# Commonwealth v. Dickerson

> Massachusetts Supreme Judicial Court · June 20, 1977 · 372 Mass. 783

URL: https://www.frixlaw.com/law-library/cases/9530983

## Case

- **Full name:** Commonwealth vs. Lewis H. Dickerson
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** June 20, 1977
- **Citations:** 372 Mass. 783; 364 N.E.2d 1052; 1977 Mass. LEXIS 978
- **Precedential status:** Published
- **Opinion:** Concurrence by Braucher
- **Judges:** Hennessey, Quirico, Braucher, Kaplan, Wilkins, Liacos, Abrams
- **Cited by:** 130 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Commonwealth v. Paulding, 438 Mass. 1 (2002).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9530983

## How later opinions describe it (automated extraction)

- 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…

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9530983. Public record. Not legal advice.