COMMONWEALTH vs. WILLIAM G. SULLIVAN & another.

WHITTEMORE, J. The defendants have appeals under G. L. c. 278, Sections 33A-33G, from judgments of guilty of murder in the first degree. The jury having recommended that the death sentence be not imposed, the defendants were sentenced to life imprisonment.

On October 14, 1966, about 7:15 A.M. two men committed a payroll robbery at the premises of the Railway Express Agency at the South Station in Boston. As the robbers fled one of them (identified at the trial as Sullivan) fired a shot which hit an employee of the Agency, Michael Shaw, in the head. Only one shot was fired. Shaw died from the wound on December 2, 1966. The defendant Reissfelder was arrested on the day of the robbery, and with him was found a revolver which John Coleman, another Agency

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employee, at the trial identified as the gun carried by Reissfelder. The defendant Sullivan was arrested at the Cambridge court house on November 14, 1966, following Coleman's identification. Each defendant was identified by eyewitnesses. A remark by Sullivan to a companion overheard in the Cambridge court house tended to incriminate him.

REISSFELDER'S ASSIGNMENTS OF ERROR.

1. Failure to suppress as evidence a twenty-two calibre pistol.

On the strength of a default warrant for the arrest of Reissfelder in a "bad check" case, five or six police officers about 3:45 P.M. on October 14, 1966, entered the apartment of Martha Sternberg where Reissfelder, a friend of her son, had spent the previous night. They saw Reissfelder hiding behind a washing machine in a small room off the kitchen. An officer said, "[W]e have a warrant for your arrest" and took him by the arm. He stood up and the officers saw, on the laundry bag on which he had been crouching, a ".22 long calibre Colt single action revolver" in a holster. An officer testified that they did not go to the apartment looking specifically for a gun but "looking for a gun . . . was part of it." They knew there had been a holdup prior to 8 A.M. on that day. The officers did not then search the premises. They did search the defendant and found seven rounds of twenty-two calibre cartridges in his trousers pocket.

It may be inferred that the officers took advantage of the opportunity to make an arrest under the outstanding warrant because of their belief or suspicion that Reissfelder had been one of the robbers. In the circumstances we think that this did not require the suppression of the gun as evidence.

There is no suggestion that the warrant had been procured as a pretext, or after the robbery, or that there had been unreasonable delay in its service, or in any other respect that it was not appropriate and lawful that it be then served. Neither the wish of the police to have the defendant

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under arrest at that time for another reason, nor their belief that when they arrested him they might find a weapon used in the crime of that morning, made the arrest a mere sham or a pretext. Compare Taglavore v. United States, 291 F. 2d 262 (9th Cir.). In that case, in order to search the person of a narcotics suspect, the officer made use of a warrant to arrest the suspect for two minor traffic violations observed by another officer the night before, as to which that officer had been too "busy doing other police work" to take prior action. The court, deeming the warrant only an excuse for the search, ruled the search and the arrest illegal. We assume that any search not reasonably related to or serving the purpose of the arrest under the default warrant would have been invalid. There was, in our view, no search. Commonwealth v. Murphy, 353 Mass. 433, 438. The gun was in plain sight in the defendant's possession. See G. L. c. 269, Section 10. Commonwealth v. Ballou, 350 Mass. 751, 756. If, however, observing and taking the gun were to be thought of as involving a search, it was action directly related to the arrest under the warrant. See Terry v. Ohio, 392 U.S. 1, 22-27; Carlo v. United States, 286 F. 2d 841, 845-848 (2d Cir.), cert. den. 366 U.S. 944.

The arrest was not illegal and there was no basis for suppressing the gun. Compare United States v. Harris, 321 F. 2d 739 (6th Cir.). (No warrant; the one hour's search for narcotics was held the primary purpose of the arrest; search held invalid even though there was probable cause to suspect narcotics violations.)

2. The relevance of the gun and bullets found with Reissfelder.

There was testimony that this was the gun that was pointed at the witness Coleman. The most that the witness could be taken as saying was that it looked like the gun. The evidence was that it had not been fired. It was relevant that the defendant when arrested had with him a gun of the unusual type used in the robbery and also bullets to use in that gun. The gun was an important part of the identification of the defendant as one of the robbers. The introduction of the spent bullet, fired by the ballistician from

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this gun (sustaining his view that the gun had not been fired in the robbery), did not prejudice the defendant.

3. Testimony of witnesses identifying Reissfelder.

Coleman testified that on October 14, 1966, shortly after 7:15 A.M. he was carrying a bag of money along the second floor corridor of the Agency's offices with Michael Shaw and John Esposito. A man (later identified as Reissfelder), came out of room No. 4 with a gun, grabbed the bag of money, pointed a gun at Coleman's stomach saying, "Give me the money." At first the three employees thought it was a joke. Shaw and Esposito kept walking down the corridor in a southerly direction. Coleman struggled with the man but when he heard "a click or two" from the gun, he let the bag go. The man then called to a companion in the men's room (later identified as Sullivan) who came out with a gun in his hand and said, "Get in the men's room." The hall was very dark. There was a light on in the men's room. There was a skylight. The jury took a view. The witness was able to see the face of the man who had come out of room No. 4. He was "face to face" with him. The man had black hair, or dark brown (seen at the sides of his head). He had on a "skully cap, like a longshoreman's cap or a golfer's cap," a "peaked cap," a dark blue jacket and sunglasses. He had olive skin and a five o'clock shadow. The witness had had the man under observation for up to thirty-five seconds. In the court room the witness pointed to the defendant Reissfelder as that man.

On October 15, at the court house of the Dorchester court (a district court in Boston), Coleman had "positively identified" Reissfelder as the man with whom he had struggled. The man was in a cell with several other men. The witness then went to the Roxbury court (another Boston district court), "[a]s far as . . . [he knew]," to look at Reissfelder, but he was not asked to do so. He then went to headquarters to identify Reissfelder and was there two hours before he did so. He "was not asked to identify anyone there" but he did see Reissfelder there with a detective at a desk.

After he identified Reissfelder, Coleman was shown many

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photographs in the course of the police search for another man. He observed a man at police headquarters through a mirror that hid him from the observed person. The man walked around and talked. After about five minutes the witness said, "that wasn't the [other] man."

The defendant moved to strike Coleman's testimony after the testimony of prior identification at the Dorchester court had been elicited. United States v. Wade, 388 U.S. 218, was decided June 12, 1967. It does not apply to identification made prior to that date. Stovall v. Denno, Warden, 388 U.S. 293. As to the contention under the Fourteenth Amendment, we note first that the defendant does not contend that he was illegally detained at any of the places where he was observed. We think also that there is no basis for concluding that "the confrontation . . . was . . . unnecessarily suggestive or conducive to irreparable mistaken identification" (idem, 301-302). Commonwealth v. Blackburn, ante, 200, 203. Commonwealth v. Bumpus, ante, 494, 497-502 (point 2). The witness had been face to face with the man the day before. In looking at other pictures, searching for the other robber, he did not respond to the suggestion of the pictures or of police custody. The identification was prompt and certain. There is nothing in the defendant's attempt to suggest that only after three looks at different places was the identification made. It appears plain that the word "identify" (used to some extent in leading questions on cross-examination) has been used not only in the sense of recognition by the witness of his assailant, but also to state what he was to do at other places, to inform others who needed to know that the man was, in the witness's view, the assailant.

Alexander LaRusso, an Agency foreman, was at a counter on the first floor of the building on October 14, 1966, about 7:05 A.M. He heard a shot upstairs, and footsteps running down the stairs. He saw two men dressed in working clothes come down to a partition, turn, come down four steps and run past the receiving counter. He saw both of them for about five seconds and got a look at their faces. He identified

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them in the court room as Reissfelder and Sullivan. Reissfelder said to him, "Stay still, don't move." They both had on dark glasses and dark jackets; dark blue, he thought. One was tall, the other short. The shorter man (Reissfelder) was thin. He had black hair and his complexion was dark. He had on a cap like a golfer's cap, with a peak.

The next day at police headquarters he observed Reissfelder through a window but the defendant could not see him. The police did not ask him to identify the man. The officer did not say, "Does this look like the guy?" nor did he give a history of the man. It took the witness about a minute to identify the defendant. "I knew it was him right away." But he studied him. "There was no doubt in my mind." [Note 1] He saw eight or nine pictures of Reissfelder on that day. He did not know whether it was before or after the identification. He discussed the identification of Reissfelder with the police a few times on the same day.

Reissfelder had seasonably excepted to the denial of a voir dire in respect of the basis of identification. That was before the testimony as to the headquarters viewing and identification was elicited. There appears no motion to strike LaRusso's testimony. There is in this testimony no showing of denial of due process. There is no basis for concluding that the police sought to influence the witness or wanted other than his best judgment as to whether Reissfelder was one of the men LaRusso had seen on October 14.

Later, eyewitness Esposito also identified Reissfelder in court. There was no evidence of prior confrontation between him and the defendant.

4. Severance.

Under our decisions, whether to order severance is in the court's discretion. Commonwealth v. Fancy, 349 Mass. 196, 204, and cases cited. The motion to sever was denied after hearing. The motion disclosed an intent to use the

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testimony of Sullivan for exculpatory purposes. However, what was specifically intended does not appear and there is no showing of abuse of discretion. The defendant's brief points to the absence of evidence at the trial that the men had had a prior relationship. We are unable to infer from this that Sullivan could or would have testified that they were unacquainted. The defendant's argument that if he had called Sullivan to testify to nonacquaintance the jury might have thought that counsel knew something about Sullivan's participation or was seeking to shift the blame does not impress us as ground for ruling error in the denial of severance.

We can see nothing in the case of United States v. Echeles, 352 F. 2d 892 (7th Cir.) supporting a severance in the case at bar.

5. The charge as to alibi.

The jury were told: "The burden of proof remains upon the Commonwealth to satisfy you beyond a reasonable doubt as to the guilt of the defendants here standing before you, notwithstanding the defense of alibi. The burden does not thereupon shift to him or them to establish their innocence." What burden of proof meant was defined. This defendant (and Sullivan) complain of the judge's reading part of the charge in Commonwealth v. Webster, 5 Cush. 295, 319. [Note 2] In context this did not shift the burden of proof and was not error. Commonwealth v. Rogers, 351 Mass. 522. The judge made plain that the prosecution has to prove its case notwithstanding the alibi. Under the instructions the evidence supporting the defence of

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alibi, like any other evidence favorable to the defendant, did not have to do more than raise a reasonable doubt of the defendant's guilt. It is not improper to point out to the jury that in weighing alibi testimony they should have in mind that an established alibi overcomes direct testimony however forceful.

6. Other aspects of the charge.

a. There is no basis for concluding that the judge unduly emphasized portions of the charge by vocal inflection or otherwise.

b. It was not error to charge that the jury might acquit Sullivan and convict Reissfelder. The evidence tended to show a joint enterprise with another person. Hence, Reissfelder, who did not fire the fatal shot, could be convicted of first degree murder, even if the other person was not Sullivan. The case of Commonwealth v. McCarthy, 348 Mass. 7, 14-15, concerned a new trial and is not in point.

SULLIVAN'S ASSIGNMENTS OF ERROR.

7. Excluding from the jury persons who said they were opposed to capital punishment.

The wise and proper course is to determine from further questions whether a belief against capital punishment would interfere with a determination of the guilt of the defendant. Commonwealth v. Nassar, ante, 249, 256. But on this record it cannot be concluded that the defendant was prejudiced by the exclusion of persons who stated opposition to the death penalty. The issue is resolved by Witherspoon v. Illinois, 391 U.S. 510, and Bumper v. North Carolina, 391 U.S. 543. Accord, the Nassar case at pp. 255-257. We quote from the Witherspoon opinion (pp. 516-518): ". . . [The petitioner] maintains that such a jury, unlike one chosen at random from a cross-section of the community, must necessarily be biased in favor of conviction, for the kind of juror who would be unperturbed by the prospect of sending a man to his death, he contends, is the kind of juror who would too readily ignore the presumption

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of the defendant's innocence, accept the prosecution's version of the facts, and return a verdict of guilt. . . . The data adduced by the petitioner, however, are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." There are no data before us tending to show that jurors not opposed to the death penalty tend to favor the prosecution.

8. Sullivan's incriminating admission at Cambridge on November 14, 1966.

Detective Caruso testified that on November 14, 1966, he observed Sullivan in the second floor lobby of the Cambridge court house talking to another man; that he saw Coleman come up the stairs and look at Sullivan and saw Sullivan look at Coleman and then say something to the man beside him, after which he turned and picked up his coat and walked to the end of the corridor and sat on a bench.

Detective Nee testified that at the time he was standing about six feet from Sullivan, he saw the looks pass between Sullivan and Coleman and heard Sullivan say to the man he was with, "There is the big guy now." Then, after that man had looked toward the stairway and had said something to Sullivan, he heard Sullivan say, "Express job."

These were relevant admissions. The testimony of the two officers was complementary. There was no right to counsel. The defendant was not in custody, nor being detained and questioned. Compare Commonwealth v. Wallace, 346 Mass. 9, 16. It is irrelevant that three officers were nearby and went to Cambridge to arrest Sullivan. The statement was not encouraged or elicited or provoked by the police. Cf. Massiah v. United States, 377 U.S. 201, 206. Coleman had been asked to go to Cambridge

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and look at Sullivan. The statement was not made to police officers. Cf. Commonwealth v. McCarthy, 348 Mass. 7, 10.

The pre-trial stipulation by the Commonwealth did not preclude the admission of the testimony. The stipulation was the basis of the denial of Reissfelder's motion for severance. Reasonably construed, it was that the Commonwealth would not introduce as part of its direct case confessions or admissions on the part of one defendant that would implicate the other. [Note 3] Sullivan's admissions by words and associated conduct in no way implicated Reissfelder.

Sullivan's pre-trial motion for "a copy or copies of all statements alleged as admissions and/or confessions" made by him was allowed. This reasonably related to written statements and not to the spontaneous remark at the Cambridge court house. It was not the equivalent of a motion for a disclosure of oral testimony. In colloquy Sullivan's attorney said as to his "motion for copies of statements . . . if there was an admission or confession, whether it is direct or otherwise, I'd like to know." The assistant district attorney answered, "I have no way of knowing just what you mean. If there were some statements made by Mr. Sullivan, I have no statement of Mr. Sullivan." This remark by itself might be ambiguous, but it is to be read as related to the motion. So read, it concerned statements of which copies could be made. The construction of the motion and the colloquy was for the judge. It was reasonable to construe them, as he did in effect by admitting

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the testimony, as not applying to evidence of Sullivan's spontaneous exclamation. Although the judge at first indicated that he thought the evidence went against the prosecutor's statement, when, after reflection, he admitted the testimony, he made no further reference to that aspect of the matter.

9. The motions to see the grand jury minutes and for a mistrial.

After Officers Caruso and Nee had testified and Officer Donovan had testified that he had heard Sullivan say, "There is the big guy," the defendant renewed his motion, previously denied, to inspect the grand jury minutes. He also moved for a mistrial.

Officers Caruso and Nee testified that they did not testify before the grand jury. Officer Donovan was asked if at any time before the grand jury he repeated what he heard as he stood at the railing in the court house. He had started to answer "I was never" when the prosecutor's objection was sustained. Sullivan's attorney offered to prove that his answer would be "that he did not make any such observation or statement at any Grand Jury proceeding in connection with this alleged robbery concerning Sullivan."

The record at this point does not tell us whether Officer Donovan would have answered, "I was never asked" or "I was never called before the Grand Jury." The offer of proof is not an offer to show that Donovan was before the grand jury or that he was asked the question. But, in any case, at the argument our attention was called to the Commonwealth's answer to the motion to furnish the names of witnesses before the grand jury (paper No. 19). The names supplied were Sergeant Richard Crowley, John Coleman, Francis Paine and Dr. Richard Ford. We conclude that the defendant does not, as he now argues, show a particularized need (Commonwealth v. Doherty, 353 Mass. 197, 210), for the grand jury minutes.

For the reasons stated it was not error to deny the motion for a mistrial.

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10. Rulings as to evidence.

a. It was not error to permit introduction of the color of the defendant's hair on October 27, 1966, and November 14, 1966. A police officer testified that on November 14, 1966, when arrested, the defendant's hair was either blonde or light brown; other witnesses testified that Sullivan's hair was much lighter at earlier times than it was during the trial. A chemist testified that in the five months prior to the trial (held in July, 1967) the defendant's hair had not been dyed. The assistant district attorney asserted in the course of the argument over the admissibility of the officer's testimony that at the trial the defendant's hair was dark brown or black. This was not disputed. Coleman had testified that on October 14, 1966, the assailant identified as Sullivan had blonde hair. In the court room this witness looking at the defendant said his hair was "sandy." We see no basis for claim of error. That Sullivan's hair was more nearly blonde one month after the murder than at the trial bore on the sureness of the identifications of Sullivan as the assailant, and as a man with blonde hair.

b. An alibi witness testified that about a month after the crime he talked with Sullivan. He then recalled having seen the defendant on October 14, 1966, at Dot's Diner in Charlestown, where he goes every morning. He would say it was "between 7, about 7:20." He recalled in the November talk something said on October 14 that was "a special reason why [he] can remember" that morning as a morning when they were together. The conversation was excluded. The offer of proof was that he asked Sullivan if he was working, and Sullivan said, "Yes. I am finishing up on the Black Falcon." The witness had said, "Oh, the jinx ship (a ship on which friends of the witness had met their deaths). On cross-examination he testified that he saw Sullivan at the diner "many, many mornings." There was nothing in the excluded conversation to fix anything more than that at some time the witness and Sullivan had talked about his finishing up on the Black Falcon. That might have been any day. The ruling was within the judge's discretion and was not erroneous.

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Later the defendant offered evidence that Sullivan worked on the Black Falcon on October 13 and 14 and that the unloading of the ship ended on October 14. We assume without deciding that the excluded evidence might have been deemed admissible on the ground that, with the later evidence, it had some tendency to fix the dates. There was no offer of proof in respect of this, and the proffer of the excluded evidence was not renewed. The brief argues only that it was error to exclude the conversation that the defendant had said he was working on the Black Falcon, regarded as a jinx ship. Compare Commonwealth v. Fatalo, 345 Mass. 85, 87-88.

c. No prejudice is shown from the denial, after hearing, of the motion that the Commonwealth furnish all evidence in its possession tending to exonerate the defendant. The motion was not specific and the defendant suggests no evidence that might have helped him. There is no basis for assuming that there was such evidence. The Commonwealth says in its brief that the defendant apparently believes "the [hospital] records may have been useful in cross-examining the deceased's daughter as to her recollection of his ability to speak and communicate, and therefore identify [the] defendant." It does not appear that this possible use of these records was suggested when the motion was denied on July 12, 1967. The transcript, in any case, indicates that the defendant had hospital records and attempted to use them with Shaw's daughter as shown in section (d) next following.

d. It was undisputed that Shaw could recognize persons and communicate at least some of the time up to about four days after Sullivan's arrest. The medical examiner testified that, as he concluded from the hospital records, up to November 18, 1966, or a little later, "some portion of that time" the deceased was able to speak, see and walk. Shaw's daughter testified in effect that she could understand him when she took him home from the Boston City Hospital on November 1, 1966, only if he talked very slowly. Prior to November 1, he talked with her and knew

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her. The defendant's counsel then asked to have the witness look at the hospital records for Shaw's discharge on November 1. The records stated that "he was able to speak and communicate well." An objection was taken to the exclusion of the question whether that refreshed her recollection as to whether he could communicate well and was able to speak.

There was certainly no prejudice in this. If, after Sullivan was apprehended, the deceased, whether he could talk well or poorly, could have in any way signified that he recognized Sullivan, the police could appropriately have had a confrontation, assuming that a suitable and secure place could have been selected. The defendant's advantage in showing that there was no confrontation was not lessened by the ruling.

e. There was no error in excluding the question to Officer Donovan whether he had repeated his testimony as to the corridor admission by Sullivan to the grand jury. See point 9, supra.

f. Whether an unrelated suspect came to the police station voluntarily was a collateral issue not requiring cross-examination.

11. Other rulings.

a. It was not error to decline to direct a verdict. The indictment was in the usual statutory form. Defendants may have specifications. We do not consider the point valid that there must be proof that the "finding of the Grand Jury is the same as that upon which the [P]etit [J]ury is asked to convict."

b. The prosecutor referred in argument to the testimony about Sullivan's hair and then in effect asked the jury to conclude from the testimony that the hair was lighter on October 14 and November 14 than its natural state at the time of trial, and that it had been changed at the prior time as a disguise. He suggested that robbers do disguise themselves. This was no more than calling attention to a possible inference from the evidence.

It was unnecessary for the court to instruct that this

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argument was not evidence. Of course it was not. The judge instructed what was evidence -- testimony, exhibits, and documents, and that the jury's task was to evaluate the testimony of all the witnesses.

12. The charge.

a. As to alibi.

There was no error in this aspect of the charge. See point 5, supra.

b. The degrees of murder.

It was not error to state the three categories of first degree murder. There was no suggestion that the jury could find a killing with extreme atrocity or cruelty. The judge explained in detail only malice aforethought and felony murder and did not err in so doing. He concluded this part of his charge by stating that if the murder was committed with malice aforethought or in the commission or attempted commission of a crime punishable by death or imprisonment for life it was first degree murder.

In then stating that murder which does not appear to be in the first degree is murder in the second degree, the judge adequately charged as to second degree murder.

c. Manslaughter or self-defence.

There was no evidence which would warrant any conclusion other than that the firing of the gun was deliberate or in the course of an attempted robbery.

The witness John Coleman testified that after he entered the men's room he saw the defendant Sullivan standing at the doorway holding it open with his foot. Sullivan had a gun in his hand and was pointing it down the hallway in the southerly direction in which Esposito and Shaw had walked. Sullivan fired a shot "down the hall." The door closed. He heard footsteps running and someone say, "Come on. Let's go." After ten or fifteen seconds he came out and saw Shaw lying there bleeding from his head.

The witness John Esposito had testified that after Reissfelder had said, "I mean business; drop it," Shaw threw a box of checks he was carrying. The inference is he threw it at Reissfelder. In any event the act did not

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furnish a basis for a manslaughter instruction. This, of course, was not "sudden combat." The witness then went into room No. 5, heard a shot, and went out the window.

Francis Paine, an employee, testified that on the morning of the murder he came up the stairs, saw Coleman approaching with a man behind him (whom he identified as Sullivan) with a gun in his hand; the man stopped and said, "Get in there," indicating the men's room. Coleman and the witness went in the men's room, the door was ajar, and Sullivan raised the gun, "closed the door, and fired a shot practically at the same time."

d. Armed Robbery.

It was not necessary to define armed robbery and attempted armed robbery. The only evidence was that both men were armed and that they were acting together in an armed robbery.

e. Unanimity.

The judge rightly instructed that the verdict must be unanimous. It was not necessary to emphasize by further instructions that the decision of guilt should be the conviction of twelve minds and not merely that of a forceful majority or minority.

f. Reissfelder's gun.

It was not error to decline to instruct that the gun found with Reissfelder and identified as carried by him, and admitted without objection by Sullivan, was not evidence against Sullivan. The Commonwealth's evidence expressly showed that the bullet which killed the deceased was not fired from that gun. It was admitted in evidence as a weapon carried by one of the two robbers in their joint enterprise, not as possibly the murder weapon. See Commonwealth v. McLaughlin, 352 Mass. 218, 229-230. The other evidence showed without doubt that Sullivan's companion, whoever he was, carried a gun answering the description of this one. It did not strengthen the case against Sullivan that such a gun was in evidence.

g. Failure to testify.

It was not error to charge, without a request, that the jury

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should draw no inference from the defendant's failure to testify. The court had an obligation to see that the defendant was fairly tried. We are not impressed with the suggestion that this instruction brought the failure to testify into the jury's area of speculation, where it might not otherwise have been.

CONCLUSION.

We have considered all the assignments of error that have been argued and have reviewed the transcript. We see no basis for ordering a new trial under G. L. c. 278, Section 33E.

Judgments affirmed.