6 Mass. App. Ct. 846 | Mass. App. Ct. | 1978
1. The question of consent is the only issue in this appeal which warrants more than summary treatment. See and compare Commonwealth v. Reilly, 5 Mass. App. Ct. 435, 437 (1977). As all the victims of the various offenses for which the defendant was indicted and convicted were under the age of eighteen (see G. L. c. 4, § 7, Forty-eighth through Fifty-first, as appearing in St. 1973, c. 925, § 1), it is not necessary for us to reach the question whether the acts were committed in private. Accordingly, the language in Commonwealth v. Balthazar, 366 Mass. 298, n302 (1974), relied on by the defendant, is inapposite. Cf. Commonwealth v. Gallant, 373 Mass. 577, 585-586 & n.9 (1977). We agree with the trial judge that "[m]inors are presumed to be incapable of giving consent to unnatural and lascivious acts, in much the same manner that [certain] minors are unable to consent to intercourse.” See Commonwealth v. Ellis, 321 Mass. 669 (1947). Cf. Commonwealth v. Gallant, supra at 582-583, and cases cited. 2. The defendant’s assignment of error contesting the constitutionality of G. L. c. 272, § 35A, has been decided adversely to him in Commonwealth v. Duarte, 2 Mass. App. Ct. 909 (1974). See also Commonwealth v. Gallant, supra at 585-587, and cases cited. 3. The defendant’s exception to the denial of his motion to suppress is utterly devoid of merit. The judge specifically found that the "cursory search of the defendant’s apartment revealed no evidence concerning the commission of any crime.” We believe that finding is amply justified by the facts shown on this record. See Com
Judgments affirmed.