COMMONWEALTH vs. CHARLES L. O'NEIL.

COMMONWEALTH vs. CHARLES L. O'NEIL.

3 Mass. App. Ct. 761

June 10, 1975

The defendant was indicted for (1) assault with intent to commit a robbery, while armed, and (2) assault with a dangerous weapon (an automobile) on one Marron. The first indictment was dismissed (by agreement) in open court, and the defendant was thereupon tried on the second indictment. It was open to the jury to find on the evidence that an assault occurred as the defendant drove an automobile at Marron while effecting the getaway of three individuals (one of them armed with a revolver) who had just fled a nearby variety store where an incident had occurred which had been punctuated by screams of the proprietor and his wife and which resulted in the proprietor's summoning the police. If (which we do not decide) there was anything in the portion of the charge excepted to which improperly characterized the nature

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of the incident as a robbery, the defendant was not harmed. The judge explicitly instructed the jury in the same portion of the charge that the defendant "[was] . . . not to be found guilty as to what went on before at the variety store." Compare Commonwealth v. Scott, 355 Mass. 471 , 475-476 (1969).

Exceptions overruled.