Opinion
January 11, 1982.
Frank R. Herrmann for the defendant.
John T. McDonough, Assistant District Attorney, for the Commonwealth.
The defendant has appealed from his conviction on an indictment charging rape of a child under the age of sixteen (G.L.c. 265, § 23) and presents two issues. There was no error.
1. Two police officers had been dispatched to the defendant's residence to see if the defendant and the victim were there. Both officers had searched the premises but only one testified at trial. In his testimony that officer stated that his partner had searched one of the rooms of the defendant's small apartment and then said, "There is no one here." The motion to strike should have been allowed. Commonwealth v. Ricker, 131 Mass. 581 (1881). Commonwealth v. Howard, 8 Mass. App. Ct. 318, 320 (1979). Even without this testimony, however, the evidence was to the same effect. The only reasonable inference that the jury could have drawn from the testimony that the officers had left the apartment without seeing or talking to the defendant or the victim was that neither was there. The error was harmless. See Power Serv. Supply Inc. v. E.W. Wiggins Airways, Inc., 9 Mass. App. Ct. 122, 129-130 (1980).
2. The judge charged the jury on alibi evidence and at the outset referred to alibi as a defense, saying, "The legal name for this defense is alibi and it's a legitimate and a proper defense." He also told the jury it should be "scrutinized carefully." These words, which were characterized as "unwise" and disapproved in Commonwealth v. McLeod, 367 Mass. 500, 502 (1975), should not have been used. The judge, however, told the jury "to bear in mind that an alibi may be the only refuge of the innocent." Id. The judge also, partly in his own words, gave the charge suggested in McLeod, at 502 n. 1. We are of opinion that the charge could not have been understood by the jury as shifting any burden of proof to the defendant and was thus not erroneous. Contrast Commonwealth v. Bowden, 379 Mass. 472, 480-482 (1980); Commonwealth v. Cobb, 5 Mass. App. Ct. 421, 422-424 (1977).
Judgment affirmed.