Commonwealth v. McCombe

The defendant was indicted for assault with a dangerous weapon and rape. At trial the person named as the victim in both indictments testified that she had submitted to the defendant’s advances because he had threatened her with a knife. The jury convicted the defendant of rape but acquitted him on the indictment for assault. He has appealed (G. L. c. 278, §§ 33A-33H) from the denial of his motion for a new trial on the indictment for rape, claiming that he is entitled to a new trial on that indictment by reason of an inconsistency between the jury’s ver [843] diets on the two indictments. There was no error. 1. It is settled under our law that an inconsistency in a jury’s interpretation of the evidence offered in support of two indictments does not require a new trial of the one indictment on which the defendant is convicted. Commonwealth v. McCarthy, 348 Mass. 7, 14 (1964). Commonwealth v. Scott, 355 Mass. 471, 475 (1969). Commonwealth v. White, 363 Mass. 682, 684-685 (1973), and cases cited. A different result is reached when conviction on both indictments is a legal impossibility. See Commonwealth v. Has-kins, 128 Mass. 60, 61 (1880); Commonwealth v. Carson, 349 Mass. 430, 434-436 (1965). 2. It is not argued that the judge abused his discretion in denying the motion. The case was submitted on briefs. Susan Baronoff for the defendant. Lance J. Garth, Assistant District Attorney, for the Commonwealth. Order denying motion for new trial affirmed.