COMMONWEALTH vs. WILLIE F. SMITH.

HENNESSEY, C.J. The defendant, Willie F. Smith, was tried to a jury, along with two codefendants, for the murder of one Edward Shaw in Springfield on June 11, 1972. On February 17, 1973, the jury returned a verdict of guilty of murder in the second degree against the defendant, and he was sentenced to life imprisonment. On February 21, 1973, the defendant filed a motion for a new trial and a claim of appeal. The appeal was not perfected and was later dismissed. The motion for a new trial was denied on June 17, 1974, by the trial judge.

On June 21, 1979, the defendant filed a second motion for a new trial. The trial judge, after a hearing, denied this

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motion on August 21, 1979, and it is this denial which is the subject of this appeal. In the absence of constitutional error, the granting of a motion for a new trial is addressed to the sound discretion of the trial judge. Commonwealth v. Horton, 376 Mass. 380, 401 (1978). The defendant asserts that there was constitutional error in the judge's instructions to the jury. We conclude that there was no error.

The homicide occurred at the R & P Restaurant in Springfield on June 11, 1972. The Commonwealth offered as its principal witness Mrs. Esther Shaw. The victim Edward Shaw was the brother-in-law of Mrs. Shaw. Mrs. Shaw and her husband Henry owned the restaurant. They were working at the restaurant, along with Edward Shaw and John Carroll, at the time of the shooting. Mrs. Shaw testified that at approximately 10 P.M. on June 11, 1972, Willie F. Smith entered the kitchen of the R & P Restaurant. Shortly after this, Hubert Bonds and Willie J. Scott also walked into the kitchen.

Mrs. Shaw testified that a conversation took place between her and Smith while they were in the kitchen. Scott then pulled out a gun. Both Smith and Bonds also pulled out guns. Henry Shaw then left the kitchen, and as he was leaving he handed a gun to Edward Shaw, who was entering the kitchen.

Mrs. Shaw testified that Bonds then shot at Edward Shaw, and Shaw fell to the floor. Furthermore, she testified that after the first shot, Smith said to Bond: "Kill that son-of-a-bitch." Bonds walked over to Edward Shaw and shot him once again. Bonds, Smith, and Scott then left the restaurant. Mrs. Shaw picked up the gun which was at Edward Shaw's side. Mrs. Shaw fired a shot into the area above the kitchen door. She then ran into the street where she fired the gun until it was empty.

Bonds testified before the jury that he went to the R & P Restaurant on June 11, 1972, along with Smith and Scott, in order to buy liquor. Bonds stated that while he was in the kitchen purchasing liquor, Edward Shaw pointed a gun at Bonds and fired it twice. Bonds stated that he fired his gun in return.

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Smith testified before the jury that he was not in the kitchen at the time of the shooting. Furthermore, Smith stated that when the shooting started, he left the restaurant by way of the front door. Smith testified that he was joined outside by Bonds and Scott, and the three men drove away in Scott's car. Bonds was driven to the Wesson Memorial Hospital where he was treated for a gunshot wound to the left arm. A ballistics expert testified for the Commonwealth that in his opinion the spent projectile removed from Bonds' left arm was fired from Bonds' gun.

The single contention of Smith is that, in the charge to the jury as to reasonable doubt, the judge drew an analogy between proof beyond a reasonable doubt and the making of important decisions in the personal lives of the jurors. [Note 1]

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Further, he maintains that the judge erroneously included specific examples of these personal decisions. Smith relies principally upon Commonwealth v. Ferreira, 373 Mass. 116 (1977), where we reversed a judgment of conviction and ordered a new trial for the defendant upon the reasoning, inter alia, that specific examples were recited in the jury instructions which, "far from emphasizing the seriousness of the decision before [the jurors], detracted both from the seriousness of the decision and the Commonwealth's burden of proof." Id. at 129.

It is true that jury instructions on proof beyond a reasonable doubt which include examples of decisions in the jurors' own experience may be so inadequate as to be constitutional

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error. This was so in Commonwealth v. Garcia, 379 Mass. 422, 440-441 (1980). [Note 2] Although the trial of the instant case occurred about four years before the Ferreira decision, it is also true, contrary to the Commonwealth's argument, that we have held that our decision in Ferreira is to have retroactive effect. Commonwealth v. Garcia, supra at 441 (1980), citing In re Winship, 397 U.S. 358 (1970), made retroactive Ivan V. v. New York, 407 U.S. 203 (1972). However, we have never held nor do we now hold, that the use of specific examples necessarily imports error, constitutional or otherwise.

The Commonwealth argues, first of all, that if there was error in the charge, the evidence of Smith's guilt was so substantial that, beyond a reasonable doubt, the error could not have contributed to the guilty verdict, and that it was therefore harmless. Cf. Commonwealth v. Garcia, supra at 441-442. We need not pursue this argument further because we conclude, after examining the charge in its entirety, that there was no error.

We have repeatedly said that to determine whether a definition of reasonable doubt accurately conveys the meaning of the term, it is necessary to consider the charge as a whole. Commonwealth v. Watkins, 377 Mass. 385, 388, cert. denied, 442 U.S. 932 (1979). Commonwealth v. Grace, 376 Mass. 499, 500-501 (1978), denial of habeas corpus aff'd sub nom. Grace v. Butterworth, No. 79-1422 (1st Cir. Feb. 5, 1980), on rehearing, 635 F.2d 1 (1st Cir. 1980). Commonwealth v. Gilday, 367 Mass. 474, 497-498 (1975). Commonwealth v. Bumpus, 362 Mass. 672, 682 (1972), judgment vacated and remanded on other grounds, 411 U.S. 945 (1973), aff'd on rehearing, 365 Mass. 66 (1974), reviewed on petition for habeas corpus, sub nom. Bumpus v. Gunter, 452 F. Supp. 1060 (D. Mass. 1978). Upon such examination, in some cases, we have found no error despite the use

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of examples of major decisions made in the lifetimes of the jurors. Commonwealth v. Grace, supra at 500-501. Commonwealth v. Coleman, 366 Mass. 705, 712 (1975). Commonwealth v. Ferguson, 365 Mass. 1, 12 (1974). Commonwealth v. Cresta, 3 Mass. App. Ct. 560, 565-566 (1975).

Taken as a whole, the instructions in this case were based on traditional and acceptable language, and properly informed the jury of the burden of proof incumbent upon the Commonwealth. There was emphasis on moral certainty as a definition of the Commonwealth's burden, in language substantially similar to instructions which we have approved in the past. Commonwealth v. Webster, 5 Cush. 295, 320 (1850). Commonwealth v. Seay, 376 Mass. 735, 745-746 (1978). Commonwealth v. Grace, supra at 500-501 (1978). There was other acceptable and appropriate language of definition. In these respects the instructions here were unlike those in the Ferreira and Garcia cases, supra, where the specific examples constituted virtually the entire instructions defining proof beyond a reasonable doubt and the Commonwealth's related burden of proof. Although we emphasize once more that the use of such examples in instructing the jury is inappropriate, we think the charge here has the saving features of the Ferguson, Coleman, and Grace cases. See Commonwealth v. Ferreira, 373 Mass. 116, 129 (1977). Consequently, unlike Ferreira and Garcia, the charge here did not so trivialize the concept of proof beyond a reasonable doubt as to require reversal of the conviction.

"An appeal of a motion for a new trial is not an occasion for our consideration of the case under G. L. c. 278, Section 33E." Commonwealth v. Nolin, 373 Mass. 45, 52 (1977). Further, our function under G. L. c. 278, Section 33E, has been limited by c. 346, Section 2, of St. 1979, which took effect after the murder and the trial but before this appeal. However, we have already decided that the old version of Section 33E is applicable to an appeal where the offense resulting in a second degree murder conviction upon an indictment in the first degree was committed before July 1, 1979. Commonwealth

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v. Davis, 380 Mass. 1, 12-17 (1980). See Commonwealth v. Hodge (No. 2), 380 Mass. 858, 867 (1980). Therefore we have reviewed the law and the entire record in the usual manner. We find nothing which calls for the exercise of our extraordinary power to order a new trial or reduce the verdict in the instant case.

Order denying motion for a new trial affirmed.