COMMONWEALTH vs. THOMAS F. MCINERNEY.
Supreme Judicial Court of Massachusetts
Norfolk.
January 6, 1977. — July 28, 1977.
373 Mass. 136
Present: HENNESSEY, C.J., QUIRICO, KAPLAN, WILKINS, & LIACOS, JJ.
Accordingly, there was no error in the denial of the defendant‘s motion for a directed verdict.
Judgment of the Superior Court affirmed.
Homicide. Malice. Evidence, Acceptance or rejection of testimony, Admissions and confessions, Presumptions and burden of proof. Practice, Criminal, Charge to jury. Insanity. Words, “Deliberately premeditated malice aforethought.”
At a murder trial evidence that the defendant intentionally put a cord around the victim‘s neck and applied force until he saw blood come out of her nose and mouth, without any lawful excuse or justification for his acts, was sufficient to permit the jury to find the malice required for murder in the first or second degree, even though the
There was no error in a judge‘s instructions to the jury at a murder trial on the subjects of malice and the burden of proof even though the judge referred on occasion to the “presumption” of malice. [148-151]
At a murder trial, evidence that the defendant had sought medical treatment for impotence, that he told a friend, “I don‘t fit in this world and they‘re going to lock me up,” and that he had taken some pills was not sufficient to require instructions to the jury on the defense of insanity. [151-153]
Where evidence at a murder trial was insufficient to support an inference or finding of deliberate premeditation on the part of the defendant, the judge erred in denying the defendant‘s motion for a directed verdict of acquittal on so much of the indictment as charged murder in the first degree. [153-154] HENNESSEY, C.J., dissented in part.
INDICTMENT found and returned in the Superior Court on October 4, 1974.
The case was tried before McNaught, J.
Stephen L. Saltonstall for the defendant.
David L. Trainor, Special Assistant District Attorney, for the Commonwealth.
QUIRICO, J. The defendant was indicted for the crime of murder in the first degree of Cynthia M. Hartford (victim). The case was submitted to the jury with instructions by the trial judge that they could return one of four alternate verdicts: not guilty, guilty of murder in the first degree, guilty of murder in the second degree, or guilty of manslaughter. The jury returned a verdict of guilty of murder in the first degree, whereupon the defendant was sentenced to imprisonment for life, the sentence to be served from and after a life sentence which he was then serving.1 The case is now before us on the defendant‘s appeal under
The appeal raises four issues with respect to which the
We conclude that there was error in the judge‘s denial of the defendant‘s motion for a directed verdict of acquittal on so much of the indictment as charges murder in the first degree and that he is entitled to a reduction of the verdict to one of guilty of murder in the second degree, that there was no error by the judge in any other respect, and that the defendant is entitled to no relief under
There was an abundance of evidence implicating the defendant in the killing of the victim. Most of it was in the form of admissions made by the defendant to a number of his friends and acquaintances in the first two days following the killing and repeated by them in their testimony as witnesses at the defendant‘s trial.2 The following is a brief summary of the evidence.
The defendant and the victim met at a lounge in Boston about 6:30 P.M. on August 14, 1974, and they were there together until they left about 1 A.M. on August 15, 1974. During that period the defendant drank about six
The victim laughed at the defendant and told him she had wasted her evening. He asked her to stop laughing at him and she continued, so he put his hand over her mouth to stop her. She still continued to laugh and he slapped or struck her. She started to yell and tried to leave. He then grabbed a piece of cord or twine from a table, wrapped it around her neck, and applied pressure. He saw blood coming from her nose and mouth and thought he had killed her. He put her body on a couch and then left the apartment.
In leaving the apartment the defendant wiped the doorknob to eliminate fingerprints and took with him the empty beer cans and the victim‘s pocketbook. He disposed of the victim‘s automobile driving license and the keys to her apartment and automobile by throwing them away in some tall grass and shrubbery at the rear of the apartment complex where he lived. The police found the items there on August 19, 1974.
A medical expert attributed the death of the victim to “asphyxia due to strangulation by ligature,” and he expressed the opinion that her death had occurred sometime between 1 A.M. and 1 P.M. on August 15, 1974.
In the late afternoon or early evening of August 17, 1974, the defendant, accompanied by four of his friends, was driven to the home of an officer of the Quincy police department and turned himself in and was placed under arrest.
Additional evidence will be summarized, as necessary, in the discussion of the several errors alleged by the defendant.
We dispose of the second part of the defendant‘s argument by saying that, if there was any evidence from which the jury could infer malice, it was not error for the judge to refuse to limit the jury verdicts to either one of not guilty or one of guilty of manslaughter. However, in such a situation it would be appropriate for us to consider that matter in the review of the entire case, both as to fact and law, under the mandate of
At the outset of our consideration of the first part of the defendant‘s argument, we take note of what is meant by the words “malice” and “malice aforethought” as part of the definition of murder. It is appropriate that we do so because of the defendant‘s emphasis on evidence which he contends indicates the absence of any ill will or hostility on his part toward the victim and also the absence of any intention to kill or harm the victim.
“The argument of the defendant that there was no evidence of malice or ‘ill will’ on the part of the defendant toward the victim, and that this therefore precluded a verdict of guilty of murder in the second degree, betrays a basic misunderstanding of the meaning of ‘malice aforethought’ employed with respect to the crime of murder in this Commonwealth. Malice aforethought does not necessarily require a showing of ill will toward the victim. Rather it comprehends any intent to inflict injury without legal justification or palliation.” Commonwealth v. Festa, 369 Mass. 419, 424 (1976). “If there was an intention on the part of the defendant to inflict injury upon the deceased which was not justified on any lawful ground or palliated by the existence of any mitigating circumstances, that intention was malicious within the meaning of the
The defendant‘s contention that there was no evidence from which the jury could find malice is based on the fact that the Commonwealth‘s only proof of the homicide consisted of the defendant‘s admissions which were coupled with denials by him of any intention to hurt or kill the victim. He contends that the Commonwealth thus failed to prove malice, and that it has instead actually proved
The defendant does not question the general rule that “[t]he credibility of witnesses is ordinarily entirely for the fact finding tribunal ... [and that c]ommonly how much or how little of the testimony of a witness is to be believed is for the jury.” Commonwealth v. Davis, 284 Mass. 41, 51 (1933), and cases cited. In the application of that rule to civil cases this court has held that the jury “would have ... the right to accept ... [a party‘s] admissions, and to reject that part of her testimony which was favorable to herself.” Jefferds v. Alvard, 151 Mass. 94, 95 (1890). Limoges v. Limoges, 287 Mass. 260, 261 (1934).
The same rule has been applied in criminal cases. In Commonwealth v. Holiday, 349 Mass. 126, 129 (1965), where the defendant contended that the jury had to accept his testimony on a point “in its entirety or not at all,” we said: “The Commonwealth need not accept the dilemma posed by the defendant. It is entitled, as is the defendant, to the verdict of the jury based upon all the evidence in the case.... It is elementary that the acceptance or rejection of oral testimony, in whole or in part, is within the exclusive province of the jury.... [T]he jury were not obliged to consider the evidence with the restriction argued by the defendant.” The Holiday opinion was cited with approval in Commonwealth v. Barnes, 369 Mass. 462, 465 (1976), where we said: “The jury were free to disbelieve all or part of the self-serving out-of-court statements of the defendant.”
In at least two homicide cases we have rejected arguments by defendants that, because the Commonwealth had offered in evidence statements by the defendant as
In Commonwealth v. Noxon, 319 Mass. 495 (1946), the defendant requested an instruction that “[t]he Commonwealth having introduced as part of its case statements of the defendant as to happenings, observations and state of mind, and there being no evidence contradicting them, the Commonwealth is bound by those statements, observations and testimony.” In upholding the trial judge‘s denial of that request we said, at 547-548: “It was for the jury to determine the weight to be given to the statements of the defendant. They were not obliged to accept or reject his statements in their entirety, but could give credence to only such portion as they deemed trustworthy,” citing Commonwealth v. Goldenberg, 315 Mass. 26, 30 (1943).
In Commonwealth v. Goldenberg, 315 Mass. 26 (1943), the defendant was convicted of murder in the second degree of his girl friend. The victim died from numerous stab wounds inflicted on her while she was seated with the defendant in his car. The defendant maintained that a robber committed the murder after knocking him unconscious. In that case, as in the present one, the defendant argued that it was error to refuse to direct a verdict of not guilty of murder. This court said, at 30: “If the jury adopted the substance of these statements [by the defendant], they would be bound to come to the conclusion that the murder was committed by a robber. On the other hand, if all these statements were entirely discredited by the jury and if they were wholly eliminated from the case, there would be little left to support this conviction. The jury, however, were not required to accept or reject these statements in their entirety, but they could give credence to such portions as they found trustworthy.”
“[I]n this Commonwealth there is now no rule that a witness must be believed simply because he is not impeached and tells a plausible story. The jury decide that question uncontrolled.” Commonwealth v. McNeese, 156 Mass. 231, 232 (1892). Perry v. Hanover, 314 Mass. 167, 170 (1943) (“[E]ven testimony that is ‘undisputed’ or ‘uncontradicted’ need not necessarily be believed“). Lydon v. Boston Elevated Ry., 309 Mass. 205, 206 (1941). Sullivan v. Old Colony St. Ry., 200 Mass. 303, 309 (1908). Lindenbaum v. New York N.H. & H.R.R., 197 Mass. 314, 323 (1908). See Jones v. Commonwealth, 331 Mass. 169, 171-172 (1954).
“Without doubt occasions arise where the interpretation to be given to particular testimony is matter of law, and where a jury cannot properly be permitted to wrest part from a clear and consistent context so as to attribute to a witness a statement which he did not make.” Lowell v. Boston Storage Warehouse Co., 280 Mass. 234, 237 (1932). Cf. Marquandt v. Boston Young Women‘s Christian Ass‘n, 282 Mass. 28, 31-32 (1933). This is not such a case. Rather it is a case where the jury could believe a part and disbelieve a part of the defendant‘s statements without distorting or mutilating any integral portion of the statements. Woods v. DeMont, 322 Mass. 233, 235 (1948). Hill v. West End St. Ry., 158 Mass. 458, 460 (1893).
There was sufficient evidence in this case to permit the jury to find that the defendant intentionally put a cord around the neck of the victim and applied force until he saw blood come out of her nose and mouth, that according to common experience there is a plain and strong likelihood that death will follow such acts, and that there was no lawful excuse or justification for his acts. From those acts the jury could properly infer malice within the meaning of that word when used with reference to murder. We assume, without deciding, that the defendant‘s various statements in which he admitted the homicide included additional language which, if believed, would have permitted the jury to conclude that the killing was without malice and therefore not murder. See Bedder v. Director of Pub. Prosecutions, [1954] 1 W.L.R. 1119 (H.L.). Yet the jury were not required to believe that additional language, and if they chose to disbelieve it the remaining evidence was still sufficient to permit them to infer that
The defendant‘s argument on the present point rests almost entirely on the decision of the Appeals Court in Commonwealth v. Johnson, 3 Mass. App. Ct. 226 (1975), where, in circumstances somewhat similar to those in the present case, it was held error to deny a motion for a directed verdict of acquittal of so much of the indictment as charged murder. We decline to adopt or follow the reasoning in that case. The Johnson case and the present case may be distinguishable because of the significant difference in the state of the evidence before the jury in each case when the Commonwealth rested and the motion for a directed verdict of not guilty of murder was filed and denied. In the Johnson case a police officer testified regarding the defendant‘s statement that the victim had instigated a fight and attacked the defendant with a knife, whereupon the defendant obtained a knife from some undisclosed source and stabbed the victim. In the present case the statement by the defendant admitting the killing of the victim included no claim of self-defense or other justification. However, our decision not to follow the reasoning of the Johnson case is not based on that difference in evidence.
We disagree for the more basic reason that by the Johnson opinion the Appeals Court has sought to introduce to the law of this Commonwealth an exception to the long-settled principles that a jury are permitted to infer malice from the proof of an intentional homicide, and that if there is evidence which, if believed, would negate such an inference, the jury have the sole power to believe or disbelieve any or all such evidence.
The Appeals Court correctly stated the general rule that “[t]he characteristic distinction between murder and manslaughter is malice ... [and that where] testimony is adduced which shows ... circumstances [of palliation or mitigation], the jury may believe the testimony, and return a verdict of manslaughter, or disbelieve the testimony, and return a verdict of murder based on the inference of malice drawn from the intentional homicide.”
The principal reason given by the Appeals Court for the exception seems to be contained in the following language: “The circumstances of mitigation or palliation were an integral part of the defendant‘s admission. There was ... no basis (such as inconsistency or implausibility) upon which the jury might justifiably have accepted the portion of the [defendant‘s] transcribed statement which admitted the stabbing but rejected the portion which described the factual context in which it occurred. The Commonwealth was not bound by the evidence of palliating circumstances it introduced; but as it introduced nothing to contradict that evidence, and nothing other than that evidence to show that the defendant intentionally killed ... [the victim], it has not proven the existence of malice, but has only proven the absence of malice.” Id. at 233.
Evidence of an intentional killing by the defendant, absent any evidence of justification, is sufficient to permit the jury to infer that it was a killing with malice — i.e., murder in the second degree. Is the evidence any less sufficient for that purpose if there is added thereto a statement or statements made by the defendant claiming justification or mitigation, which statements the jury may believe or disbelieve in whole or in part as they see fit? Can a defendant‘s addition of self-serving exculpatory statements by way of justification or mitigation, after admitting an intentional homicide, reduce the crime inferable from his admission from murder in the second degree to manslaughter? Does a hopper full of evidence that a defendant committed an intentional homicide without justification contain less evidence to permit a finding of malice and therefore murder than does a hopper which in addition thereto contains self-serving exculpatory statements by the defendant which the jury may disbelieve in their en-
In Commonwealth v. Gagne, 367 Mass. 519, 522 (1975),4 we said: “It has long been recognized in this Commonwealth that malice may be inferred from the intentional use of a deadly weapon.... The existence of malice may be rebutted ... by showing ... [justification or mitigation]. It does not necessarily follow, however, that where there is any evidence of mitigating circumstances, the inference of malice is rebutted. Such a holding would, in effect, require the Commonwealth to prove actual malice in any case where there is any evidence of mitigating or justifying circumstances. This has never been the law of the Commonwealth....” See Commonwealth v. Greene, 372 Mass. 517, 520 (1977). Commonwealth v. Johnson, 372 Mass. 185, 192 (1977).
The effect of recognizing the “exception” in the Johnson case would be to give conclusive effect to the defendant‘s self-serving attempt at justification or palliation of his crime, and would give it primacy over the inference of malice which the jury are permitted to draw from the crime itself in preference to the defendant‘s statements. Applying such a rule would be an incursion on the exclusive prerogative of the jury to decide the facts of the case. That the evidence consists of a statement made by the defendant would not alter the result.5 In short, we decline
2. Instructions to jury on malice. The pertinent portion of the judge‘s charge to the jury on the subject of malice included the following statements which the defendant has singled out for criticism: “Where an unlawful killing is intentional or purposeful, there may be circumstances which will rebut the presumption of malice and reduce the character of that unlawful killing from murder to manslaughter.... When a killing is caused by the intentional use of a deadly weapon, malice may be inferred, unless by the circumstances the jury considers that it has been disproved.... An intentional killing does carry with it the presumption of malice aforethought but the circumstances which precede and accompany the intentional killing may be such as to rebut the presumption of malice and reduce the crime, therefore, to manslaughter.” The defendant contends that this instruction is erroneous on two grounds which we now consider.
One ground is that since the very evidence which the Commonwealth used to prove that the defendant committed the homicide, viz., the defendant‘s admissions, also showed circumstances of mitigation or justification, there can be no inference of malice. This is a repetition of the same argument, based on the case of Commonwealth v. Johnson, 3 Mass. App. Ct. 226 (1975), which we rejected in part 1 of this opinion, and we need not discuss it further.
The other ground is that the judge‘s instructions permitted the jury to infer malice and then allegedly shifted to the defendant the burden of disproving it, in violation of the holdings in In re Winship, 397 U.S. 358 (1970), and Mullaney v. Wilbur, 421 U.S. 684 (1975). See Patterson v. New York, 432 U.S. 197 (1977); Hankerson v. North Carolina, 432 U.S. 233 (1977). This contention is not supported by a careful reading of the judge‘s entire instructions to the jury, and particularly the instructions on
In arguing this point in his brief the defendant makes repeated references to the “presumption” of malice, often enclosing the words in quotation marks. The judge also used those words at several points in his instructions to the jury, while at others he referred to the “inference” of malice.
The use of the words “presumption” and “inference” interchangeably as though they were legally synonymous often gives rise to problems which might be avoided by the more precise use of either one or the other of the two words as appropriate in particular circumstances. Countless pages in scholarly legal treatises and in judicial opinions have been devoted to attempts to explicate the true meaning, effect, consequences, and ramifications of a presumption, whether it is “conclusive” or rebuttable, whether it is evidence or merely a rule in reference to evidence, when and in what circumstances it appears or disappears, whether it operates to shift the burden of proof or merely the burden of going forward with evidence, and other intriguing niceties which all too often serve only to obfuscate rather than light the way for lawyers and judges professedly dedicated to the search for truth. See Mullaney v. Wilbur, 421 U.S. 684, 702-703 n.31 (1975); Barnes v. United States, 412 U.S. 837, 841-846 (1973); Commonwealth v. Pauley, 368 Mass. 286, 290-299 (1975), appeal dismissed, 423 U.S. 887 (1975); Brown v. Henderson, 285 Mass. 192, 194-197 (1934).
We need not dwell further on the problems inherent in presumptions because we believe that the process by which a jury are permitted to find malice in a case such as the
The defendant‘s argument that by permitting the jury to draw an inference of malice the judge shifted the burden of disproving malice to the defendant is similar to the argument which we rejected in Commonwealth v. Gagne, 367 Mass. 519, 524 (1975). We said there: “The defendant argues that the judge, in doing so [charging the jury on the inference of malice from the use of a deadly weapon], effectively took the case out of the category of manslaughter. After careful review of the charge as a whole ... we cannot agree with the defendant‘s contention. The jury were carefully and properly instructed on both manslaughter and the inference of malice. There was no error.”
In the present case the jury were carefully and properly instructed on both manslaughter and the inference of malice. See Commonwealth v. Johnson, 372 Mass. 185, 192 (1977). The fact that on several occasions the judge lapsed into the use of the word “presumption” when he obviously meant “inference” did not detract from the otherwise thorough, accurate, and precise instructions on the subject. Additionally, the judge gave equally thorough, accurate, and precise instructions on the Commonwealth‘s burden of proof on all the essential elements of the crime charged, including but not limited to the element of malice.
He then stressed, at several points in his instructions, in the clearest of language, that the Commonwealth had the burden of proving beyond a reasonable doubt every essential of a crime before the jury could find the defendant guilty thereof, and that the defendant had no burden to take the stand, to present any evidence, or
No fair reading of those instructions can support such a claim. There was thus no violation of the holdings of either the Winship or the Mullaney cases, both supra.
3. The judge‘s refusal to charge on insanity. The defendant seasonably filed requests that the judge charge the jury on the defense of insanity in accordance with the decision of this court in Commonwealth v. McHoul, 352 Mass. 544 (1967), that he instruct the jury that they might return a verdict of not guilty by reason of insanity, and that he instruct them of the consequences of such a verdict in accordance with our decision in Commonwealth v. Mutina, 366 Mass. 810 (1975). The judge declined to give the instructions requested or to instruct the jury at all on the defense of insanity. We hold that his ruling was correct.
Although the subject of insanity as a defense in criminal cases has received much attention from this court in recent years, particularly in the McHoul and Mutina cases, both supra, and in Commonwealth v. Kostka, 370 Mass. 516 (1976), and Commonwealth v. Walker, 370 Mass. 548 (1976), the question whether the evidence in any particular case was sufficient to require the judge to instruct on the subject does not appear to have been at issue in any case decided by this court. The Kostka decision included a lengthy discussion of the nature and effect of the “presumption” or “inference” of sanity in circumstances where the prosecution relied thereon and offered no psychiatric testimony and the defendant did offer such testimony. In that decision we said, at 532: “Insanity is a defense to the crime charged. Although once the issue
The question here is whether there was anything in the Commonwealth‘s evidence, the defendant having presented no evidence, which was sufficient to raise the issue of insanity and which would have compelled the judge to instruct the jury on that subject.
We review the only evidence on which the defendant contends that the issue of insanity was raised. At some indefinite time prior to the homicide in question the defendant had sought medical assistance for his impotency problem without success. On the second day after the homicide, the defendant told a friend: “I don‘t fit in this world and they‘re going to lock me up.” That was the same day he surrendered to the police. Later on that same day the defendant “had taken the pills” but there was no evidence what the pills were or what consequences followed from the taking of them. The defendant refers to this last matter as an “attempted suicide” but it is questionable whether the record supports that. In our opinion no one of these incidents or facts alone, nor the three together, is sufficient to have required the judge to instruct the jury on the defense of insanity. Indeed, in one case we said: “An attempt to commit suicide, like an attempt to escape from jail or a flight after the commission of a crime, may indicate the efforts of a guilty person to avoid punishment for his crime.” Commonwealth v. Goldenberg, 315 Mass. 26, 33 (1943).
We hold that in the circumstances of this case the judge properly refused to submit the issue of the defendant‘s insanity, i.e., criminal responsibility, to the jury, and that
4. Deliberately premeditated malice. At the close of the evidence, the defendant filed a motion that the judge direct the jury to return a verdict of acquittal of so much of the indictment as charged murder in the first degree. The judge denied the motion and he instructed the jury that if they found that the defendant had committed murder “with deliberately premeditated malice aforethought” (
The question raised by both motions is the same since the state and quantum of the evidence was the same when each motion was filed and denied. The question was whether the evidence, in its light most favorable to the Commonwealth, was sufficient to permit the jury to infer deliberate premeditation. Commonwealth v. Sandler, 368 Mass. 729, 740 (1975). We believe that it was not, and that it was therefore error to deny the earlier of the two motions.
Both sides to this case rely in large part on this court‘s exhaustive treatment of the subject of “deliberately premeditated malice aforethought” in the case of Commonwealth v. Tucker, 189 Mass. 457, 486-496 (1905), which includes extracts from instructions to the jury on this subject in numerous earlier trials. It is sufficient to state the court‘s summarization of those extracts in the follow-
The evidence shows that the defendant went to the victim‘s apartment at her invitation, that they engaged in consensual conduct without discord until the point where the victim laughed at him. The defendant had not gone there with any plan or purpose to inflict harm on the victim, and he had not gone there unarmed. The cord with which he brought about her death was fortuitously within reach at the moment that he caused her death. It had not been brought to the premises by him or placed in its position by him or by any other person for use as a weapon. In short, the circumstances of this homicide would not support an inference or finding of deliberate premeditation on the part of the defendant.
5. Review under
6. Record on appeal. The record on appeal in this case includes eighty-one pages of a variety of material printed at public expense and collectively described on the cover thereof as “DEFENDANT‘S APPEAL.” Over one-half of the record (pp. 12 through 63 and several other isolated pages) consists of material which is in no way involved in this appeal as ultimately argued in the defendant‘s brief,7 either because there was no assignment of error
7. The case is remanded to the Superior Court for the entry of a verdict of guilty of murder in the second degree, and for the imposition of a sentence of “imprisonment in the state prison for life” therefor as provided in
So ordered.
HENNESSEY, C.J. (dissenting in part). I agree with the main opinion in all aspects except the conclusion that the evidence did not warrant an inference that the defendant acted with deliberately premeditated malice. Although the evidence was sparse as to this issue, I believe it was suffi-
I proceed on the assumption, as the main opinion apparently does, that the relevant admissions of the defendant are to be accepted. This is appropriate, by reason of the lack of other and contradictory evidence. Disbelief of the defendant‘s statements would leave the jury with no detailed evidence of the occurrence. Even if the jury chose to accept as true only part of the defendant‘s admissions, it is apparent that the case against the defendant would not be bolstered.
The crucial statements of the defendant, summarized in the main opinion were as follows: “The victim laughed at the defendant and told him she had wasted her evening. He asked her to stop laughing at him and she continued, so he put his hand over her mouth to stop her. She still continued to laugh and he slapped or struck her. She started to yell and tried to leave. He then grabbed a piece of cord or twine from a table, wrapped it around her neck, and applied pressure. He saw blood coming from her nose and mouth and thought he had killed her. He put her body on a couch and then left the apartment. In leaving the apartment the defendant wiped the doorknob to eliminate fingerprints and took with him the empty beer cans and the victim‘s pocketbook. He disposed of the victim‘s automobile driving license and the keys to her apartment and automobile by throwing them away in some tall grass and shrubbery at the rear of the apartment complex where he lived. The police found the items there on August 19, 1974.”
The main opinion analyzes the evidence in somewhat persuasive language, but it accepts, as I do, the language of Commonwealth v. Tucker, 189 Mass. 457 (1905), as the controlling law. That case says at 495: “First the deliberation and premeditation, then the resolution to kill, and lastly the killing in pursuance of the resolution; and all this may occur in a few seconds” (emphasis supplied). In my view, the main opinion, while recognizing the rule
I do not reach, and the main opinion did not have to reach, the question whether, in an exercise of this court‘s discretionary power under