Thе defendant was found guilty of murder in the first degree of Charles Dionisio with a recommendation that the sentence of death be not imposed. G-. L. c. 265, § 2. The ease comes here by appeal under Gr. L. с. 278, §§ 33A-33Q-, with numerous assignments of error.
The jury could have found the following: On the evening of October 23, 1959, the defendant entered a grocery store in Watertown where Dionisio, aged twenty-five, was employed as a clerk. At gunpoint, the defendant compelled Courtney, the manager of the store, to hand over the money contained in the cash register. He then ordered Courtney to accompany him tо the safe, and shortly thereafter became involved in a scuffle with Dionisio. There was no evidence as to precisely how the struggle began, but during its course two shots were discharged into Dionisio. The defendant then broke free from the victim, who at this point held the gun and was endeavoring to restrain him, and ran out of the store.
Dionisio was admitted that evening to the Mount Auburn Hospital in Cambridge and underwent emergеncy surgery. One bullet had entered the upper right side of Ms abdomen, then had passed through Ms intestines and out through Ms back. The other had passed through Ms right tMgh. In the period following the operation, a severе infection (peri-torntis) caused by the escape of bacterial matter from the intestines developed in Ms peritoneal cavity. In spite of *493 the numerous procedures employed tо combat this condition, the infection spread, resulting in the formation of four extensive abscesses. Three more operations were performed in an attempt to save Dionisio’s life, the last on April 7, 1960, during which a large segment of his intestines was removed. Dionisio died on April 13, 1960, slightly less than six months after the assault. 1 The opinion of the surgeon who performed the autopsy was that he died “as the result of multiple intra-abdominal abscesses, bronchopneumonia, and left empyema due to gunshot wound of the abdomen with perforations of the colon.”
In November, 1959, prior to the victim’s death, the defеndant was indicted for assault and battery upon Dionisio by means of a dangerous weapon, and for other crimes connected with the robbery. There is no question that these indictments arose out оf the same set of circumstances which occasioned the present indictment. The defendant pleaded guilty to the November, 1959, indictments and was sentenced.
Because of his prior conviction for the assault and battery, the defendant entered a plea of autrefois convict to the present indictment for murder. The plea was denied, subject to the defendant’s exception. At the close of the evidence motions were made for directed verdicts on all the possible crimes for which the defendant could have been convicted under the indictment (ranging from simple assault and battery to first degree murder). The judge granted the motions with the exception of those relating to first and second degree murder, and the defendant excepted.
1. Several of the defendant’s assignments (1,19, 20, 21, 23, 30 and 31) present the question whether the prior indictment and conviction for assault and battery by means of a dangerous weapon bar the present proceedings. Both the common law and our statutes provide that a person may
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not be twice put in jeopardy for the same offence. See G-. L. c. 263, §§ 7, 8, 8A; c. 277, § 75;
Commonwealth
v.
Roby,
2. In assignments 4 and 5 the defendant challenges the admission of the testimony оf two police officers as to a conversation held between one of the officers and the defendant just before his arrest. The rulings complained of occurred in these circumstanсes. Officer Kelly was asked if he had overheard a conversation between the defendant and Lieutenant Sheehan shortly prior to the defendant’s *495 arrest and he replied that he had. He was then asked, subject to the defendant’s exception, to state what the conversation was. Officer Kelly testified that Lieutenant Sheehan asked the defendant if he knew him and that the defendant repliеd, “No, not again.” The defendant then moved that this evidence be struck and the motion was denied subject to the defendant’s exception. Later, subject to the defendant’s exception, Lieutenаnt Sheehan was asked to give his version of the conversation. He testified that he asked the defendant, “Don’t you remember me?” and the defendant said, “Not you again?” To this Sheehan replied, “Yes. It has been a long time.” The defendant’s motion to strike this evidence was denied, subject to exception.
If this testimony, as the defendant argues, served to inform the jury that the defendant had been involved in some рrior criminal activity, its admission over objection was error.
Commonwealth
v.
Stone,
3. Assignment 17 is based upon the exclusion of a question put during cross-examination by the defendant to the physician who performed the autopsy upon Dionisio. The witness was asked: “So that there is a possibility that this man’s bronchopneumonia stemmed from chronic bronchitis?” On objection the question was excluded. There was no error. Just prior to this question the witness was asked: “Oan you positively exclude as a cause for the bronchopneumonia chronic bronchitis?” To this he answered: “No, sir.” Earlier in the defendant’s cross-examination of the medical examiner who had witnessed the autopsy, the witness was asked: “ [W]ith relation to bronchopneumonia that you say this . . . man suffered, would chronic bronchitis be a cause of bronchopneumonia?”
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He answered: “It is one of thе things that may lead to bronchopneumonia. ’ ’ These questions and answers reveal that the defendant was afforded ample opportunity to pursue this subject, and that, in fact, he had already received the desired answers. Moreover, because of the conjectural form of the question (see
Nass
v.
Duxbury,
4. Assignments 22, 25, 26, 27 аnd 28 relate to the judge’s refusal to give requested instructions to the jury as to the cause of Dionisio’s death and the Commonwealth’s burden of proof regarding it. The judge in fact gave correct instructions оn both issues, but in a more general form than that of those requested by the defendant. He was not required, however, to discuss every subsidiary fact and possible inference.
Commonwealth
v.
Greenberg,
5. Another group of assignments (7-12, and 18) deals with the admission in evidence, over objection, of the apron, shirt, and T-shirt allegedly worn by the victim at the time of his injuries. The defendant contends that there was no adequate preliminary identification of these articles prior to their submission to thе jury. The testimony revealed that Lieutenant Sheehan retrieved the articles from the hospital to which Dionisio had been admitted, that the perforations in the articles were bullet holes, and that these holes were located in areas roughly corresponding to the victim’s wounds. This evidence raised a sufficient likelihood that the articles were those worn by Dionisio on the night in question. There was no error in their admission in evidence. “The lack of positive identification affects not the competency but the weight of the evidence, and the issue of identity was for the consideration of thе jury.”
Commonwealth
v.
Parrotta,
*497
6. The defendant excepted (assignment 6) to the admission of testimony by a police captain that the store manager, Courtney, upon identifying the defendant in a police lineup, said: “This is the man.” This evidence, which appears to have been introduced solely to show a prior identification of the defendant by Courtney, was admissible.
Commonwealth
v.
Locke,
7. On a review of the whole case in aE its aspects оf fact and law, in accordance with our duty under Gr. L. c. 278, § 33E, as amended by St. 1962, e. 453, we are of opinion that justice does not require a new trial.
Judgment affirmed.
Notes
In this Commonwealth the common law rule obtains that to constitute criminal homicide the victim of the assault must die within a year and a day from the time of the infliction of the mortal wound.
Commonwealth
v.
Maeloon,