7 Mass. App. Ct. 858 | Mass. App. Ct. | 1979
The judge’s erroneous instruction to the effect that the defendant’s bomb would not fall within the prohibition of G. L. c. 148, § 35, if it were not of a "high explosive” variety was unduly favorable to the defendant, who could not have been prejudiced by the error. There is nothing to the contention that the erroneous ruling became the law of the case, requiring that the evidence conform to the requirements of the instruction rather than those of the statute. See Commonwealth v. David, 365 Mass. 47, 55-56 (1974). Compare Freeman v. Robinson, 238 Mass. 449, 452 (1921); Commonwealth v. Ackers, 343 Mass. 63, 68 (1961). Contrast Commonwealth v. Peach, 239 Mass. 575, 581 (1921),
Judgment affirmed.