finding no inconsistency between jury’s “obligation to return a verdict of the highest degree of murder that the Commonwealth has prove[d] beyond a reasonable doubt” and statutory requirement that “[t]he degree of murder shall be found by the jury,” stating that “[tjhere is no doubt that the [former] instruction is correct”
How later courts described this case
- finding no inconsistency between jury’s “obligation to return a verdict of the highest degree of murder that the Commonwealth has prove[d] beyond a reasonable doubt” and statutory requirement that “[t]he degree of murder shall be found by the jury,” stating that “[tjhere is no doubt that the [former] instruction is correct”
- focus of G. L. c. 234, § 28, second par., as amended in 1975, requires reason to suspect that a juror or jurors are not or may not be indifferent before individual questioning is required
- “Since eyewitness identification often plays a major, if not a determinative, role in the trial of criminal oifenses, and the dangers of mistaken identification are great and the result possibly tragic, defendants must be allowed to examine fully during the voir dire hearing the totality of the circumstances” [emphasis in original]
- “seizure of the clothing, while warrantless, was incident to a valid arrest and was ‘evidence of the crime for which the arrest . . . [had] been made’ ”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Commonwealth v. Paulding, 438 Mass. 1 (2002)
Commonwealth v. Dickerson, 372 Mass. 783, 786, 792 (1977), overruled on other grounds, Commonwealth v. Paulding, 438 Mass. 1 (2002) (search of backpack at
The opinion
Braucher, J.
(with whom Kaplan, J., joins, concurring in the result). I do not join in part 3 of the opinion of *813 the court. I agree that the judge correctly instructed the jury that three alternative verdicts were possible on the murder indictment: guilty of murder in the first degree, guilty of murder in the second degree, or not guilty. This was in accordance with G. L. c. 265, § 1: “The degree of murder shall be found by the jury.” But I do not agree that there was error in the charge to the jury.
Contrary to the view taken by the court, I think the jury could properly return a verdict of guilty of murder in the second degree even though they found that the murder was committed in the course of an armed robbery. “It has often been said that this statute does not create two separate and distinct crimes, but that the Legislature ‘considers murder as one kind or species of crime, the punishment of which may be more or less severe according to certain aggravating circumstances, which may appear on the trial.’ Commonwealth v. DiStasio, 298 Mass. 562, 564 [cert. denied, 302 U.S. 683 , 759 (1937)] and cases there cited.” Commonwealth v. Chase, 350 Mass. 738, 744 , cert. denied, 385 U.S. 906 (1966). Accordingly, we held in the Chase case that a person guilty of felony murder could be indicted and convicted of murder in the second degree.
Thus the jury, in a case of armed robbery-murder, were required to find that it was murder in either the first or the second degree. As the statute confers on the jury a dispensing power, it is quite proper for the judge to help them with instructions suggesting how they should exercise it. Indeed, I think, if requested by the defendant, the judge would be bound to give such instructions. The factors listed by the judge in the present case were not unfairly drawn, and he made it clear that the question was entirely for the jury, as the statute requires. Without reference to illustrative factors, a general charge might be uninformative or even confusing.