Commonwealth v. Durham

Massachusetts Appeals Court

Commonwealth v. Durham

359 N.E.2d 661, 5 Mass. App. Ct. 777, 1977 Mass. App. LEXIS 733

Massachusetts Appeals Court·Decided February 9, 1977·Published

Opinion

Following a jury waived trial the defendant was convicted on two counts of an indictment which charged assault and battery with a dangerous weapon and on another indictment which charged him with deriving support and maintenance from the earnings of a prostitute. He has appealed pursuant to G. L. c. 278, §§ 33A-33G. As the assigned errors argued here are not based upon any exceptions taken at trial, they bring nothing to the court for review. Commonwealth v. Foley, 358 Mass. 233, 236 (1970). Commonwealth v. Durham, 358 Mass. 808 (1970). Commonwealth v. Cooper, 4 Mass. App. Ct. 782 (1976). The defendant has requested, however, that we examine the evidence to determine whether there “is a substantial risk of a miscarriage of justice” to justify setting aside the findings. Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). Commonwealth v. Borges, 2 Mass. App. Ct. 869, 870 (1974). We have reviewed the entire record and are of the opinion that there is nothing to suggest the possibility of any such risk in this case.

Judgments affirmed.

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Following a jury waived trial the defendant was convicted on two counts of an indictment which charged assault and battery with a dangerous weapon and on another indictment which charged him with deriving support and maintenance from the earnings of a prostitute. He has appealed pursuant to G. L. c. 278, §§ 33A-33G. As the assigned errors argued here are not based upon any exceptions taken at trial, they bring nothing to the court for review. Commonwealth v. Foley, 358 Mass. 233, 236 (1970). Commonwealth v. Durham, 358 Mass. 808 (1970). Commonwealth v. Cooper, 4 Mass. App. Ct. 782 (1976). The defendant has requested, however, that we examine the evidence to determine whether there “is a substantial risk of a miscarriage of justice” to justify setting aside the findings. Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). Commonwealth v. Borges, 2 Mass. App. Ct. 869, 870 (1974). We have reviewed the entire record and are of the opinion that there is nothing to suggest the possibility of any such risk in this case.

Judgments affirmed.

Commonwealth v. Durham, 359 N.E.2d 661, 5 Mass. App. Ct. 777, 1977 Mass. App. LEXIS 733 (Mass. Ct. App. 1977).

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Opinion

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