COMMONWEALTH vs. ROBERT J. C. JONES.

TAURO, C.J. The defendant was convicted of murder in the second degree on an indictment charging him with murder in the first degree.

The defendant's appeal (G. L. c. 278, Sections 33A-33G) is based on two grounds: (1) "that the finding of malice, implicit in the murder verdict, was most inappropriate," and thus this court, in the proper exercise of its powers under G. L. c. 278, Section 33E, should either grant a new trial or order that the verdict be reduced to manslaughter; and (2) that the trial judge erred "by failing to charge the jury with specificity concerning evidence of the deceased's violent and quarrelsome character and evidence of threats of death made by the deceased to the defendant."

The pertinent evidence is summarized briefly. On the night of October 13, 1968, the victim was stabbed in the

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chest during an altercation with the defendant outside a cafe on Buffum Street, Lynn. The victim died at the Lynn Hospital shortly after as a result of the stab wound. The defendant told Officer Martin that he had been threatened by the victim with a razor and, "This is why I stabbed him." At the hospital a straight edge razor was found in the victim's pocket.

Earlier in the day, the defendant had had an argument with the victim at the same cafe. The victim was highly incensed at the defendant because a girl friend of the victim requested the defendant to drive her to Revere. The victim threatened the defendant with a razor. This argument was finally quieted down and the defendant left. He went fishing with his wife and children. Later that evening the defendant returned to the cafe for a "couple of beers" and there was another confrontation with the victim. They went out on the sidewalk and after some argument the victim struck the defendant a heavy blow on the jaw which sent him reeling backward several steps. The defendant claims the victim pulled out a razor and came at him and he then pulled out his knife and stabbed the victim in the chest. There was evidence that the victim was quite intoxicated and that the defendant had been drinking but was not drunk.

A police officer who witnessed the knifing testified that he did not see a razor but he did see the victim land a heavy blow on the defendant's jaw immediately before the knifing. There was evidence that the victim, who had a "reputation for his knife and his fight," was "very strong," "big," and a troublemaker. He was about six feet tall and weighed about 195 pounds. The defendant was five feet, eight inches, and weighed 140 pounds. There was evidence that the knife used in the killing was the defendant's fishing knife, which he carried with him every day.

General Laws c. 278, Section 33E, as amended through St. 1974, c. 457, provides in part, "In a capital case as hereinafter defined the entry in the supreme judicial court shall transfer to that court the whole case for its consideration of the law and the evidence. Upon such consideration

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the court may, if satisfied that the verdict was against the law or the weight of the evidence . . . or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt, and remand the case to the superior court for the imposition of sentence." In construing Section 33E, we have said, "That statute `consigns the facts as well as the law to our consideration, gives us the power and duty exercised by a trial judge on a motion for a new trial, and requires us to consider the whole case broadly to determine whether there was any miscarriage of justice.'" Commonwealth v. Williams, 364 Mass. 145, 150 (1973). Commonwealth v. Baker, 346 Mass. 107, 109 (1963). Commonwealth v. Ransom, 358 Mass. 580, 583 (1971).

Although the evidence was conflicting in several respects, a careful reading of the transcript and a weighing of the evidence, without the benefit of seeing the witnesses, Commonwealth v. Baker, supra, leads us to arrive at certain findings and draw certain inferences. The defendant and the victim had both done considerable drinking during the afternoon and evening of the homicide. The altercation was initiated by a nonsensical argument earlier in the day. Hours later, at a subsequent meeting of the victim and the defendant at the same cafe, the argument was resumed. It continued on the sidewalk outside the cafe and the victim struck the defendant a heavy blow on the jaw. In retaliation, the defendant attacked the victim with one blow of a knife which proved to be fatal.

As noted above, the defendant testified that he used his knife in self-defense when the victim came at him with a straight edge razor. If the jury had believed this evidence, in view of the prior threats by the victim and the undisputed fact that the victim first struck the defendant on the jaw, the jury would have been warranted in returning a verdict of not guilty. But we believe that the evidence as to the threat with a razor by the victim was not persuasive and that it was not accepted by the jury.

This still leaves the question whether there was malice in the defendant's attack on the victim so as rationally to

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support a verdict of murder or, in the alternative, whether justice requires the entry of a verdict of manslaughter pursuant to Section 33E. We think the question is very close. [Note 1]

In Commonwealth v. Williams, 364 Mass. 145 (1973), we held that, although the jury were warranted in their verdict, the thrust of the evidence required a reduction of a verdict of murder in the first degree to murder in the second degree to avoid a miscarriage of justice. Here, we think that, while the jury were warranted in returning a verdict of murder in the second degree, justice requires that we order entry of a verdict for manslaughter.

In addition to the evidence discussed above, the following considerations compel our decision to exercise our power pursuant to Section 33E. Although the victim and the defendant had been barroom acquaintances prior to the homicide, there was no evidence that they had had prior trouble. The arguments which precipitated the violent quarrel and subsequent fatal attack were senseless, undoubtedly the result of too much drinking. The defendant, who testified on his own behalf, was twenty-eight years of age at the time, married, with six small children and gainfully employed. There was no evidence introduced of any prior criminality on the part of the defendant to impeach his credibility. G. L. c. 233, Section 21. We assume there was none.

While we are not convinced that the defendant inflicted the fatal wound in the act of defending himself from an attack with a razor, we believe that the defendant at all times was reasonably apprehensive that the victim might

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use the razor which the defendant knew the victim possessed.

Ordinarily the use of a dangerous weapon in a killing is sufficient evidence of malice to constitute murder. "We believe, however, that justice will be more nearly achieved by concluding that the intention . . . [to attack with a knife] was formed in the heat of sudden affray or combat," Commonwealth v. Baker, 346 Mass. 107, 119 (1963); accord, Commonwealth v. Young, 326 Mass. 597, 601 (1950), thus negating the necessary element of malice.

This case is clearly distinguishable from recent cases in which we have refused to exercise our power to reduce a verdict under Section 33E. Commonwealth v. Pratt, 360 Mass. 708, 715 (1972). Commonwealth v. Deeran, 364 Mass. 193, 196-197 (1973). Commonwealth v. Nordstrom, 364 Mass. 310, 311-313 (1973). Commonwealth v. Rooney, 365 Mass. 484, 495-496 (1974). Commonwealth v. Stillwell, ante, 1, 4-6 (1974). In these cases we held that the interest of justice did not require an order changing the verdict of the jury. Each case involved a situation where the defendant, after an initial confrontation, left to procure a weapon and then returned to kill the victim. In none was the element present of fear of sudden attack or aggression immediately preceding the killing. In the instant case, the great weight of the evidence tended to establish that the killing was not premeditated or carried out with malice aforethought. For this reason we deal with it as the exceptional case where we will exercise our authority under G. L. c. 278, Section 33E.

We are of opinion that a verdict of manslaughter should be entered. In so stating, we are mindful that after the jury's verdict, the defendant moved to have the judge reduce the verdict from second degree murder to manslaughter.

In denying the motion the judge properly ruled that it was not within his power to allow the motion. [Note 2] Similarly, in

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denying the defendant's motion for a new trial the judge below was not empowered to act, as we are, under the provisions of G. L. c. 278, Section 33E. Commonwealth v. Baker, 346 Mass. 107 (1963). Commonwealth v. Williams, supra.

As to the other assignment of error concerning the judge's instructions to the jury, it is clear that the jury were fully and clearly instructed as to all aspects of the case and there was no error.

The case is remanded to the Superior Court where the verdict of murder in the second degree and the sentence previously imposed are to be vacated. A verdict of guilty of manslaughter shall be entered and sentence imposed.

So ordered.