2 Mass. App. Ct. 814 | Mass. App. Ct. | 1974
After trial before a judge sitting without jury in proceedings conducted under G. L. c. 278, §§ 33A-33G, the defendant was convicted of knowingly and intentionally distributing a controlled substance, heroin. G. L. c. 94C, § 32, as inserted by St. 1971, c. 1071, § 1. The only error assigned by the defendant is the denial of his motion for a finding of not guilty at the conclusion of the Commonwealth’s case. The Commonwealth does not contend that the defendant personally made physical delivery of the heroin to the undercover officer but argues that the defendant’s participation in the entire transaction warrants his conviction as an accessory to the commission of the substantive offense. A defendant may be convicted as a principal on proof that he counselled, hired, or otherwise procured the crime to be committed. G. L. c. 274, § 2, as amended by St. 1968, c. 206, § 1. Commonwealth v. Perry, 357 Mass. 149, 151 (1970). Although the defendant’s knowledge and presence alone do not constitute “counselling, hiring, or . . . procuring” (see Commonwealth v. DiStasio, 297 Mass. 347, 364 [1937]; Commonwealth v. Spina, 1 Mass. App. Ct. 805 [1973]), his association with a criminal venture coupled with any significant participation in it will support a conviction. Commonwealth v. French, 357 Mass. 356, 391 (1970), and cases cited. Commonwealth v. Morrow, 363 Mass. 601, 608-609 (1973). Viewing the evidence most favorable to the Commonwealth (Commonwealth v. Burns, 362 Mass. 875 [1972]), we hold that it was sufficient to warrant conviction. The defendant’s invitation to
Judgment affirmed.