Commonwealth v. Spencer

The defendant was convicted by a Superior Court jury of assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, and assault and battery. On appeal, the defendant claims (1) that the trial judge erred by giving a so-called “missing witness” instruction; (2) that the judge’s instruction on alibi created confusion as to the burden of proof; and (3) that the judge’s instruction defining a “dangerous weapon” created a presumption against -the defendant. Because we agree with the defendant that a missing witness instruction should not have been given, we reverse…