COMMONWEALTH vs. MALCOLM F. HICKS & another. [Note 1]

KIRK, J. The defendants Hicks and Hubbard were charged in a single indictment with the murder of Alfonse Vadeikis. After a trial subject to G. L. c. 278, Sections 33A-33G, the jury returned a verdict of guilty of murder in the second degree as to each defendant. The case is before this court on appeals accompanied by a summary of the record, a transcript of the testimony, the exhibits, and assignments of error.

We summarize the evidence. At some time after 11:40 P.M. on August 28, 1967, and before 12:05 A.M. on August 29, Alfonse Vadeikis was found lying between two parked automobiles on West Broadway in South Boston, approximately opposite the South Boston Cafe. The police took him to the Boston City Hospital, where he was pronounced dead at approximately 1:25 P.M. on August 29, 1967.

A witness who lived at 203 West Broadway testified that as he was walking home he heard loud voices. When he looked up the street he saw three men and heard them "hollering at each other," and saw one of the men throw another down between two parked cars. He observed one of the men throw something and heard the smash of a window. He then saw the two men, whom he identified in court as the defendants Hicks and Hubbard, cross the street and enter the South Boston Cafe. A woman who lived in the house in front of which Vadeikis was found testified that she heard loud voices and the breaking of glass. She looked out the window and saw a man lying on his back in the gutter, and two men standing over him. She saw one of the two men bring his foot "right down on top" of the prostrate

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man's stomach, and say, "Now you will stay away from the car." The two men then crossed the street and entered the South Boston Cafe.

In addition, there was testimony that on August 28, 1967, Vadeikis and the defendants had been customers in the South Boston Cafe, but that Vadeikis did not know the defendants and did not speak with either of them. Vadeikis left the barroom at approximately 10 P.M. and the defendants an hour later. Vadeikis' automobile was parked across the street, and the defendant Hicks' car was parked about twenty feet behind it. Both were station wagons. Hicks' car was light blue and Vadeikis' light green, but Vadeikis' car looked bluish under the lights. It was agreed that Vadeikis was nearsighted.

Dr. Richard Ford, the medical examiner who performed the autopsy on Vadeikis, testified that death was due to the tearing of the bowel attachment and bleeding in the belly cavity, caused by "blunt impact to the belly wall, with sufficient force to drive the muscles in and shove the belly so far that its attachment is stretched and torn." He further testified that the injuries were consistent with impact from a shod foot, that there must have been considerable force, and that there was in his opinion more than one impact.

1. We treat the case as a "capital case." G. L. c. 278, Section 33E. Commonwealth v. Baker, 346 Mass. 107, 109. The judge charged the jury on murder and on manslaughter. The defendants assign as error the refusal of the judge to reduce the crime charged from murder to manslaughter. We regard the motion as one for a directed verdict of not guilty of murder. If there was evidence which warranted the verdict of guilty of murder in the second degree there was no error in denying the motion. "Murder in the second degree is unlawful killing with malice aforethought," but without the deliberate premeditation which characterizes murder in the first degree. Commonwealth v. Bedrosian, 247 Mass. 573, 576. "`Malice' as here used does not necessarily imply ill will toward the person killed, but has a more comprehensive meaning, including any intent to inflict injury

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upon another without legal excuse or palliation." Ibid. "Malice includes `every . . . unlawful and unjustifiable motive' and is `implied from any deliberate or cruel act against another, however sudden.'" Commonwealth v. Leate, 352 Mass. 452, 456, and cases cited.

The throwing of Vadeikis to the ground and the kicking of him in the stomach with such force as to cause death by internal bleeding amply warranted a finding of malice, which is the element distinguishing murder from manslaughter. The verdict of the jury impliedly rejected the defendants' contention that the killing occurred in "a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat," which, if accepted, would mitigate what otherwise would be murder to manslaughter. Commonwealth v. Soaris, 275 Mass. 291, 299. Commonwealth v. Hartford, 346 Mass. 482, 490-491.

2. The defendants contend that in addition to his charge on voluntary manslaughter the judge should have instructed the jury on involuntary manslaughter. In support of their contention they cite Commonwealth v. Campbell, 352 Mass. 387, 397, where this court said, "Involuntary manslaughter is an unlawful homicide, unintentionally caused (1) in the commission of an unlawful act, malum in se, not amounting to a felony nor likely to endanger life . . ., or (2) by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct." The only evidence of the manner in which Vadeikis died showed one or more intentional, forceful and deliberate kicks to his stomach as he was lying on his back. The unlawful battery was quite "likely to endanger life," and hence could not be classified under the first above described type of involuntary manslaughter. Plainly the result of the kicking, i.e., physical injury to the deceased, was intended as much as the kicking action itself. Hence, it cannot be termed merely a "disregard of probable harmful consequence." Compare Commonwealth v. Campbell, supra, 352 Mass. 387, 397-398.

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3. The defendants assign as error the latitude allowed the district attorney in his cross-examination of the defendant Hicks at a voir dire. Hicks testified in support of what must be termed a motion to suppress evidence based on his assertion that he was illegally arrested, interrogated and exhibited to witnesses. He related his version of the events surrounding and immediately following his arrest. On cross-examination, the district attorney was allowed to inquire of Hicks' activities throughout the day, before the time of the arrest. It was brought out that Hicks had been with Hubbard at the South Boston Cafe, and that the bartenders there had seen them. The defendants contend that this information was irrelevant to the purpose of the voir dire, and was relevant only to the guilt of the defendants.

The scope or extent of cross-examination is largely discretionary with the judge. Commonwealth v. Aronson, 330 Mass. 453, 458-459. Commonwealth v. Granito, 326 Mass. 494, 496. Commonwealth v. Nunes, 351 Mass. 401, 406. The judge allowed the prosecuting attorney to explore the earlier events of the day in order to ascertain whether, what and how much Hicks had been drinking, and consequently to determine the reliability of his recollection of the events at his arrest and later at the police station. Even if we were to assume that it was error to allow the questioning, there was no prejudice to either defendant. No statement made by Hicks under cross-examination at the voir dire was introduced before the jury. Compare Simmons v. United States, 390 U.S. 377, 394.

4. We are not disposed to modify the verdict under the principles stated and applied in Commonwealth v. Baker, 346 Mass. 107, 109.

5. Other assignments of error have been considered as required by G. L. c. 278, Section 33E. We find no error.

Judgments affirmed.