Commonwealth v. Farro
Commonwealth v. Farro
Opinion of the Court
In November, 1975, the defendant was tried in the Superior Court on separate indictments charging him with violations of G. L. c. 265, §§ 17
In April, 1977, the defendant’s present counsel filed a motion for a new trial on both indictments on the ground that the italicized portion of the above quoted instruction had "improperly reversed the burden of proof, requiring [the defendant] to produce evidence of his innocence.” See In re Winship, 397 U.S. 358, 364 (1970); Mullaney v. Wilbur, 421 U.S. 684, 701-702 (1975); Hankerson v. North Carolina, 432 U.S. 233, 240-244 (1977); Commonwealth v. Rodriguez, 370 Mass. 684, 687-689 (1976); Commonwealth v. Johnson, 372 Mass. 185, 192 (1977); Commonwealth v. Greene, 372 Mass. 517, 518-519 (1977); Commonwealth v. Stokes, 374 Mass. 583, 590 (1978); Commonwealth v. Collins, 374 Mass. 596, 599 (1978). The trial judge having retired, the motion was heard by a different judge, who read the trial transcript and ruled adversely to the defendant on the question raised by the motion. That question is now before us on the defendant’s appeal (G. L. c. 278, § § 33A-33G) from the order denying the motion. Commonwealth v. McGrath, 361 Mass. 431, 435 n.2 (1972). Commonwealth v. Thompson, 362 Mass. 382, 384 n.2 (1972). Commonwealth v. Flemmi, 2 Mass. App. Ct. 533, 535 (1974).
Accordingly, there must be a new trial on both indictments.
So ordered.
"Whoever, being armed with a dangerous weapon, assaults another and robs, steals or takes from his person money or other property which may be the subject of larceny shall be punished____”
"Whoever, being armed with a dangerous weapon, enters a dwelling house, and while therein assaults another with intent to commit a felony shall be punished____”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.