Opinion
October 30, 1968.
Lester M. Gold for the defendant.
Foster Furcolo, Assistant District Attorney ( Ruth I. Abrams, Assistant District Attorney, with him), for the Commonwealth.
The defendant was convicted of armed robbery. His bill of exceptions fails to show error. He contends that the judge erred when, charging on the issue of alibi, he read from Chief Justice Shaw's opinion in Commonwealth v. Webster, 5 Cush. 295, 319 (1850), and described him as "one of the great chief justices of the Supreme Court of this Commonwealth." Only this fragment of the charge, lifted from the context, is included in the bill of exceptions. The impression created by the charge as a whole is the test. Commonwealth v. Aronson, 330 Mass. 453, 457. Commonwealth v. Greenberg, 339 Mass. 557, 585. Commonwealth v. Sullivan, ante, 598, 607. There was no error in denying the defendant's motion to poll the jury. Commonwealth v. Roby, 12 Pick. 496, 512-515. Commonwealth v. Costley, 118 Mass. 1, 28. Commonwealth v. Goldenberg, 338 Mass. 377, 386. He does not argue that he had an absolute right, but merely that it was a matter of discretion. In order to show error, he relies upon numerous alleged facts which are not in the record and which we, therefore, cannot consider. There was no abuse of discretion.
Exceptions overruled.