319 Mass. 462 | Mass. | 1946
A judge of the Superior Court sitting without a jury found the defendant guilty on three counts of an indictment under G. L. (Ter. Ed.) c. 265, § 23, charging him with carnal abuse of a female child. At the same time the judge found the defendant not guilty under an indictment charging him with open and gross lewdness and lascivious behavior in the presence of the same child during the three months next before the finding of the indictment. G. L. (Ter. Ed.) c. 272, § 16.
The defendant contends that the findings of guilty on the indictment for carnal abuse cannot stand in view of the not guilty finding on the other indictment. But this question is not presented on this record. The case comes here on a bill of exceptions which states that “the defendant, feeling aggrieved by the court’s finding of guilty under counts 1, 3 and 4'of indictment 31316, and claiming that these findings are inconsistent with the court’s finding of . . . not
It is assumed that in appropriate instances this court has and will exercise the power to set aside a verdict or finding in order to prevent a miscarriage of justice when a question affecting substantial rights has not been properly raised by exception at the trial. Commonwealth v. Dascalakis, 246 Mass. 12, 25. Commonwealth v. McDonald, 264 Mass. 324, 336. An examination of the record here discloses no reason for the exercise of that power.
Exceptions overruled.