In this indictment for murder the jury found the defendant guilty of murder in the first degree of his wife Marilyn and recommended that the death sentence be not imposed. See G. L. c. 265, § 2, as amended. The case comes here on appeal, with a summary of the record, a transcript of the evidence, and an assignment of errors under G. L. c. 278, §§ 33A-33G, as amended.
There wаs evidence of the following: The defendant and Marilyn were married on June 18, 1958. She was fifteen *484 years old and he was eighteen. Two children were born of the marriage. The marriage resulted in two separations. The first occurred in late 1960 and the second on January 2, 1962, when Marilyn went to live in a house owned by Charles L. Seavey, Jr. Others living in the house included Mr. and Mrs. Mitchell and their two children, and Wayne Seavey, the nineteen year old son of Charles. Late in January the two Hartford children, who had been living with their father (the defendant) and his parents, went to live with their mother. On numerous occasions there were telephone conversations between the defendant and his wife in which the defendant pleaded with her to return to him. On one occasion Marilyn told the defendant that “ [t]here is always a bunch of big boys down there [Seavey’s house] to take care of . . . [her] ” in case of trouble.
On February 1, 1962, the defendant telephoned his wife at noon and she informed him that the children were going to remain with her. He left work at 1:30 p.m. and spent some timе with Robert Tuck during which he bought six shotgun shells. He took one of his father’s cars and drove to his mother’s house. He called his wife several times and told her he was coming for the children. He then drove to the Seavey house, presumably to get them. He brought with him a shotgun loaded with the shells bought that day. Upon arriving there he parked his automobile at the side of the house and sounded the horn. Marilyn came out of the house and proceeded toward the car. An argument ensued and the Seaveys and Mrs. Mitchell heard loud voices or screams. At this point the evidence is somewhat confused. Marilyn screamed, “Charlie, Charlie.” Charles Seavey started out the front door and at the same momеnt Hartford (who was also called Charlie) fired one shot 1 from the car, then a second, and possibly a third.
*485 Marilyn was hit in the hack by “two distinct patterns of pellets” of No. 4 bird shot. One of these patterns struck her in the upper back, and the second struck her in the buttocks and legs. When shot Marilyn was about eight yards from the defendant’s car. Charles Seavey was also hit by one of the blasts.
The defendant then drove his automobile away from the scene of the shooting, left his automobile, and went into some nearby woods where, in an attempt to shoot himself, he shot away part of the left side of his face. He was found in a nearby house and a trail of blood led to his shotgun which was found in a clearing in the woods. A discharged shotgun shell was found on the floor of the defendant’s car. A second empty shell was found in front of the Seavey house, and a third expended shell was found in the chamber of the gun. All of these shells were twelve gouge shotgun shells loaded with No. 4 bird shot and were of the same kind and type which the defendant had purchased earlier that day.
1. Under assignments of error numbered 25, 26, and 40-42 the dеfendant argues that the Commonwealth’s opening contained statements of expected evidence which were prejudicial to him. The prosecutor told the jury that Robert Tuck, a witness, would tell them about a conversation that he had with the defendant in which the defendant told Tuck that he was going to kill his wife and that Tuck would testify that the defendant said to him, “I’m going to get my wife one way or the other.” He also told the jury that Noyes, the man from whom the defendant purchased the shotgun shells, would testify that the defendant asked him *486 which of the two types of shells (No. 6 or No. 4), was the more dangerous and, when informed that the No. 4 shells were “heavier” and “would do the biggest damage,” he purchased them. Nеither Tuck nor Noyes testified in accordance with the opening.
The alleged impropriety of the opening was raised by the defendant in various ways but the basic question is the same.
2
We are of opinion that there was no error. The prosecutor in his closing argument expressly withdrew the statement with respect to Tuck’s testimony and askеd the jury to “erase it from . . . [their] mind.” “As a general-rule, counsel is free to state in his opening anything that he expects to be able to prove by evidence.”
Commonwealth
v.
Clark,
2. Another group of assignments of error (Nos. 3-17) presents the question of the propriety of certain questions put in direct examination to Tuck, a witness called by the Commonwealth. These questions sought to elicit from Tuck the matters referred to in the Commonwealth’s opening, namely, whether the defendant had told him on the day of the shooting that he intended to kill his wife. Tuck, when interrogated as to this alleged conversation, stated that he did not remember. He was then shown a written *487 memorandum of the conversation to refresh his recollection but Tuck, who could not read, stated that the writing did not аid his memory. Having exhausted Tuck’s memory, the prosecutor was permitted to put, subject to the defendant’s exception, a series of leading questions which asked him whether the defendant had told him that he was going to kill his wife.
The defendant argues that these questions amount to cross-examination by the Commonwealth of its own witness and exceeded permissible limits. The further contention is made that the interrogation amounted to an impeachment of the witness in violation of G. L. c. 233, § 23.
3
Neither of these contentions can be sustained. There was no violation of § 23, for there was no attempt to “impeach his credit by evidence of bad character. ” Nor was there any attempt tо contradict him by prior inconsistent statements. In view of Tuck’s lack of memory this would not ordinarily be permissible.
Langan
v.
Pianowski,
3. Shirley Mitchell, who lived at the Seavey home at the time of the shooting, when called by the Commonwealth was permitted to testify to certain telephone conversations with the defendant. When this evidence was admitted, she had stated that she recognized the defendant’s voice. Howеver, on cross-examination she admitted that although the speaker purported to be the defendant and although she had received other calls from him she did not know the defendant and had never talked face to face with him. At *488 this point counsel for the defendant moved that these conversations be stricken and the motion was denied. There was no error.
Of course, the mere fact that the speaker said he was the defendant was not enough to render the conversation admissible.
Bond Pharmacy, Inc.
v.
Cambridge,
4. The defendant argues (assignment of error No. 43) that his rights were impaired because there was no compliance with G. L. c. 123, § 100A, the so called Briggs law. That there is nothing in this contention is squarely decided by
Commonwealth
v.
Vallarelli,
5. The defendant excepted to the denials of two motions for directed verdicts of not guilty. The first, which was made at the close of the Commonwealth’s opening, need not concern us, for a judge cannot be required to direct a verdict on an opening.
Perry
v.
Carter,
6. The judge did not err in charging the jury that there was no evidence of self defence. Assignment No. 49. There was no evidence that either of the Seaveys or Marilyn was armed. The most that the еvidence would show is the possibility of fear on the part of the defendant that Charles Seavey might assault him when he reached the automobile in which the defendant was sitting. And there is no evidence that Seavey ever got very close to the defendant’s car. 4
There is no evidence of any threats made by either Charles Seavey or Mаrilyn immediately prior to the shooting. And it is reasonable to infer that the defendant could easily have placed himself out of danger by driving away. “In order to create a right to defend oneself with a dangerous weapon likely to cause serious injury or death, it must appear that the person using the weapon had a reasonablе apprehension of great bodily harm and a reasonable belief that no other means would suffice to prevent such harm. . . . The right of self defence does not accrue to a person until he has availed himself of all proper means to avoid physical combat. ...”
Commonwealth
v.
Houston,
7. The defendant urges (assignment of error No. 50) that it was error for the judge to charge that there was no evidence which would warrant a verdict of manslaughter. We do not agree. “ [Manslaughter . . . [is] ‘a killing from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat. ’ ”
Commonwealth
v.
Soaris,
There was, to be sure, evidence that the defendant feared an assault from Charles Seavey but all three shots were fired before Seavey, who was unarmed, got near the car. Moreover, two of the shots hit Marilyn in the back as she left thе side of the car and, finally, there was no evidence that the defendant could not have easily avoided any possible danger by driving away. The evidence fails to establish a provocation of the sort which would reduce the killing to manslaughter.
8. Other matters require brief comment. Despite the defendant’s contention to the contrary, the judge did not charge on the facts. His charge to the jury on the question of insanity was in accordance with the principles laid down in
Commonwealth
v.
Chester,
9. We have examined the entire record and have сarefully considered all of the contentions of the defendant in the light of our duty under G-. L. c. 278, § 33E, as amended by St. 1962, c. 453, and are of opinion that justice does not require a new trial; nor does it permit the entry of a verdict of a lesser degree of guilt.
Judgment affirmed.
Notes
The version from each of the witnesses is as follows: The defendant states that after the screаm “I saw the big Seavey come running at me” and further states that he does not remember anything after that. The defendant later admitted that he was not sure who was coming at him.
Charles Seavey states that just as he got out the door to the top of the doorstep he saw Marilyn catch one blast in the back and that he saw the flash *485 of the gun comе from inside the car. He states that he proceeded a few steps farther when a second shot was fired which hit him. Then he dove forward near a parked car as a third shot was fired.
Mrs. Mitchell’s story was less clear. First she said that she heard shots before Seavey went out the door. Then she said he was by the door on the first shot. She stated later that he was going out the door, and finally on cross-examination she indicated that he was outside before the first shot.
Wayne Seavey testified that he heard “No, Charley,” a scream and a bang and that at that moment ‘ ‘ [m]y father was just going out the door. ’ ’ Wayne followed his father out the door and heard a second blast while on the front steps with his father about ten feet off the steps. Wayne then heard a third “bang” and his father said, “Duck, Wayne.”
After the testimony of Tuck and Noyes motions were filed by the defendant that the prosecutor be instructed to withdraw the unsubstantiated statements. A motion for a mistrial was also presented, and a motion was made that the court instruct the jury to disregard these stаtements. All of these motions were denied.
‘ ‘ The party who produces a witness shall not impeach his credit by evidence of bad character, but may contradict him by other evidence, and may also prove that he has made at other times statements inconsistent with his present testimony; but before proof of such inconsistent statements is given, the circumstances thereof sufficient to designate the particular occasion shall be mentioned to the witness, and he shall be asked if he has made such statements, and, if so, shall be allowed to explain them.”
Marilyn was shot eight yards from the defendant’s car and the evidence indicates that Seavey did not come as close as that.