COMMONWEALTH vs. JOSEPH F. LEPAGE (and three companion cases [Note 1]).

CUTTER, J. LePage and Eskedahl were each found guilty of the murder, in the first degree, of Dr. Dalton C. O'Brien and of armed assault with intent to rob him. There was a recommendation that sentence of death be not imposed. Each defendant appealed. On the evidence the following facts could be found.

About midnight of the night of March 10 to 11, 1964, Dr. and Mrs. O'Brien were in their house near Fresh Pond, Cambridge. The lights were out. The front door was secured. About 12:15 A.M. there was a loud knocking at the front door. Dr. O'Brien went downstairs. Mrs. O'Brien heard him say, "Who is it?" A voice replied, "There is somebody hurt. There has been a bad accident. Aren't you a doctor?"

Mrs. O'Brien then heard "a click and the noise of the chain." She went from her bedroom to the upstairs hallway "and called her husband's name." He replied, "Justina,

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don't come down. They have a gun." Mrs. O'Brien went to the bedroom telephone and tried to dial but received no answer. She heard "shuffling" downstairs, opened a window on the street side of the house, and shouted. She then heard a voice or two voices downstairs "with obscenities" and smelled "fumes or smoke." She saw her husband standing near "the top of the stairs with a bullet hole in his abdomen." He entered the bedroom, and said, "Don't go out there. They are still downstairs."

Mrs. O'Brien succeeded in reaching the police by telephone. The police, a fire department rescue unit, and a priest arrived. Mrs. O'Brien admitted them. About this time, she picked up a bullet on the stairs. [Note 2]

Dr. O'Brien was taken to a hospital. Mrs. O'Brien never saw him again alive. The cause of death was the gunshot wound.

One Hayes, a Cambridge police officer, arrived at the O'Brien house about 12:30 A.M. on March 11. He observed "fresh" footprints in the snow leading in the direction of Huron Avenue. He searched the Fresh Pond area alone for a time. He was joined by another officer named Leonard, who had followed the footprints to the area near High Street and Park Avenue, at first by himself and later with Officer Vaughan of Watertown and a police dog. For a time, about 1:10 to 1:30 A.M. Officers Hayes and Leonard followed a man walking in an area about 600 to 1,500 feet from 28 High Street mentioned below. It was LePage. He said he had come "from Paddy's Bar on Walden Street," where he had been drinking with one Johnson.

That night Officer Hayes and Officer Vaughan with a trained police dog followed the trail from the O'Brien house twice to the vicinity of 28 High Street, about 1,000 feet in a straight line from the O'Brien house. The dog stopped at that house and searched around it.

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On March 13, a Lieutenant Keefe of the Watertown police went to LePage's house in Watertown with Captain Grainger and Sergeant Davenport (attached to the detective bureau) of the Cambridge police. They talked with LePage. He told them that he had bought a Winchester .30-30 rifle from a Cambridge pawn shop and had sold it to a friend, Eskedahl. He also repeated his story that on the night of March 10 he had been drinking at Paddy's Bar on Walden Street with Johnson. [Note 3]

On the same afternoon, Sergeant Davenport went to 28 High Street. He was admitted by Eskedahl's younger brother. LePage arrived at the house at the same time and in effect was directed to go into the house. Sergeant Davenport, who identified himself as a police officer, then placed Eskedahl and LePage in different rooms and questioned them separately. Eskedahl (who could have been found to have been drinking or drunk) admitted that he owned a "Winchester .30-30" rifle which he had purchased from LePage. He said that it had been stolen and that he had not purchased cartridges for it. LePage told Sergeant Davenport that Eskedahl had not told him that the rifle had been stolen. The defendants, during the afternoon, plainly were trying to talk themselves free of police suspicion. They are not shown to have objected to any police action.

About 4:50 P.M. Sergeant Davenport formally placed both defendants under arrest. LePage was put into a parked police cruiser car until about 6:50 P.M. Sergeant Davenport obtained a warrant and searched 28 High Street until shortly before 7 P.M., when Eskedahl was taken out of the house. The defendants arrived at the police station about 7:15 P.M. and were questioned separately, apparently on an intermittent basis, for several hours. They made oral statements which contained highly incriminating admissions, and, soon afterwards, other statements which

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amounted to confessions. The defendants' confessions constituted evidence of the facts stated in the following paragraph.

On the night of March 10-11, they had been drinking at Eskedahl's house at 28 High Street. They were "broke" and "went down to the Fresh Pond area" because Eskedahl "said he knew where they could get $2,000." They knocked at Dr. O'Brien's door and told the doctor when he came to the door that there had been "an accident." The doctor started to unlock the door. One of them pushed against the door. The doctor was standing behind the door and was knocked over. There was a scuffle between Dr. O'Brien and LePage. Furniture was knocked over. LePage ran into Eskedahl who had the gun loaded and "cocked." The gun went off and the doctor was hit. LePage and Eskedahl fled along essentially the route later traced by the dog to 28 High Street. Later they saw dogs on High Street. They also admitted that they "got a cab . . . told the . . . driver we were on furlough. We had the rifle in a duffle bag." The driver who identified them at the trial took them to Mt. Auburn Street and University Road. They then walked to the footpath along the Charles River and "threw the gun in." It was later recovered. Both defendants participated in making the statements and in re‰nacting the scuffle for the police.

The principal question presented is whether the judge properly admitted in evidence the defendants' statements given to the police after their arrest. Further facts concerning the arrest, confinement, and interrogation of the defendants and concerning other aspects of the trial are stated in connection with the discussion below of the assignments of error to which they are relevant.

1. The defendants filed in advance of trial motions to suppress their oral admissions or confessions to the police and certain tangible property (including a Winchester rifle). Commonwealth v. Lewis, 346 Mass. 373, 382. See Commonwealth v. Jacobs, 346 Mass. 300, 304-305. The trial judge denied these motions without prejudice in advance

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of trial. He heard the motions upon a voir dire during the trial and ruled that the admissions and confessions were voluntary. He ruled upon the admissibility of tangible items as they severally were offered in evidence.

In some cases ruling upon such motions in advance of trial will facilitate the administration of justice. That, however, may not always be so. In this instance, examination of the transcript shows that the trial judge, in his discretion, reasonably decided that dealing with the motions during the trial would adequately protect the rights of the defendants and consume less court time than attempting to decide them in advance of trial.

The defendants rely upon Rule 41 (e) of the Federal Rules of Criminal Procedure, 18 U. S. C. Appendix, 3764 (1964), as requiring pre-trial disposition of such motions with respect to tangible property. The Federal precedents, of course, may be helpful guidance in an area where Mapp v. Ohio, 367 U.S. 643, and other decisions of the Supreme Court of the United States have caused substantial revision of State criminal procedures or where there is no clearly established Massachusetts practice. See Commonwealth v. Monosson, 351 Mass. 327, 329-330. The Federal rules and cases, however, do not control Massachusetts procedures, so long as there is no violation of applicable Federal constitutional principles. The defendants have shown no prejudice from the course followed by the trial judge.

In the opening for the Commonwealth, reference was made to some matters discussed in the defendants' motions to suppress evidence. The defendants claimed exceptions to the trial judge's refusal to strike the references and the opening. The judge appropriately instructed the jury, at once and later, that nothing said in the opening was evidence and that they were not to regard statements in the opening as more than a prediction of what the evidence would be. There was no error. Commonwealth v. Makarewicz, 333 Mass. 575, 583. See Commonwealth v. Crehan, 345 Mass. 609, 613.

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2. A number of assignments present the question whether the defendants' incriminating statements, and the rifle discovered as a consequence of these statements, were illegally obtained and hence improperly admitted in evidence. The trial judge, in the absence of the jury, conducted a careful voir dire before admitting in evidence the defendants' statements to the police after their arrest or the rifle. See Commonwealth v. Rogers, 351 Mass. 522, 529-531; Jackson v. Denno, 378 U.S. 368, 378-391. Certain other items which were the subject of motions to suppress were not introduced in evidence.

In a manner consistent with the principle stated in the Rogers case the judge determined for himself as a question of law "[w]hether [the] evidence had been unlawfully obtained." He decided in effect that the defendants had not been deprived of constitutional rights. He also concluded that the statements were voluntary by a process, which, as we read Jackson v. Denno (at pp. 376-391, esp. p. 378, fn. 8; cf. separate opinion, pp. 403-408), has recently received the approval of the Supreme Court of the United States. Cf. Sims v. Georgia, 385 U.S. 538, 542-544. In any event, no pertinent exceptions were saved to the judge's charge (with respect to the jury's function in passing upon the defendants' statements).

The defendants now assert that they were detained and arrested without probable cause (see Wong Sun v. United States, 371 U.S. 471, 479) and interrogated in violation of their constitutional rights. We deal first with their interrogation and arrest at 28 High Street.

It is by no means clear that the defendants' argument (that their arrest was illegal and that all evidence resulting from it should have been excluded), even if raised specifically in the trial court, is presented by any assignment of error. See Commonwealth v. Lewis, 346 Mass. 373, 383; Commonwealth v. Nunes, 351 Mass. 401, 405-406; Commonwealth v. McCambridge, 351 Mass. 516, 521. If, however, the question is treated as raised by general assignments of error, the arrests cannot be said to have been without probable

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cause. The evidence indicates that, at the time of the formal arrests, and perhaps at least as early as Sergeant Davenport's arrival at Eskedahl's house on March 13, the information possessed by the police could be found to have amounted to probable cause for belief that the defendants, who fitted Dr. O'Brien's description of them [Note 4] and were known to have had contacts with each other, were involved in the homicide. See Wong Sun v. United States, 371 U.S. 471, 479. The burden was on the defendants to show that the arresting officer did not directly or by reliable hearsay (see Draper v. United States, 358 U.S. 307, 310-314) have sufficient information to constitute probable cause. See Commonwealth v. Fancy, 349 Mass. 196, 202-203; Commonwealth v. Mitchell, 350 Mass. 459, 464. We hold that the arrests were legal and that no illegality in them gave basis for the exclusion of statements later made to the police.

The defendants' principal contention is that their incriminating statements at the police station were obtained in violation of their constitutional rights. The circumstances in which these statements were made could have been found to have been as described below. Neither defendant testified concerning these events either at the voir dire or before the jury.

When LePage was taken from Eskedahl's house to wait in a parked police car, he was informed by Sergeant Davenport that he was under arrest and that anything he said would be used against him. Some two hours later, when Eskedahl was taken from the house, Sergeant Davenport in Eskedahl's presence told a Mrs. Delaney, Eskedahl's neighbor and an old family friend, that he was being charged with suspicion of murder; that he did not "have to tell us a

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thing if he didn't wish to because we would use it"; that "she could feel quite free to come to the . . . [p]olice [s]tation"; and that she "could tell . . . [Eskedahl's] attorney." Upon their arrival at the police station, Sergeant Davenport warned both defendants that "they didn't have to tell us a word if they didn't wish to," and told them that they could get in touch with friends, their family, or an attorney. He also called their attention to a notice posted on the wall concerning their rights. See G. L. c. 276, Section 33A (as amended through St. 1963, c. 212); Commonwealth v. Bouchard, 347 Mass. 418, 420; Commonwealth v. Kerrigan, 349 Mass. 295, 299.

After the defendants had gone to the police station, Mrs. Delaney called Eskedahl's lawyer, Mr. Andrew, who twice before had represented Eskedahl in criminal matters. He had over fifty years' experience as a lawyer, was then a county commissioner, and had served as assistant district attorney, assistant attorney general, and district attorney. Mr. Andrew arrived at the police station at 8:15 P.M. and spoke to Captain Grainger, the officer in charge, who said that Eskedahl was at the police station, and "[i]f you wait a little while, you can take him home with you." Mr. Andrew was at once permitted to confer privately with Eskedahl for as long as he wished.

After interviewing his client, Mr. Andrew told Captain Grainger and Sergeant Davenport that Eskedahl denied any connection with the matter, that he had found Eskedahl truthful on prior occasions, and that he believed him. Mr. Andrew also said that he had advised Eskedahl to comply with the police request that he take a polygraph test, which later Eskedahl declined to do. Captain Grainger "told Mr. Andrew that the defendants were merely suspect, that at that time there was nothing tangible relating to the case, that we would hold them, and if nothing developed, then we would release them." Sergeant Davenport said to Captain Grainger, in Mr. Andrew's presence, "I haven't made up my mind as to what complaint, if any . . . to make against . . . them." It was then agreed that Mr. Andrew would

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telephone the police an hour later, at which time they perhaps "could tell him definitely whether the men would be released." Mr. Andrew never asked to see LePage because he did not think it necessary, nor did he tell the police (although he did tell Eskedahl) that he would represent LePage also. Mr. Andrew left the police station around 9:20 P.M. [Note 5] Sometime after 10 P.M. Mr. Andrew talked by telephone with the police and learned [Note 6] that, "[b]ecause of conflicting statements," they had "decided to hold" the defendants for murder. Mr. Andrew called Mr. Travers (see fn. 5) and asked him to go to the police station and advise both defendants "as to their rights."

The interrogation continued. During the course of the evening, the police offered the defendants food and coffee. LePage admitted having lied and, sometime before 11 P.M., made several admissions. Sergeant Davenport told him that he could make no promises with respect to sentencing or to keeping his friend Johnson (fn. 3) out of the investigation. LePage said that he would make a statement, but only if Eskedahl agreed, and asked to speak with him alone.

Shortly after 11 P.M. the defendants conferred privately for about fifteen minutes. About 11:30 P.M., while being taken to a water bubbler in the hall, LePage spoke briefly (out of hearing of the police officers) with his wife, who had arrived at the station in the later part of the evening, and who, before then, had spoken with him "two or three times" by telephone. During the evening Eskedahl participated in at least one telephone call. The defendants did not ask to use the telephone. There is no evidence that either defendant asked to see counsel.

Around midnight LePage told Sergeant Davenport that he wanted to make a statement. Eskedahl asked the police what evidence they had, and was told that they were trying

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to obtain a spent slug from the previous owner of the defendants' rifle for comparison with the fatal slug, but that LePage had not yet given them a statement. LePage said to Eskedahl, "They caught me in about . . . [fifty five] lies." The defendants asked to be left alone again, and they conferred. Eskedahl then said to the police officers, "Hypothetically, two guys with a gun . . . [it] goes off and is bumped. What could it be?" One of the detectives, Sergeant Norton, said, "Isn't that what I have said right along?" LePage said, " [Y]ou have the truth. This is it."

At this point, at some time before 1 A.M., Captain Grainger entered the interrogation room and advised the defendants of certain rights. [Note 7] Both defendants said that they had been "told by the sergeants about . . . [their] rights," and that they would give a formal statement. Captain Grainger left the room to arrange for a stenographer to come from the State police. Then, shortly before 1:30 A.M., Captain Grainger told the defendants' attorney, Mr. Travers (fn. 5), who was then at the police station, that a stenographer was coming to take the defendants' statement. Mr. Travers conferred in private with both defendants. Captain Grainger's testimony indicates that it was during a brief interval between the time that he left the interrogation room and the time when Mr. Travers consulted with the defendants, that they gave Sergeant Davenport and other police officers portions of the confession described above.

The defendants argue that Mr. Travers' presence and activities at the police station show that their confession was illegally obtained. On somewhat conflicting evidence, it could have been found that Mr. Travers arrived at the police station for the second time that night (see fn. 5) at 12:30 A.M., [Note 8] in response to Mr. Andrew's call, and informed

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Sergeant Norton that he represented Eskedahl. He was told that the police had "both boys . . . in the back room, just clearing up a few points, would he [Mr. Travers] mind going out and getting some coffee." Mr. Travers returned with the coffee about 1 A.M. [Note 9] and, without having further conversation with Sergeant Norton, took a seat at one of the desks in the main room next to the interrogation room. [Note 10] There was evidence that neither Mr. Travers nor anyone else asked Sergeant Davenport (or asked Sergeant Norton in Davenport's presence) for an opportunity to talk to the defendants, and that Mr. Travers, seated at a desk in the detectives' main room, merely said "hello" to Captain Grainger as the latter came through the room about 1 A.M. on his way to see the defendants. [Note 11] Captain Grainger had heard that Mr. Travers had been there "some . . . time," and knew that Mr. Travers represented Eskedahl (though not LePage). Neither Sergeant Norton nor Captain Grainger informed the defendants of Mr. Travers' presence. Mr. Travers conferred with the defendants for a half hour or more, beginning about 1:30 A.M. Thereafter he stated that he did not want either defendant questioned further and that they would repudiate anything they had already said.

There is no suggestion in the record of physical abuse or threats. There was no evidence fairly presenting any issue that the confessions were induced by deception. United States v. Valente, 155 F. Supp. 577, 578-579 (D. Mass.), relied

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upon by the defendants, rests largely on Mallory v. United States, 354 U.S. 449, and the Federal requirement of prompt production before a magistrate. The two youths were allowed to communicate with friends and family and with each other. Eskedahl was permitted to see Mr. Andrew who gave him advice. Mr. Andrew knew or should have known when he left the police station that the police had not completed examining the defendants and that questioning would continue. Such further interrogation was at least with his implied acquiescence in view of his advice that Eskedahl take a polygraph test. As indicated above, neither defendant requested an opportunity to consult counsel. The judge was warranted in finding that the confession was voluntary. Cf. Haynes v. Washington, 373 U.S. 503, 504, 507-515.

The interrogation of the defendants occurred before the decision in Escobedo v. Illinois, 378 U.S. 478 (June 22, 1964). The trial (February 4 to 19, 1965) took place before the decision in Miranda v. Arizona, 384 U.S. 436 (June 13, 1966). The Miranda decision, of course, need not be retroactively applied to this case. Johnson v. New Jersey, 384 U.S. 719, 726-735. See Commonwealth v. Morrissey, 351 Mass. 505, 509-511. See also Commonwealth v. McCambridge, 351 Mass. 516, 520-521, and cases there cited. The Supreme Court in the Johnson case, 384 U.S. 719, 731-735, recognized that police authorities, like the Cambridge police in the present case, "attempting to protect the privilege" against self-incrimination, prior to the Escobedo and Miranda decisions, had "not been apprised . . . of the specific safeguards" which emerged in those cases. That court also recognized that naturally enough, such police authorities may have "adopted devices which, although" not complying fully with those safeguards, "were not intentional evasions of the requirements of the privilege." We think that the Johnson decision permits the State courts a reasonable range of discretion in sensible appraisal of police action taken prior to and in ignorance of the Escobedo decision. See Commonwealth v. Tracy, 349 Mass. 87, 98-99,

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cert. den. 384 U.S. 1022; Commonwealth v. Chase, 350 Mass. 738, 742-743; Commonwealth v. Rogers, 351 Mass. 522, 530-531. That these defendants were repeatedly warned of their rights, that they were told that they could get in touch with counsel, that Eskedahl talked with counsel who gave advice at the police station, and that they never asked for counsel distinguishes this case from the Escobedo case, 378 U.S. 478, 490-491, and Commonwealth v. Guerro, 349 Mass. 277, 279, 281-282 (refusal of request to call lawyer). See Commonwealth v. Sousa, 350 Mass. 591, 598-599; Commonwealth v. Kleciak, 350 Mass. 679, 685-689.

There is no evidence that either Mr. Andrew, when and if he called the police by telephone, or Mr. Travers, prior to his talk with the defendants at the police station, requested or demanded of the police that they cease their interrogation of the defendants. Cf. People v. Gunner, 15 N. Y. 2d 226, 231-232, where a majority of the New York Court of Appeal (at pp. 232-233) refused to extend the doctrine of the Escobedo case, but held that a specific request by an attorney that there be no questioning of his client precluded the introduction of the client's statements made thereafter.

3. There is no merit to the defendants' exceptions to rulings concerning evidence.

(a) The conversation downstairs, when Dr. O'Brien admitted the intruders, was part of the events constituting the murder. It was admissible. See Commonwealth v. Simpson, 300 Mass. 45, 50-51, cert. den. 304 U.S. 565. We need not decide whether the judge was required to strike, as he did, Mrs. O'Brien's testimony (fn. 2) concerning her husband's later remarks to her upstairs. [Note 12]

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(b) The trial judge within his discretion could permit Dr. Carter to testify that Dr. O'Brien's injuries, observed by him when treating Dr. O'Brien at the hospital, were caused by a high velocity object. He could also allow Dr. Luongo, a medical examiner, to express the opinion that the injuries were consistent with the passage of a bullet which had been received in evidence. See Commonwealth v. Bellino, 320 Mass. 635, 637-638; Commonwealth v. Burke, 344 Mass. 243, 248-249.

(c) Hayes, a policeman, testified that, when he arrived at the O'Brien house just after the shooting, Mrs. O'Brien said, "My husband's been shot." It was merely an assertion of an indisputable fact.

(d) The trial judge, in his discretion, could admit photographs of the defendants taken at the time of their arrest. The pictures of the defendants were not the result of illegal police action. See Commonwealth v. Palladino, 346 Mass. 720, 724. Since made after the arrest, they had no tendency to show guilt of any prior crime. Cf. Commonwealth v. McLellan, 351 Mass. 335, 336. A picture of Dr. O'Brien was not inflammatory. Although all these pictures were of limited relevance, they were not prejudicial. See Commonwealth v. Valcourt, 333 Mass. 706, 711-712; Commonwealth v. D'Agostino, 344 Mass. 276, 279. See also Commonwealth v. Smith, 350 Mass. 600, 607; Commonwealth v. Stirling, 351 Mass. 68, 71-72.

(e) The trial judge admitted against both defendants evidence of the movements of LePage observed by two officers in the early morning of March 11. He carefully limited to LePage alone the evidence of LePage's oral statements made in Eskedahl's absence. LePage and Eskedahl later were sufficiently linked with each other so that where they respectively were at various times on the night of the murder was of significance as to each of them.

(f) There was no error in permitting a police officer to describe footprints in the snow as "fresh." Commonwealth v. Cataldo, 326 Mass. 373, 376.

(g) There was no error in admitting the evidence of the trailing of the intruders by trained dogs. See Commonwealth

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v. Smith, 342 Mass. 180, 182 (bloodhounds search without result). Decisions in other States frequently have treated such evidence as admissible at least as corroborative of other testimony. See Wigmore, Evidence (3d ed.) Section 177. The capacity of trained dogs to follow a human's trail has long been known. Cf. Commonwealth v. Fatalo, 346 Mass. 266 (discussing the lack of general acceptance of polygraph testimony). Although such evidence should be limited to matters as to which it is likely to be reliable, it may be admitted in the exercise of a sound judicial discretion.

4. The exceptions to the charge are without merit. Viewed as a whole and in detail, it was thorough, clear, and informative. Two matters only are worthy of comment.

(a) There was no error in the judge's explanation of the jury's function in determining whether the confessions were voluntary. He told the jury to disregard the confessions if they found the "confessions to have been involuntary and coerced by threats, promises, or otherwise."

(b) In a homicide case, the trial judge should charge on the issue of manslaughter where any view of the evidence will permit a finding that the offence is manslaughter and not murder. See e.g. Commonwealth v. Campbell, ante, 387, 391-392. There was, however, no occasion here for the judge so to charge, for there was no evidence upon which the jury could find that the defendants were not engaged in the commission of a felony when the killing occurred. Although Dr. O'Brien was induced to unlock the door by the ruse of stating that there had been an accident, the uncontroverted evidence that the defendants were the armed intruders, that their purpose was to take money, and that they began the scuffle with Dr. O'Brien, permitted the inference only that the invaders were committing an armed assault with intent to rob in a dwelling house. Also, if the jury were to find from the evidence of drinking that the defendants came to the O'Brien house drunk, their acts would still not lack the guilty intent necessary for there to have been a felonious assault. See Commonwealth v. Farrell,

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322 Mass. 606, 621. See also Commonwealth v. Hawkins, 3 Gray, 463, 466; Commonwealth v. Rogers, 351 Mass. 522, 532-533. A homicide during the commission of a felony is murder. Commonwealth v. Devereaux, 256 Mass. 387, 393-395. Commonwealth v. Green, 302 Mass. 547, 554-556. See Commonwealth v. Lussier, 333 Mass. 83, 89-93. See also Commonwealth v. Venuti, 315 Mass. 255, 258; Commonwealth v. Gricus, 317 Mass. 403, 411-412; Commonwealth v. Devlin, 335 Mass. 555, 566-568; Commonwealth v. Ladetto, 349 Mass. 237, 248-249. It was a natural and probable result of carrying out the criminal purpose that the loaded and cocked gun was discharged.

5. Other assignments need not be discussed.

6. We perceive no reason in justice for disturbing the judgments. See G. L. c. 278, Section 33E (as amended through St. 1962, c. 453).

Judgments affirmed.