On this petition for a writ of error which comes to us by reservation and report of the single justice, we need consider only whether the rule enunciated in Bruton v. United States, 391 U.S. 123 (May 20, 1968) is applicable, and, if applicable, is decisive. The petitioner's convictions of murder in the second degree and of conspiracy were reviewed and upheld in Commonwealth v. Dougherty, 343 Mass. 299 (1961). The Bruton case had not then been decided. The rule of the Bruton case was, however, given retroactive application in Roberts v. Russell, 392 U.S. 293 (June, 1968). Tested by that rule, the petitioner's convictions cannot stand. Police officers testified to a statement incriminating the petitioner made to them in the petitioner's absence by one Polcaro then a codefendant. Polcaro did not testify. 343 Mass. 299 , 300-302. The limiting instructions given by the judge, viewed retrospectively under the Bruton rule, were as matter of law unavailing. It is difficult for us now to say to the degree of certainty required (see Harrington v. California, 395 U.S. 250) from a rereading of the record that the retroactive error was harmless.
Under an indictment charging murder in the second degree the defendant was found guilty of manslaughter. Presumably because the defendant had lost his right to come here by appeal under G. L. c. 278, Sections 33A-33G, the judge reported certain questions arising out of the trial for the determination of this court. Of the questions reported we shall deal only with those argued by the defendant. 1. The indictment, which was in the form prescribed by G. L. c. 277, Section 79, was read to the jury by the clerk. The defendant complains of the words in the indictment which allege that ". . . the jurors further say that the defendant is guilty of murder in the second degree and not in the first degree" (emphasis supplied). Shortly after the reading of the indictment the judge instructed the jury that the words complained of meant no more than that the defendant was accused of murder in the second degree, and that it was for them to determine the defendant's guilt at the conclusion of the case (emphasis supplied). There was no error. See Commonwealth v. Chase, 350 Mass. 738 , 740. 2. The defendant argues that the judge did not properly or adequately instruct the jury either (a) as to the Commonwealth's burden of proof or (b) concerning the defendant's failure to testify. From a careful reading of the charge, we are satisfied that it was accurate and fair with respect to both of these subjects. 3. The defendant contends that the judge erroneously charged that a verdict of manslaughter should be returned. This contention is completely without merit. The judge gave the jury the options to bring in the following verdicts: guilty of murder in second degree, guilty of manslaughter, or not guilty. In short, the questions reported which the defendant now presses
reveal no error in the conduct of the trial. In view of the inept form of the questions reported, we have been unable to answer them except as above indicated. The case is remanded to the Superior Court.