A Berkshire County grand jury on October 4, 1978, indicted the defendant Edward H. Hughes on two counts of assault by means of a dangerous weapon, to wit, a pistol (G. L. c. 265, Section 15B). The charges arose from an incident in Otis, Massachusetts, on June 21, 1978, when the defendant allegedly assaulted John Joyner and Leonard Terranova by firing two rounds through the front windshield of a truck in which the men were sitting. [Note 1] Inspection of a recovered bullet suggested that it came from either a .38 caliber or .357 magnum handgun. On June 22, 1978, the Otis chief of police asked the defendant whether he owned either kind of gun and, if so, whether he would surrender it voluntarily for examination. The defendant produced a .357 magnum pistol. Tests showed it had not been recently fired. The defendant refused consent to a search of his car, which was impounded at the time, for any additional weapon. However, the police on June 22 obtained a warrant for search of the car for "[e]ither a 38 calibre or 357 Magnum pistol and spent shells from either." Police executed the warrant that day and made the return: "Nothing pertaining to warrant found."
The defendant pleaded not guilty on October 10, 1978, and was released on personal recognizance. Customary defense motions followed. On March 28, 1979, the Commonwealth filed a "Motion to Order Defendant to Produce Weapon" for ballistics examination. The weapon was described in the motion as a "Smith and Wesson .38 Caliber Revolver Serial Number J354354." An accompanying affidavit stated that the defendant had registered the revolver with the firearms identification division of the Department of Public Safety. This was apparently under G. L. c. 140, Section 128B; and we note that pursuant to Section 129C such a registrant must report to the division any sale, gift, or other transfer of possession of the weapon; failure to do so is criminally punishable (G. L. c. 269, Section 10 [h]). The motion was allowed after hearing: the defendant was ordered to produce the described revolver within ten days; the Commonwealth was ordered to give the defendant a copy of any ballistics test results within ten days of receiving them; and "[a]ny question concerning the admissibility of evidence emanating from the allowance of this motion is deferred to the trial justice, if appropriately raised."
The defendant attempted to secure immediate review of the order by applying to a single justice of this court to exercise our supervisory power, G. L. c. 211, Sections 3 and 4A, claiming that the judge's order, if enforced, would violate his constitutional privilege against self-incrimination. [Note 2] The single justice denied the application on July 6, 1979, observing that regular review could be had on an appeal from an adjudication of contempt for failure to comply with the order, or, if the indictments went to trial, then on appeal from a judgment of conviction, with error claimed in the trial judge's refusal to exclude the gun "and all evidence derived from the production thereof."
On July 27, 1979, the Commonwealth demanded by registered letter that the defendant turn over the gun within twenty-four hours or face contempt charges. On the defendant's failure to reply, the Commonwealth on August 21, 1979, instituted proceedings for contempt which were brought to hearing on August 30. A representative of the firearms identification division testified that on March 23, 1976 (twenty-seven months before the alleged assault) the defendant had registered the gun described, and had not since then filed any report of transfer of the gun. In his findings, ruling, and order of August 30, 1979, the judge found that the defendant had purchased the revolver on March 23, 1976, and had not filed any further report. The defendant was held in contempt but given until 3 P.M. that day to produce the weapon or show present inability to do so, otherwise he would be incarcerated until purgation or further order of the court.