382 Mass. 12

September 10, 1980 - December 1, 1980

Worcester County


There was nothing in the record of a trial at which a defendant was convicted of murder in the second degree to warrant this court's exercise of its power under G. L. c. 278, Section 33E, to reduce the verdict to manslaughter. [13]

INDICTMENT found and returned in the Superior Court Department on February 13, 1979.

The case was tried before Travers, J.

After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

H. Hoover Garabedian for the defendant.

Daniel F. Toomey, Assistant District Attorney, for the Commonwealth.

BRAUCHER, J. The defendant was convicted of murder in the second degree on an indictment charging murder (comprehending murder in the first degree) committed on December 11, 1978. The sole issue presented on his appeal is whether we should exercise our power under G. L. c. 278, Section 33E, to direct the entry of a verdict of guilty of manslaughter. We transferred the appeal to this court on our own motion, and we affirm. See Commonwealth v. Davis, 380 Mass. 1 , 16-17 (1980).

It is undisputed that the defendant, the victim, and others were present in a Salvation Army alcoholic drop-in center in the afternoon of December 11, 1978, that the defendant, the victim, and one or two others went outside, and that the victim suffered a stab wound from his own

Page 13

knife, from which he later died. The prosecution introduced evidence that while the victim was lying on the ground the defendant kicked him, took the knife and a sheath from the victim's belt, started to walk away, and then went back and stabbed the victim in the stomach. Other versions of the incident varied. The defendant testified that he was an alcoholic and had been drinking, that he invited the victim outside to fight and was not afraid of the victim, that he followed the victim outside and hit him in the head, that the victim drew the knife and the defendant grabbed for it, that both men fell, and that the defendant then saw the handle of the knife protruding from the victim's stomach.

We have reviewed the entire case as required by Section 33E, and we conclude that it was fairly presented to the jury and that the jury's choice of a verdict of murder in the second degree as against a verdict of manslaughter was quite understandable and reasonable. See Commonwealth v. Ravida, 371 Mass. 243 , 248 (1976). The jury could find that when the victim was lying on the ground there was no such reasonable apprehension on the part of the defendant as we found in Commonwealth v. Jones, 366 Mass. 805 , 808-809 (1975). The case bears some resemblance to Commonwealth v. King, 374 Mass. 501 (1978), where we reduced the charge from murder in the first degree to murder in the second degree.

Judgment affirmed.