College v. Attorney Gen., 313 Mass. 722 , 731 (1943). The defendant was convicted of deriving support from, or sharing the earnings of, a prostitute. G. L. c. 272, Section 7. The defendant argues that the statute is unconstitutional on due process and equal protection grounds. He also argues that his requested instructions on "accomplice" testimony should have been granted by the trial judge. The statute has been held "plainly constitutional." Commonwealth v. Peretz, 212 Mass. 253 , 256 (1912). The charge, in the abstract, appears to inform the jury correctly as to the law of this. See Commonwealth v. Flynn, 362 Mass. 455 , 467 (1972). Nevertheless, the defendant argues that the facts of his case require reconsideration of both issues. Since the record and transcript are not before us we cannot decide whether or not the law has been unconstitutionally or incorrectly applied in this case. On the limited record before us, without prejudging in any way the merits of the defendant's full appeal, we cannot say that the "reasonable likelihood of success" is so clear as to warrant a finding that the single justice of this court abused his discretion. DiPietro v. Commonwealth, 369 Mass. 964 (1976). We find no abuse of discretion as that term denotes judicial action "that no conscientious judge, acting intelligently, could honestly have taken." Davis v. Boston Elevated Ry., 235 Mass. 482 , 502 (1920).

Judgment affirmed.

Home ALFRED PUOPOLO, petitioner.

372 Mass. 868

May 13, 1977

On January 26, 1977, in proceedings in a District Court on a fugitive from justice warrant, the petitioner was found guilty of some crime not charged and was sentenced to three months in a house of correction. He appealed and was released on bail. He was then taken into custody on a warrant of the Governor of the Commonwealth for extradition to the State of Texas to face an indictment by a grand jury for arson, and on February 2, 1977.

Page 869

he filed a petition for a writ of habeas corpus. On February 24, 1977, a judge of the Superior Court dismissed the District Court case without objection, denied the petition for a writ of habeas corpus, and ordered that the petitioner be released on cash bail pending appeal from the denial of the writ of habeas corpus. We transferred his appeal to this court on our own motion. The case was argued before us on May 6, 1977, and on May 9, 1977, we issued an order revoking the petitioner's bail and directing that he be remanded to custody under the warrant of the Governor for rendition to the State of Texas. We now affirm the judgment denying the writ. Contrary to the petitioner's sole contention on appeal, there is no need for a further probable cause hearing. In Ierardi v. Gunter, 528 F.2d 929, 931 (1st Cir. 1976), the court said that "Massachusetts may credit an arrest warrant shown to have issued upon a finding of probable cause in Florida just as it would credit a Florida indictment." Here we credit the Texas indictment accompanying the demand for rendition. See Tex. Code Crim. Proc. Ann. arts. 20.19-20.22 (Vernon 1966). No question as to bail is before us. Cf. Selmon, petitioner, 365 Mass. 632 (1974).

Judgment affirmed.