# Petition — Gagne v. Meachum > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1166%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 992 ## Text wal \y U. te / + ED OCT 29 1979 \ ° PA Lt ar on. 7 In the ~ Supreme Court of the United States. Ocroser TERM, 1979. No. , ’ 79-689 RICHARD JOSEPH GAGNE, PETITIONER, v. LARRY R. MEACHUM, RESPONDENT. Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit. WiiuiaM K. DANAHER, JrR., 19 Elm Street, Court Square, Springfield, Massachusetts 01103. (413) 781-6890 BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS ‘JR. CLERK ---- Table of Contents. Opinion below Jurisdiction Questions presented Constitutional provision involved Statement of the case Reasons for granting the writ Introduction I, II. The decision of the Court of Appeals is in con- flict with the decision of this Court in Mullaney v. Wilbur, 421 U.S. 684 (1975), and In re Win- ship, 397 U.S. 358 (1970). The Court of Ap- peals applied incorrect federal standards in determining whether the trial court’s charge unconstitutionally shifted to the petitioner the burden of proving that he acted in self-defense or under provocation. Mullaney v. Wilbur, 421 U.S. 684 (1975), should be interpreted to require an affirmative instruction to the jury that the prosecution must prove beyond a reasonable doubt the absence of mitigation or self-defense once those issues have been properly presented in a homicide case; otherwise there is a definite risk that a jury will interpret instructions on the presumption of malice as conclusive or burden-shifting in vio- lation of a defendant's right to due process. A. Mullaney v. Wilbur should be interpreted to require that an affirmative statement be given to the jury to the effect that the pros- ecution must disprove mitigation or self- defense once they are issues in the case. NN © bb & 12 12 ii TABLE OF CONTENTS. B. As a matter of due process the defendant was entitled to an explanatory statement con- cerning the interrelationship between the in- ference or presumption of malice and con- trary evidence of mitigation or justification so as to avoid any misapprehension by the jury with respect to the burden of proof on these issues. 15 Conclusion 18 Appendix A: Opinion of United States Court of Ap- peals for the First Circuit la Appendix B: Memorandum of United States District Court for the District of Massachusetts 6a Appendix C: Opinion of Supreme Judicial Court of Massachusetts, Gagne v. Commonwealth 22a Appendix D: Opinion of Supreme Judicial Court of Massachusetts, Commonwealth v. Gagne 30a Appendix E: Analysis of trial judge’s charge to the jury . 39a Table of Authorities Cited. CASEs. Commonwealth v. Blondin, 324 Mass. 564, 87 N.E. 2d 455 (1949) 3 Commonwealth v. Gagne, 367 Mass. 519, 326 N.E. 2d 907 (1975) 4n Commonwealth v. Rodriguez, 370 Mass. 684, 352 N.E. 2d 203 (1976) 10, 12n, 13, 16 2a Pen anes ome TABLE OF AUTHORITIES CITED. iii Commonwealth v. Stokes, Mass. Adv. Sh. (1978) 610, 374 N.E. 2d 87 (1978) 12n, 13, 16 Gagne v. Commonwealth, Mass. Adv. Sh. (1978) 1568, 377 N.E. 2d 919 (1978) 5n Gagne v. Meachum, 423 F. Supp. 1177 (D. Mass. 1976) 5 Gagne v. Meachum, 460 F. Supp. 1213 (D. Mass. 1978) 5n Gagne v. Meachum, 602 F. 2d 47] (1st Cir. 1979) ‘ 6n, 14 Hankerson v. North Carolina, 432 U.S. 233 (1977) 2, 8, 15, 16, 17, 18 Ivan V. v. City of New York, 407 U.S. 203 (1972) 15, 16, 17 Mullaney v. Wilbur, 421 U.S. 684 (1975) 2, 4, 7, 8, 11, 12, 13 et seq. Patterson v. New York, 432 U.S. 197 (1977) 16 Sandstrom v. Montana, __ U.S. oie a i. oe 39 (1979) 15 Winship, In re, 397 U.S. 358 (1970) 2, 8, 13, 18 CONSTITUTIONAL AND STATUTORY PROVISIONS. United States Constitution, Fourteenth Amendment 2 28 U.S.C. § 1254/1) l In the Supreme Court of the United States. Ocroser Term, 1979. No. RICHARD JOSEPH GAGNE, PETITIONER, v. LARRY R. MEACHUM ‘ RESPONDENT. Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit. Opinion Below. The opinion of the court below (App. A) is reported at 602 F, 2d 471 (1st Cir. 1979). Jurisdiction. The decision of the court below was entered on July 31, 1979. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). 2 Questions Presented. I. Whether the charge given in the petitioner’s trial for murder unconstitutionally shifted to him the burden of prov- ing that he acted in self-defense or under provocation, in viola- tion of the principals laid down in In re Winship, 397 U.S. 385 (1970), and Mullaney v. Wilbur, 421 U.S. 684 (1975), which was given full retroactive effect in Hankerson v. North Caro- lina, 432 U.S. 233 (1977). II. Whether in a murder case, where malice is an element of the crime to be proved beyond a reasonable doubt, Mul- laney v. Wilbur, 421 U.S. 684 (1975), and In re Winship, 397 U.S. 358 (1970), place a constitutional duty on the trial court to tell the jury affirmatively that the prosecution must assume the duty of proving that the defendant did not act with mitiga- tion or did not act with justification when those defenses are proffered and are fairly in the case. III. Whether, in his prosecution for murder, which took place prior to the decision in Mullaney v. Wilbur, 421 U.S. 684 (1975), the petitioner was entitled, without request and as a matter of due process, to an explanatory statement concerning the interrelationship between the inference or presumption of malice and contrary evidence of mitigation or justification so as to avoid any misapprehension by the jury with respect to the burden of proof on these issues. Constitutional Provision Involved. FOURTEENTH AMENDMENT. SECTION 1. “... nor shall any State deprive any person of life, liberty, or property, without due process of law... ..” 3 Statement of the Case. The petitioner was tried before a Massachusetts Superior Court judge and jury on an indictment charging him with the deliberate, premeditated murder of one Robert J. Kowalski on October 29, 1970 (not 1969, as in the lower court’s opinion, App. A, la). The petitioner was first tried in October, 1972, but the jury were unable to agree. A mistrial was declared and a second trial took place on February 6, 1973. At the sec- ond trial, the defendant was found guilty of murder in the second degree and was sentenced to state prison for the term of his natural life. The petitioner filed a motion for a new trial and, in connec- tion therewith, asked the trial judge to make certain rulings of law. This motion was denied after hearing and all but one of the requested rulings were acted upon by the judge. Under Massachusetts practice, the action of the trial judge in con- sidering the requests for rulings of law constituted a recon- sideration of any actions or directions taken by him at the trial which involved the same principles of law. A further effect of this reconsideration was to open up these same questions of law for consideration by the state appellate courts (cf. Com- monwealth v. Blondin, 324 Mass. 564, 567, 87 N.E. 2d 455 (1949)). Included among the requests for rulings of law so acted upon by the trial judge was the following: “7. The jury is not warranted in inferring malice or in presuming malice from use of a deadly weapon and/or in- ferring or presuming that a wrongful act, intentionally done, is done with malice; because to do so equates intent with malice as an essential ingredient of murder. United States v. Wharton, 139 App. D.C. 293, 433 F. 2d 451.” The trial judge denied this request. Also included in the re- quests for ruling of law was the following: 4 “6. Where credible evidence is introduced to prove that the Defendant acted in self-defense the burden is upon the Commonwealth to prove beyond a reasonable doubt that the Defendant did not act in self-defense and that the homicide was not justified.” The trial judge allowed this request but nevertheless denied the motion for new trial. He also failed to instruct the jury in accordance with request No. 6. Ground No. 10 in the peti- tioner’s motion for new trial contained the following allega- tion: “10. The trial Court committed error in failing to charge the jury that where credible evidence is intro- duced that the Defendant acted in self-defense the burden is upon the Commonwealth to prove beyond a reasonable doubt that the Defendant did not act in self- defense and that the homicide was not justified.” During the pendency of the petitioner's first state court ap- peal, it was learned that Mullaney v. Wilbur was pending in the Supreme Court of the United States. The petitioner asked for and was granted leave to file a supplemental brief ad- dressed to the Mullaney issues. This first appeal, however, was denied by the Supreme Judicial Court prior to the decision of the Supreme Court of the United States in Mullaney.' A petition for rehearing filed by the petitioner was also denied prior to the decision in Mullaney. - Subsequent to the decision in Mullaney v. Wilbur, 421 U.S. 684 (June 9, 1975), the petitioner filed @ petition for writ of ‘Commonwealth v. Gagne, 367 Mass. 519, 326 N.E. 2d 907 (1975) (App. D, 30a-38a). 5 habeas corpus in the United States District Court for the District of Massachusetts. This petition was denied (Freed- man, J.) on November 10, 1976, without prejudice to the fil- ing of a second petition for rehearing because: 1. “[A]lthough the Supreme Judicial Court was aware of the issues in Mullaney when it considered Gagne’s peti- tion for rehearing, it did not have the opportunity to con- sider those issues in light of the United States Supreme Court decision rendered more than one week later.” Gagne v. Meachum, 423 F. Supp. 1177, 1181 (D. Mass. 1976); and because: 2. “Review of Commonwealth v. Gagne by the Su- preme Judicial Court of Massachusetts in: light of Mullaney also seems appropriate in view of that court’s decision in Commonwealth v. Rodriguez, 1976 Mass. Adv. Sh. 1864, . . . which appears to severely undermine, if not abandon, the holding in York, and adopt the posi- tion taken in Mullaney and Winship.” Gagne v. Meach- um, supra, at 1181 n.2. The petitioner thereupon filed with the Supreme Judicial Court a second petition for rehearing (ultimately a petition for writ of error) and the Supreme Judicial Court of Massachusetts rendered its decision on June 19, 1978.2 The petitioner then moved for a rehearing in the United States District Court on his original petition for writ of habeas corpus. The United States District Court’s decision on the petitioner’s motion was rendered on November 30, 1978.° * Gagne v. Commonwealth, Mass. Adv. Sh. (1978) 1568, 377 N.E. 24919 (1978) (App. C, 22a-29a). * Gagne v. Meachum, 460 F. Supp. 1213 (D. Mass. 1978) (App. B, 6a-21a). 6 The petitioner thereafter took an appeal to the United States Court of Appeals for the First Cir_uit. That court’s decision was rendered on July 31, 1979,‘ and its mandate was issued on August 21, 1979. The Court of Appeals held that: “At Gagne’s trial, . . . the judge at no time stated that there was any burden on the defendant, nor was there any generally accepted state rule that required a defend- ant to prove self-defense. The judge stated, with signifi- cant repetition, that it was the Commonwealth’s hurden to prove each element of the offense beyond a reasonable doubt, that malice was an element of murder, that the Commonwealth had to prove malice, and that a killing was done with malice if it was done intentionally and ‘without justification, excuse or éxtenuation.’ The judge also defined adequate provocation and self-defense, and stated that a homicide ‘may . . . be justified and hence lawful if done in self-defense.’ The instruction given con- veyed that the Commonwealth had to prove malice be- yond a reasonable doubt, and malice was defined to in- clude the concept that Gagne had acted without justifica- tion — i.e., not in self-defense. The charge, read as a whole, Cupp v. Naughten, 414 U.S. 141, 146-47 (1973), did not shift the burden of proof to defendant.” 5 The court went on to hold that the petitioner was not en- titled to an affirmative statement to the jury that would negate a misapprehension by them of the interrelationship between the presumption or inference of malice and the defenses of mitigation and justification. *Gagne v. Meachum, 602 F. 2d 471 (Ist Cir. 1979) (App. A, la-5a). 5Id. at 472-473 (App. A, 3a). 7 The issues on appeal in all of the attacks made on the peti- tioner’s conviction, whether direct or collateral, have focused on the state court trial judge’s charge to the jury and his failure properly to explain the presumption of malice and the effect upon it of contrary evidence. In each of the petitioner’s prior appeals he has contended that the trial court’s charge to the jury shifted to the petitioner the burden to disprove malice by requiring him to prove matters of mitigation or justification. In each of the petitioner’s prior appeals, he has contended that the jury could have interpreted the trial court’s charge as shift- ing the burden of proof on malice to him and that he was, therefore, entitled to a new trial even though it might also be that the jury could have interpreted the charge as creating only a “permissive inference.” The gravamen of the petitioner's argument is that it can never be known whether the jury drew the inference of malice freely or whether they felt compelled to do so. The trial judge’s charge to the jury is set forth in Appendix E (pp. 39a-48a). The charge is divided into two parts, an intro- ductory part which begins in Appendix E at page 39a and ends at page 41a, and a substantive part which begins at page 4la and ends at page.48a. The transcript references set out in the charge relate to page numbers from the original trial tran- script. Reasons for Granting the Writ. INTRODUCTION. The petitioner argues the following reasons why this peti- tion for writ of certiorari should be granted: I. The decision of the Court of Appeals is in conflict with the decision of this Court in Mullaney v. Wilbur, 421 U.S. 8 684 (1975), and In re Winship, 397 U.S. 358 (1970). The Court of Appeals applied incorrect federal standards in deter- mining whether the trial court’s charge unconstitutionally shifted to the petitioner the burden of proving that he acted in self-defense or under provocation. II. Mullaney v. Wilbur, 421 U.S. 684 (1975), should be in- terpreted to require an affirmative instruction to the jury that the prosecution must prove beyond a reasonable doubt the absence of mitigation or self-defense once those issues have been properly presented in a homicide case; otherwise there is a definite risk that a jury will interpret instructions on the presumption of malice as conclusive or burden-shifting in violation of a defendant’s right to due process. I. THe Decision oF THE Court oF APPEALS IS IN CONFLICT WITH THE DECISION OF THIS CourRT IN MULLANEY V. WILBuR, 421 U.S. 684 (1975), AND IN RE Winsuip, 397 U.S. 358 (1970). THe Court or APPEALS APPLIED INCORRECT FEDERAL STANDARDS IN DETERMINING WHETHER THE TRIAL Court's CHARGE UNCONSTITUTIONALLY SHIFTED TO THE PETITIONER THE BURDEN OF PROVING THAT HE ACTED IN SELF-DEFENSE OR UNDER PROVOCATION. The charge given in the petitioner’s trial for murder uncon- stitutionally shifted to him the burden of proving that he acted in self-defense or under provocation in violation of In re Win- ship, 397 U.S. 358 (1970), and in violation of principles laid down in Mullaney v. Wilbur, 421 U.S. 684 (1975), which was given full retroactive effect in Hankerson v. North Carolina, 432 U.S. 233 (1977). The presumption of malice in cases of intentional homicide is a device that places the burden of proving justification or 9 mitigation on the defendant. This is necessarily so because the presumption of malice, ipso facto, presumes the non-existence of justification or mitigation. Malice cannot co-exist with either mitigation or justification. The petitioner does not contend that the prosecution must in the very first instance introduce evidence of facts which would negate the existence of mitigation, justification or excuse. The petitioner is in complete agreement that it would be an unrea- sonable burden upon the prosecution to require it in every murder case to prove not only the killing of the deceased by the defendant, but also the non-existence of every conceivable set of circumstances which might be sufficient to constitute inno- cent homicide or manslaughter. The gist of the petitioner’s argument is that, once a jury issue is generated with respect to mitigation, justification or excuse, whether the issue arises from the prosecution’s case or from evidence produced by the defendant, the presumption of malice has to be totally dissipated. Once the issue is generated with respect to mitigation or justification, not only must the state assume the burden of persuasion on those issues to disprove them, but the jury has to be told about this. When the trial judge in the petitioner’s case permitted the presump- tion or inference of malice to remain in the case, even though issues of mitigation and justification had been properly generated, the jury not only were told that in cases of inten- tional homicide there is a natural presumption of malice, but they were also led to believe that in cases of intentional homicide there is a corresponding presumption that the homi- cide was not committed justifiably or under circumstances of mitigation. This was inevitable because the presumption of malice ipso facto presumes the non-existence of justification or mitigation. The presumption, therefore, became an artificial aid to the prosecution’s burden. 10 The petitioner’s challenge to the trial court’s jury instruc- tions clearly is grounded upon the premise that malice, be- cause it is an essential ingredient of the crime of murder, is an- tithetical to and inconsistent with mitigation or justification, because both negate malice. These defenses under Massachu- setts law are intrinsically related to a basic element of the pros- ecution’s case, i.e., malice. They are not affirmative defenses in Massachusetts. Malice is not a single notion but rather an “umbrella” term encompassing three distinct aspects: 1. The act (the killing) which produces the homicide must be intentional; 2. The act (the killing) must be without justification or excuse; 3. The act (the killing) must be unmitigated. Cf. Commonwealth v. Rodriguez, 370 Mass. 684, 689-690, 352 N.E. 2d 203 (1976). The trial judge in the petitioner’s trial did not say in actual words that the petitioner had the burden of proving mitigation or self-defense, but neither did he say that the prosecution had to prove the absence of mitigation or the dbsence of self- defense once they were issues in the case. What the trial judge did do, however, was to tell the jury that murder is the natural inference to be drawn by the law from all homicides inten- tionally done. The jury were told that if an act is done intentionally it is done without mitigation or excuse (Tr. 779). The jury were told that malice is implied in every deliber- ately proven act against another (Tr. 781). The jury were told that if the killing was intentional even though the act of killing followed the thought immediately, without justification, excuse or extenuation, the killing was with malice aforethought (Tr. 781). 1] The jury were then told again that “[i]f a man intentionally and without legal justification or excuse or extenuation . . . [shoots somebody or uses a force that) will probably do griev- ous bodily harm to that other person and will create a plain and strong likelihood that the other person would die as a result, the act is malicious” (Tr. 781-782), The jury were then told that the condition of the mind which permits someone to do injury without excuse or justifi- cation is malice and that when the fact of malice is shown there is nothing to rebut the natural presumption of malice for the rational probability is that a man of sound mind intends the proper and natural consequences of his act (Tr. 782-783). The jury were told by the trial judge to start with the crime of murder, because the import of the charge was that murder is the natural inference to be drawn by the law from every homicide. The lower court held that Mullaney v. Wilbur, supra, re- quires no more than a general statement to the jury that the prosecution has the burden of proving malice beyond a reason- able doubt together with an admonition that malice negates self-defense and reasonable provocation and is an element to be proved beyond a reasonable doubt. Defining malice as negating self-defense or reasonable provocation and describing it further as an element of murder to be proved beyond a reasonable doubt sheds no light whatsoever on the manner in which the presumption or inference of malice will be per- ceived by the jury. This is so because the jury could very well find malice on the basis of the presumption and also find that self-defense and reasonable provocation did not exist solely be- cause they were led to believe they did not exist because of the same presumption or inference of malice. A jury could very weil believe beyond a reasonable doubt that a defendant had committed an intentional homicide with a dangerous weapon and at the same time have a reasonable doubt as to whether ne 12 the defendant acted under mitigating circumstances or in self- defense. Yet, under the decision of the lower court, they could nevertheless find malice beyond a reasonable doubt be- cause the trial judge told them they could infer or presume its existence from the fact of the intentional homicide with a dan- gerous weapon. I]. MuLuaney v. Wixsur, 421 U.S. 684 (1975), SHOULD BE INTERPRETED TO REQUIRE AN AFFIRMATIVE INSTRUCTION TO THE JURY THAT THE PROSECUTION Must Prove BEYOND A REa- SONABLE DouBT THE ABSENCE OF MITIGATION OR SELF-DE- FENSE ONCE THOSE ISSUES HAVE BEEN PROPERLY PRESENTED IN A Homicine Case; OTHERWISE THERE IS A DEFINITE RIsK THAT A JURY WILL INTERPRET INSTRUCTIONS ON THE PRESUMPTION OF MALICE as CONCLUSIVE OR BURDEN-SHIFTING IN VIOLA- TION OF A DEFENDANT’S RIGHT TO DuE PROCESS. A. Mullaney v. Wilbur Should be Interpreted to Require that an Affirmative Statement be Given to the Jury to the Effect that the Prosecution Must Disprove Mitigation or Self-Defense Once they are Issues in the Case.® It is true that Mullaney dealt with an instruction that ex- pressly placed on the defendant the burden of proving mitiga- tion by a preponderance of the evidence. In Mullaney this Court said: “We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the * Assuming that self-defense is not an affirmative defense. It is not an af- firmative defense under Massachusetts law. Cf. Commonwealth v. Rodri- guez, 370 Mass. 687-688 and n.4, 352 N.E. 2d 203 (1976); Commonwealth v. Stokes, Mass. Adv. Sh. (1978) 610, 621-622, 374 N.E. 2d 87 (1978). 13 absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.” Mullaney v. Wilbur, 421 U.S. at 704. Whether this clear and distinct holding also requires that an affirmative statement be given to the jury is an extremely im- portant issue. If Mullaney makes it a matter of due process that the state bear the burden of proof on the issue of the absence of mitigation or self-defense, it would seem natural that a jury must be told about this if they are to perform their function in accordance with due process. Only in this way can the court be sure that there will be no misapprehension on the part of the jury. The Commonwealth of Massachusetts has held that the ab- sence of mitigation and the absence of self-defense are Win- ship-type facts with respect to proof of malice. Cf. Common- wealth v. Rodriguez, 370 Mass. 684, 689, 352 N.E. 2d 203 (1976); Commonwealth v. Stokes, Mass. Adv. Sh. (1978) 610, 622, 374 N.E. 2d 87 (1978). When mitigating factors or self-defense become issues in a homicide case, however, they usually come into the case as if they were affirmative defenses. More often than not, the de- fendant is the source of the evidence which raises the issue of mitigation or self-defense. It is not only natural but probably predictable that a jury would perceive the burden of proof to be on the party having the affirmative on these issues. Only an affirmative instruction by the trial court can dissipate the confusion attendent to the subtle question whether the prose- cution actually is perceived to have assumed the burden to dis- prove facts — to prove the absence of facts — when evidence bearing on those issues is introduced into a case. This is especially so if such facts are introduced in the same way as if they were affirmative defenses. 14 The petitioner submits to the Court that the lower court uti- lized an improper standard in determining whether the peti- tioner was entitled to an affirmative statement to the jury that the prosecution was required to prove beyond a reasonable doubt the absence of mitigating circumstances and the absence of self-defense after those issues were properly brought into the petitioner’s case. The lower court held that the charge did not shift to the petitioner the burden of proof on the element of malice. The court then concluded that, because this burden was not shifted, there was no requirement for an affirmative statement to the jury concerning the allocation of the burden of proof. Indeed, the court held that “Implicit in our conclusion is our agreement with the district court that the charge did not raise an impermissi- ble presumption of malice, and thus did not lessen the state’s burden of proving malice beyond a reasonable doubt.” Gagne v. Meachum, 602 F. 2d at 473 (App. A, 4a). The petitioner suggests that the proper test to be applied should be based on whether a defendant in a homicide case has proffered evidence of mitigation or justification and whether those issues are properly presented in the case. If so, the peti- tioner submits that Mullaney requires an affirmative state- ment to the jury explaining that the prosecution’s burden of proving malice beyond a reasonable doubt includes the duty of proving the absence of mitigating factors or self-defense. It is the relationship between the presumption or inference of mal- ice on the one hand and contrary evidence of mitigation or self-defense on the other hand that creates the potential for misapprehension on the part of the jury. The jury in the peti- tioner’s case could very well have relied on the court’s instruc- 15 tion that malice could be inferred from an intentional homi- cide committed with a dangerous weapon as their reason for eliminating mitigation or self-defense from the case. Whether they did this can never be known. It is the distinct possibility that they did, however, that strips the petitioner’s conviction of its integrity. It hardly seems possible that the jury in the petitioner’s case were aware of the subtle difference between the burden of proof and the burden of going forward. They could only know about such concepts if they were told about them by the trial judge. In sum, the petitioner contends that the lower court was in no better position to know how the jury perceived the charge than a seer. The question should be whether the charge had the capacity or propensity to confuse. Could the jury have felt compelled to find malice from the fact of an intentional killing with a dangerous weapon; could the jury have reasonably felt that the petitioner bore the burden of establishing mitigation or self-defense? If a fair reading of the charge permits the lat- ter perception, the instruction violates due process. Sand- strom v. Montana, ___ U.S. ___, 61 L. Ed. 2d 39, 46-48, 51 (1979). B. Asa Matter of Due Process the Defendant was Entitled to an Explanatory Statement Concerning the Interrela- tionship Between the Inference or Presumption of Malice and Contrary Evidence of Mitigation or Justification so as to Avoid Any Misapprehension by the Jury with Respect to the Burden of Proof on these Issues. In Hankerson v. North Carolina, 432 U.S. 233 (1977), this Honorable Court held that Mullaney v. Wilbur, supra, was fully retroactive. Relying on Ivan V. v. City of New York, 407 U.S. 203 (1972), this Court said: “*“[w]here the major pur- pose of new constitutional doctrine is to overcome an aspect of 0 16 the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect.”’” 432 U.S. at 243 (407 U.S. at 204). (Em- phasis added in Hankerson.) “The reasonable-doubt standard of proof is as ‘substantial’ a requirement under Mullaney as it was in Winship.” 432 U.S. at 243-244. This Court also said in Patterson v. New York, 432 U.S. 197, 215 (1977): “Mullaney surely held that a State must prove every in- gredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other ele- ments of the offense. This is true even though the State’s practice, as in Maine, had been traditionally to the con- trary. Such shifting of the burden of persuasion with re- spect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.” In Massachusetts, self-defense and mitigation are not af- firmative defenses; they are matters which must be proved not to exist once the issue of their existence is properly brought in a case. Commonwealth v. Rodriguez, 370 Mass. 664, 688, 352 N.E. 2d 203 (1976). Commonwealth v. Stokes, Mass. Adv. Sh. (1978) 610, 622, 374 N.E. 2d 87 (1978). What happens, then, to such issues as mitigation or self-de- fense, which are normally introduced into a case in the nature of affirmative defenses by the defendant, is wholly dependent on whether their relationship to the element of malice is prop- erly explained to the jury. In Commonwealth v. Rodriguez, the Supreme Judicial Court clearly held that it had always 17 been the law of Massachusetts that malice was a tripartite con- cept consisting of: ; 1. an intentional killing, 2. that was committed without mitigating circum- stances, and 3. without justifiable circumstances such as self-de- fense. The lower court held that a general statement concerning the burden of proof was sufficient without requiring an af- firmative statement by the trial judge that, when mitigation or justification were genuine issues in the case, their absence had to be proved beyond a reasonable doubt by the prosecution. The petitioner submits that unless a trial judge explains to a jury the difference between proving the positive aspect of malice, i.e., intentional killing, and proving the negative aspects of malice, i.e., the absence of mitigation and the absence of self-defense, there is definite risk that the jury will be confused. It has been said that a right without a remedy is no right at all. The defendant submits that if Mullaney requires proof beyond a reasonable doubt of all elements constituting the crime charged, it further requires that juries be instructed in plain language that creates no risk of misapprehension on their part. The jury should know that the prosecution has all of the burden when proof of an element of a crime involves proof of affirmative factors and disproof of negative factors. The principle of full retroactivity means that a defendant is deemed entitled to have had at his trial the benefit of any fac- tor without which factor the truth-finding function of his trial would have been substantially impaired. Ivan V. v. City of New York, 407 U.S. 203 (1972). Hankerson v. North Carolina, 432 U.S. 233 (1977). 18 The reasonable doubt standard of proof is as substantial a requirement under Mullaney as it was in Winship. Hankerson v. North Carolina, 432 U.S. at 243-244. The petitioner contends that the instructions given by the trial judge were fraught with the potential for confusing the jury because they treated the burden of proof only generally, under circumstances where positive factors and negative fac- tors were intertwined in the definition of malice. The petitioner, therefore, urges this Court to interpret and expand Mullaney as requiring some explanatory statement that would reasonably prevent a misapprehension on the part of the jurors with respect to the positive and negative factors that make up the element of malice in a homicide case. Conclusion. For the reasons stated above, the petition for a writ of cer- tiorari should be granted. Respectfully submitted, WILLIAM K. DANAHER, JR., 19 Elm Street, Court Square, Springfield, Massachusetts 01103. (413) 781-6890 Attorney for Petitioner Richard Joseph Gagne. NN ee ee la Appendix A. United States Court of Appeals For the First Circuit No. 79-1023 RICHARD JOSEPH GAGNE, PETITIONER, APPELLANT, U. LARRY R. MEACHUM, RESPONDENT, APPELLEE. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Frank H. Freepman, U.S. District Judge) Before CAMPBELL and Bowness, Circuit Judges, and Devine,* District Judge. William K. Danaher, Jr., for appellant. John T. McDonough, Assistant District Attorney, with whom Matthew J. Ryan, Jr., District Attorney, Hampden District, was on brief, for appellee. July 31, 1979 CAMPBELL, Circuit Judge. Richard J. Gagne, who is a Mas- sachusetts state prisoner serving a life sentence for second degree murder, seeks a writ of habeas corpus. We deny peti- tioner’s request for many of the same reasons given by the court below, Gagne v. Meachum. 460 F. Supp. 1213 (D. Mass. 1978). Gagne was tried and convicted before a Massachusetts Superior Court judge and jury in February 1973, admittedly having shot and killed one Robert Kowalski in Gagne’s Phar- macy in Holyoke on October 29, 1969. Gagne’s explanation was that he discovered an intruder in the pharmacy after it had been closed for the night; that the intruder ran toward the * Of the District of New Hampshire, sitting by designation. 2a 2 GAGNE 0. MEACHUM door, turned and pointed a gun at him; and that he then shot at the intruder twice in self-defense. One shot hit Kowalski in the back and killed him; only later, according to Gagne, did he realize that he knew the victim. The Commonwealth’s theory was that Gagne and Kowalski had met by arrangement at the pharmacy, that something had gone wrong, and that Gagne had shot the deceased. In support, it offered evidence of inconsistencies between Gagne’s statement to the police and his trial testimony, of Gagne’s unsuccessful efforts to help Kowalski with some problems that he was having with Prov- incetown authorities concerning his work as a pharmacist there, of a passing motorist having seen Gagne conversing in the pharmacy with someone of the deceased’s description, and of the fact that the deceased was shot in the back. The facts, as well as the lengthy procedural history of the case, appear in greater detail in tlie district court’s opinion, supra, as well as in two prior opinions of the Massachusetts Supreme Judicial Court, Gagne v. Commonwealth, __ Mass. —, 377 N.E.2d 919 (1978), and Commonwealth v. Gagne, 367 Mass. 519, 326 N.E.2d 907 (1975). Gagne’s petition is based on the allegation that the state trial judge unconstitutionally shifted to him the burden of proving that he acted in self-defense or under provocation, in violation of the principle laid down in Mullaney v. Wilbur, 421 U.S. 684 (1975), which was given full retroactive effect in Hanker- son v. Georgia, 432 U.S. 233 (1977).! Like the district court, however, we do not believe that the charge shifted to Gagne the burden of proof on the element of malice. The Supreme Court held in Mullaney that an instruction that a Maine defendant was required to prove “by a fair ' Gagne failed to object to the instruction on these grounds, but the Massachusetts Supreme Judicial Court has held that the possibil- ity of review was not lost. Gagne v. Commonwealth, __ Mass. _, 377 N.E.2d 919, 921 (1978); Commonwealth v. Stokes, __ Mass. __, 374 N.E.2d 87 (1978). 3a OPINION OF THE COURT 3 preponderance . . . that he acted in the heat of passion on sud- den provocation” in order to reduce a homicide to man- slaughter, 421 U.S. at 686, violated the defendant's right to have the requisite degree of malice, as an element of the of- fense, proven beyond a reasonable doubt by the state.* See In re Winship, 397 U.S. 358 (1970). At Gagne’s trial, by contrast, the judge at no time stated that there was any burden on the defendant, nor was there any generally accepted state rule that required a defendant to prove self-defense. The judge stated, with significant repetition, that it was the Com- monwealth’s burden to prove each element of the offense beyond a reasonable doubt, that malice was an element of murder, that the Commonwealth had to prove malice, and that a killing was done with malice if it was done intentionally and “without justification, excuse or extenuation.” The judge also defined adequate provocation and self-defense, and stated that a homicide “may . . . be justified and hence lawful if done in self-defense.” The instruction given conveyed that the Com- monwealth had to prove malice beyond a reasonable doubt, and malice was defined to include the concept that Gagne had acted without justification—i.e., not in self-defense. The charge, read as a whole, Cupp v. Naughten, 414 U.S. 141, 146-47 (1973), did not shift the burden of proof to defendant. * While Mullaney v. Wilbur, 421 U.S. 684 (1975), involved only the defense of provocation, and the Supreme Court has not actually decided whether a state may treat self-defense as an affirmative de- fense that it need not negative beyond a reasonable doubt, compare Hankerson v. North Carolina. 432 U.S. 233, 240 n.6 (1977) with Patterson v. New York, 432 U.S. 197 (1977) (provocation may be treated as affirmative defense for defendant to prove by preponder- ance), respondents do not claim that self-defense in Massachusetts is not subject to the requirements of Mullaney. In 1978, several years after the present case was tried, the Massachusetts Supreme Judicial Court expressly ruled that the absence of self-defense was required to be proven beyond a reasonable doubt by the prosecution, Com- monwealth v. Stokes, __ Mass. __, 374 N.E.2d 87, 93. The Maine courts had so held even prior to Mullaney, see Mullaney, 421 U.S. at 702. RSET Tn Ea 4a 4 GAGNE 0. MEACHUM To be sure, the court did not tell jury explicitly that the Commonwealth had to prove absence of self-defense. It was not asked to give such an instruction but, in any event, we do not perceive the natural import of the charge as indicating that the Commonwealth did not have this burden. Petitioner would have us require not only that the burden not be shifted expressly or by implication to a defendant, but that he be deemed entitled, without request and as a matter of constitu- tional law, to an explanatory statement negativing any possible misapprehension on the part of jurors. We think petitioner asks too much. Implicit in our conclusion is our agreement with the district court that the charge did not raise an impermissible presump- tion of malice, and thus did not lessen the state’s burden of proving malice beyond a reasonable doubt. Gagne objects to the state court’s statements that “malice is implied in every deliberately proven act against another” and that, “When the fact of malice is shown there is nothing to rebut the natural presumption of malice[ ,] for the rational probability is that a man of sound mind intends the probable and natural conse- quences of his act.”* These statements must be read in the con- text of the judge’s repeated assertions that murder “‘is the kill- ing of a human being without legal justification or excuse and without . . . extenuating circumstances,” and that a homicide is malicious, and therefore murder, if done “intentionally, that * We reject Gagne’s objection to the Massachusetts rule that, although Mullaney is retroactive, only instructions given after the Massachusetts Supreme Judicial Court's decision in Common wealth v. Rodriguez, __ Mass. __, 352 N.E.2d 203 (1976), must contain in- structions that the Commonwealth must prove absence of self- defense; this is not inconsistent with the constitutional standard of Mullaney, which disapproved an instruction explicitly placing the burden of proving provocation on the defendant. We do not think that Mullaney requires a new trial in every pre-Mullaney case in which the jury was not told explicitly that the state had to prove absence of self-defense beyond a reasonable doubt. * In fairness to the state court, these statements in present form read as if somewhat garbled in transcription. We proceed on the assumption, however, that what appears in the official transcript is correct verbatim. 5a OPINION OF THE COURT . os is without mitigation or excuse.” (Emphasis added.) The court consistently equated a malicious killing amounting to murder with absence of mitigation, excuse or justification, having in- itially stated that a homicide in self-defense was both justified and lawful. Its single remark concerning the “natural pre- sumption of malice” —i.e., “the rational probability . . . that a man of sound mind intends the probable and natural conse- quences of his act”—was not set out as a legal presumption for the defendant to rebut, nor did it affect the issue of ‘self- defense. Cf. Sandstrom v. Montana, 47 U.S.L.W. 4719 (U.S. June 18, 1979) (disapproving instruction that “the law presumes that a person intends the ordinary consequences of his voluntary acts”). Rather the court said that “When the fact of malice is shown,” i.e., when a homicide is shown to have been done intentionally, without justification or excuse, “there is nothing to rebut the natural presumption.” (Emphasis add- ed.) As the district court, 460 F. Supp. at 1219-20, and the Massachusetts Supreme Judicial Court, 377 N.E. 2d at 921-23, both found, this simply allowed the jury to make a reasonable inference of malice if it concluded that Gagne had acted inten- tionally and without justification or mitigation, i.e., inten- tionally and, for present purposes, not in self-defense. We cannot accept Gagne's position, that the instruc- tion conveyed “that the law itself raises the inference of malice.”* It was clear that malice was an element for the Com- monwealth to prove beyond a reasonable doubt. The judgment of the district court denying the writ of habeas corpus is affirmed. * The Supreme Judicial Court has said that the inference of malice in Massachusetts is merely an inference that the jury can freely dis- regard. Gagne v. Commonwealth, __ Mass. __. 377 N.E.2d 919, 922-23 (1978). * Gagne’s efforts to equate the charge given in his case with that given in Commonwealth v. York. 9 Met. 93 (1845), and disapproved in Mullaney, 421 U.S. at 694-95, is misplaced. There the instruction was that when the fact of killing was proved, malice was presumed as a matter of law unless the defendant proved by a preponderance the facts of excuse or extenuation. See id. 6a Appendix B. UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS RICHARD JOSEPH GAGNE Civil Action v. No. 75-4777-F LARRY R. MEACHUM Memorandum. November 30, 1978. FREEDMAN, D.]J. Richard Joseph Gagne was convicted of murder in the sec- ond degree on February 20, 1973' and is now serving a life sentence in a Massachusetts correctional facility. Relying on Mullaney v. Wilbur, 421 U.S. 684 (1975) (“Mullaney”), which was given full retroactive effect in Hankerson v. North Caro- lina, 432 U.S. 233 (1977) (“Hankerson”), Gagne seeks federal habeas corpus relief from that conviction. After considering the issues presented, I deny Gagne’s petition for a writ of habeas corpus ad subjiciendum. Gagne has persistently challenged the validity of his convic- tion. A week after the jury returned its verdict, Gagne filed a motion for a new trial which was denied by the trial judge on July 17, 1973. Gagne then appealed to the Supreme Judicial "This was Gagne’s second trial on the murder charge. The jury at Gagne’s first trial were unable to agree on a verdict and the trial judge declared a mistrial. 7a Court of Massachusetts (the “SJC”). The SJC affirmed Gagne’s conviction on April 28, 1975. Commonwealth v. Gagne, 367 Mass. 519, 326 N.E.2d 907 (1975). Gagne’s re- quest for a rehearing before the SJC was denied on May 28, 1975. Gagne then filed a petition for a writ of habeas corpus in this court. Because the SJC had not been afforded an oppor- tunity to consider Gagne’s claims in light of Mullaney, which was decided more than a week after the SJC denied Gagne’s request for a rehearing on his appeal, I denied Gagne’s habeas corpus petition under the doctrine of exhaustion of state judi- cial remedies. Gagne v. Meachum, 423 F. Supp. 1177 (D. Mass. 1976). Gagne then filed a second petition for rehearing with the SJC. The SJC denied the petition for rehearing and suggested that Gagne file a petition for writ of error. Gagne did so. The SJC then reviewed his claims in light of Mullaney and its own decision in Commonwealth v. Rodriguez, ___ Mass. ___, 352 N.E.2d 203 (1976) (“Rodriguez”), and af- firmed the conviction. Gagne v. Commonwealth, ____ Mass. ——, 377 N.E.2d 919 (1978). Gagne then revived his petition for a writ of habeas corpus by filing a motion for rehearing in this court. I allowed the motion and heard arguments on the merits of the habeas corpus petition itself, as modified by the motion for rehearing, on August 24, 1978. For convenience, I state here without the traditional inden- tation the summary of the testimony given by the SJC in its de- cision on Gagne’s initial appeal, Commonwealth v. Gagne, supra at ___, 326 N.E.2d at 908-909. The footnotes are mine: The defendant was a pharmacist employed in a phar- macy owned by his father. On the night of the homicide, the defendant closed the store at approximately 9:00 p.m., but re- mained working in the prescription area in the rear. Some- time after 10:00 p.m., the defendant heard glass break in the 8a front of the store. He drew his revolver,* went to the front to investigate and found a widow broken. He opened the door and searched the area outside but was unable to find anyone. He returned to the store and started to call the police when he heard the sound of someone running inside the pharmacy. He saw someone trying to get out the front door who then turned toward the defendant, said “son-of-a-bitch,” and pointed a gun in his direction. The defendant took his revolver out of his pocket and fired two shots. The victim fell and the de- fendant immediately called the police. The defendant was taken to the police station, where he gave a statement disclos- ing essentially the facts set out above. It was subsequently revealed that the defendant had known the victim prior to the shooting and had attempted to assist him with some problems the victim was having with Province- town authorities regarding his position as a pharmacist there. The victim had attended the pharmacy school where the de- fendant taught, and in fact had had the defendant as a teacher. Approximately two months before the shooting, the defendant had informed the victim that he could not help him. In his statement to the police, the defendant was very spe- cific as to everything he had done on the night of the shooting. However, the day after the incident, he notified police that he forgot to tell them about a telephone call from Mrs. Helen A. Simkins, with whom he was talking when he heard the glass break, and who held the line open while he made his search. Mrs. Simkins testified in the defendant’s behalf. * There were apparently two guns involved in this case, Gagne’s and that of the victim. The victim had obtained his gun only a few days before the homicide. Compare Gagne v. Commonwealth, supra at ___, 377 N.E.2d at 923 with Commonwealth v. Gagne, supra at ___, 326 N.E.2d at 912. Only one shot struck the victim. See Gagne v. Commonwealth, supra at ——, 377 N.E.2d at 923. 9a The defendant also had neglected to tell police in his state- ment about one Frederick Wasilenko, who the defendant later claimed had come into the store between 10:00 and 10:20 p.m. to purchase some items. The defendant told police about Wasilenko after the police had been informed by one William R. Roberts that he had seen the defendant and another man conversing in the store between 10:15 and 10:30 p.m. Roberts described the man he had seen in the store, and although Wasilenko, whom he had known for many years, fit the de- scription, Roberts testified that he was certain it was not Wasilenko. The defendant's testimony at the trial was substantially the same as his prior statement to police, except for the telephone call from Mrs. Simkins and the visit by Wasilenko. There was some inconsistency in the timing of the calls and visits, but otherwise defense witnesses corroborated the defendant’s ac- count of the night in question. The defendant contends that he was surprised by an in- truder whose identity was not known to him at the time and upon being faced with a gun he reacted in self-defense by shooting his assailant. The Commonwealth’s contention was somewhat different: It contended that the defendant and the victim had a pre-arranged meeting, something went wrong, and the defendant shot and killed the victim. The ase went to the jury with instructions on murder in the first degree, murder in the second degree, and manslaughter, and the jury returned a verdict of guilty of murder in the second degree. Gagne’s argument here, in essence, is that the trial judge’s charge, which included instructions regarding the inference of malice, relieved the Commonwealth of its burden of proving malice beyond a reasonable doubt and placed on Gagne the burden of proving the non-existence of malice. In the words of the SJC, “[s]uch a shift of the burden of persuasion would be constitutionally impermissible.” Gagne v. Common- 10a wealth, supra at ___, 377 N.E.2d at 92] (citing Hankerson, supra, and Mullaney, supra). Gagne also contends that the SJC, in its decision on his petition for writ of error, Gagne v. Commonwealth, supra, applied a more lenient constitutional standard than that applied to cases tried after the Mullaney decision and argues that the SJC decision “emasculates” Mul- laney by examining the jury charge in its entirety rather than by determining whether the charge “in fact” placed the requi- site burden on the Commonwealth. Finally, Gagne contends that the jury’s verdict was against the weight of the evidence. As I noted in my order denying Gagne’s habeas corpus peti- tion on the grounds of failure to exhaust state judicial reme- dies, Gagne v. Meachum, supra, Mullaney was merely an ap- plication of the constitutional principle enunciated by the Supreme Court in In re Winship, 397 U.S. 358 (1970) (“ Win- ship”), wherein the Court said: Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. 397 U.S. at 364. In Mullaney, the Court applied this principle — that due process requires the prosecution to prove each ele- ment of a crime beyond a reasonable doubt — to a Maine rule requiring a defendant charged with murder to prove, by a pre- ponderance of the evidence, the mitigating defense of “heat of passion on sudden provocation,” in order to reduce the crime to manslaughter. Finding the Maine rule to be inconsistent with Winship, the Court said: lla Maine law requires a defendant to establish by a pre- ponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Under this burden of proof a defendant can be given a life sentence when the evidence indicates that it is as likely as not that he deserves a lesser sentence. This is an intolerable result. . . . 421 U.S. at 703 (emphasis in original). The broader import of Mullaney is that the burden of proof as to an essential element‘ of a crime may not, consistent with the Due Process Clause, be shifted to the defendant. See Pat- terson v. New York, 432 U.S. 197 at 215 (1977). “Malice aforethought” is an essential element of the crime of murder in the second degree in Massachusetts.5 See, e.g., Common- *I note that Winship and Mullaney do not require that the prosecution prove beyond a reasonable doubt the nonexistence of all potentially mitigat- ing factors. For example, within certain apparently unsettled constitutional limits, a state may define affirmative defenses and place on the defendant the burden of proving them. See, e.g., Patterson v. New York, 432 U.S. 197 (1977) (New York rule placing on defendant the burden of proving affirma- tive defense of extreme emotional disturbance does not violate the Due Pro- cess Clause); Buzynski v. Oliver, 538 F.2d 6 (Ist Cir.), cert. denied, 429 U.S. 984 (1976) (anticipating Rivera v. Delaware, 429 U.S. 877 (1976)). *The law of homicide in Massachusetts tracks the traditional common law formulation. See Commonwealth v. Balliro, 349 Mass. 505, 209 N.E.2d 308 (1965). See generally, W. LaFave & A. Scott, Jr., Criminal Law 528-534 (1972). Murder is the unlawful killing of a human being with malice afore- thought. See 32 Mass. Practice § 172 at 71 (Nolan, Criminal Law 1976); Mass. Gen. Laws ch. 277, § 39. Murder committed with premeditation, ex- treme atrocity or cruelty, or in the commission or attempted commission of a crime punishable by death or life imprisonment is first degree murder. All other murder is in the second degree. Mass. Gen. Laws ch. 265, § 1. Man- slaughter is the unlawful killing of a human being without malice afore- thought. See, e.g., Commonwealth v. Beaulieu, 333 Mass. 640, 133 N.E.2d 226 (1956), 32 Mass. Practice, supra § 201 at 92. 12a wealth v. Scanlon, ___ Mass. at , 364 N.E.2d 1196 at 1200 (1977). See also, 32 Mass. Practice § 174 at 75 (Nolan, Criminal Law 1976). Under Mullaney, therefore, in any murder prosecution, the Commonwealth must prove the ele- ment of malice beyond a reasonable doubt and the burden of proof on the issue of malice may not be shifted to the defend- ant.° Against this background, I turn to consideration of Gagne’s claims. I consider first, and reject, Gagne’s contention that the SJC “emasculate[d]” Mullaney by examining the jury charge as a whole rather than determining whether the trial judge “in fact” placed the requisite burden on the Commonwealth.” * The SJC has consistently recognized that the burden of proving malice in a murder prosecution lies with the Commonwealth and that this burden may not be shifted to the defendant. See, e.g., Commonwealth v. Harris, ___ Mass. ___, 380 N.E.2d 642 (1978); Gagne v. Commonwealth, supra; Com- monwealth v. Collins, ___ Mass. ___., 373 N.E.2d 969 (1978); Common- wealth v. Stokes, ___ Mass. __., 374 N.E.2d 87 (1978); Commonwealth v. Greene, _.__. Mass. ___, 362 N.E.2d 910 (1977); Commonwealth v. Johnson, ___ Mass. ___, 361 N.E.2d 212 (1977); Rodriguez, supra. "In reviewing Gagne’s Mullaney claims, the SJC followed the roadmap it had previously drawn in Rodriguez and Commonwealth v. Stokes, —__ Mass. ___, 374 N.E.2d 87 (1978). In Rodriguez, the SJC applied what it called the “well established proposition” that the giving or the failure to give a single instruction “must be viewed in the context of the overall charge.” Rodriguez, surpa at ___, 352 N.E.2d at 207 (quoting Cupp v. Naughton, 414 U.S. 141 at 146-147 (1973)). The SJC found that the trial judge’s failure to give a requested instruction that the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense was error in the context of the overall charge given. The SJC specifically declined to comment on when, in the absence of a request, such a charge might be re- quired. Stokes dealt with that issue. In Stokes the defendant neither requested an instruction on the burden of proof on the issue of self-defense nor objected to the charge as given. Al- though affirming the conviction, the SJC declined to hide behind the Su- preme Court's suggestion in Hankerson that, in cases tried before Mullaney, “[t]he States, if they wish, may be able to insulate past convictions by enforc- ing the normal and valid rule that failure to object to a jury instruction is a 13a The practice of examining the giving or the failure to give a jury instruction in the context of the charge as a whole is firm- ly established. See, e.g., United States v. Park, 421 U.S. 658 at 674 (1975); Boyd v. United States, 271 U.S. 104 at 107 (1926); United States v. Harrigan, No. 78-1137 (1st Cir. Nov. 14, 1978); United States v. Garcia, 562 F.2d 411 at 416 (7th Cir. 1977); Commonwealth v. Leaster, 362 Mass. 407 at 416- 417, 287 N.E.2d 122 at 128 (1972). Cf. Dunn v. Perrin, 270 F.2d 21 at 25 (Ist Cir.), cert. denied, ___ U.S. ____ (1978) (finding obfuscation of “one of the ‘essentials of due process and fair treatment’” in the cumulative effect of three er- roneous instructions).* Mullaney, which states a substantive rule of constitutional law, does not change the established practice for appellate review of jury instructions. See Mullan- ey, supra at 690-691, n. 10; United States v. Harrigan, supra; Hallowell v. Keve, 555 F.2d 103 at 109-111 (3rd Cir. 1977). Federal court review of state trial jury instructions on col- lateral attack is governed by similar principles.® “[A] single waiver of any claim of error.” Hankerson, supra at 244, n. 8. The SJC con- cluded that, “with respect to trials occuring before Mullaney, a specific ob- jection to the judge’s instructions on burden of proof need not be shown in order to secure appellate review.” Stokes, supra at ___, 374 N.E.2d at 92. After answering the threshold question of the availability of appellate review to a pre-Mullaney defendant who did not object to the judge’s instructions on burden of proof, the SJC reiterated its belief that “The charge to the jury must be examined in its entirety to determine whether the constitutional re- quirements have been met.” Stokes, supra at ___, 374 N.E.2d at 93. *There may well be situations where a particular erroneous instruction is so offensive as to require reversal without regard to the remainder of the charge. See Cupp v. Naughton, 414 U.S. 141 at 147 (1973), citing Cool v. United States, 409 U.S. 100 (1972). Cf. United States v. Harrigan, supra (“the error was of such a nature that it could not be erased or diminished by the balance of the charge”). As might be surmised, the failure to give an in- struction is less problematical, in general, than the giving of an obviously im- proper instruction. Henderson v. Kibbe, 431 U.S. 145 at 155 (1977). *I note, however, that “[t]he burden. of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the l4a instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughton, 414 U.S. 141 at 146-147 (1973). See Dunn v. Perrin, supra; Hallowell v. Keve, supra. I will therefore ex- amine the Gagne jury charge in its entirety, as did the SJC. The judge at Gagne’s trial first gave the jury general instruc- tions describing their role, the role of the court and the attor- neys. He told them that they, and they alone, were the finders of fact; he told them what is and what is not evidence to be considered by them in finding the facts; and he told them, in general terms about inferences “which naturally and reason- ably and logically follow[s]” from facts. Tr. at 755. The judge gave the jury general instructions about the credibility of evidence. He then told them about the presumption of in- nocence and the Commonwealth’s burden of proving the de- fendant’s guilt beyond a reasonable doubt. The judge de- scribed clearly, accurately and repeatedly that the Common- wealth must prove the defendant’s guilt beyond a reasonable doubt. For example, the judge said: A defendant need not present any evidence of his in- nocence, but he may rest inactive and secure until the Commonwealth goes forward with the evidence that proves his guilt. This presumption of innocence means that a defendant is entitled to have a verdict of not guilty ordered by the Court, unless the evidence is sufficient to warrant a find- ing by the jury that he is guilty beyond a reasonable doubt. This presumption of innocence also means that the de- fendant is entitled to have a verdict of not guilty rendered constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal.” Henderson v. Kibbe, 431 U.S. 145 at 154 (1977). ~~ _ =" 15a by the jury, unless the evidence actually convinces the jury beyond a reasonable doubt that the defendant is guilty, even though this doesn’t result from a presump- tion of innocence. Tr. at 765-766. The judge also said: In order for a jury to be warranted in finding a defend- ant guilty in a criminal case, the Commonwealth must prove the guilt of such a defendant beyond a reasonable doubt and likewise must prove beyond a reasonable doubt all the essential elements of the crime with which the defendant is charged. Tr. at 769-770. The judge then discussed the meaning of proof beyond a reasonable doubt. After discussing the reasonable doubt standard, the judge turned to the substantive law of homicide. It is the instruc- tions in this part of the charge — specifically instructions re- garding the presumption or inference of malice — on which Gagne’s Mullaney claims focus. The judge told the jury that: “[mJurder is the unlawful killing of a human being with malice aforethought, and if one does it intentionally, that is without mitigation or excuse, taking the life of another human being, he does it maliciously,” (Tr. at 779) and that “malice is implied in every deliberately proven act against another . . .” Tr. at 780-781. The judge also told the jury that: Now a killing may be malicious and consequently murder, even though the slayer did not want to cause death. If a man intentionally and without legal justifica- tion or excuse or extenuation uses upon the body of an- 16a other a force, for example a bullet from a revolver that is (sic) used will probably do grievous bodily harm to that other person and will create a plain and strong likelihood that the other person would die as a result, the act is mali- cious within the meaning of the law, even though the doer of the act was indifferent as to whether death would re- sult or even wished or hoped that death would not result. Tr. at 781-782 (emphasis added) .!° The judge then continued: Now, the word malice, therefore, is used in a very technical sense. It not only includes hatred and ill will or revenge, but every other unjustifiable motive. It is a thing done with a malicious mind as when the act has been attended with such circumstances as to carry in them the plain implication of a heart, regardless of social duty, a heart bent upon mischief. It is enough if the kill- ing was intentional and was without legal excuse or justi- fication. Now, bear in mind, ladies and gentlemen that I’m speaking of murder generally and not the degrees of mur- der. The condition of mind, which permits one to do in- jury without excuse or justification, is malice in the con- templation of the law. When the fact of malice is shown there is nothing to rebut the natural presumption of malice for the rational probability is that a man of sound = intends the probable and natural consequences of is act. Tr. at 782-783. '°The emphasized portion of the quoted instruction was omitted by Gagne from his petition for rehearing. I note that an instruction may have a differ- ent meaning if read out of context. 17a Viewed in the context of the entire charge, the instructions of which Gagne complains! do nothing more than permit the jury to infer the existence of malice from the intentional doing of an unlawful act (in this case the use of deadly force) coupled with the absence of justification (self-defense) or mitigation (heat of passion on sudden provocation).'* While the judge told the jury that malice could be inferred or presumed '* from the use of deadly force, he repeatedly told the jury that the burden was on the Commonwealth to prove every element of the crime of murder beyond a reasonable doubt. The judge listed malice as one of those elements and consistently defined malice as requiring the absence of justification or mitigation. The jury could have interpreted these instructions only as per- mitting an inference of malice from other proven facts, subject to the reasonable doubt standard. Thus, the jury must have concluded from these instructions that although inferences may be drawn and may stand as sufficient by themselves in the absence of contrary evidence; malice in the sense of the non- existence of justification or mitigation, must be established by the Commonwealth beyond a reasonable doubt. Any confu- "'T note that Gagne neither requested an instruction on the burden of proof _on the issues of malice or self-defense, nor objected to the charge as given in these respects. Gagne did raise these issues in his motion for a new trial. See n. 7, supra. '2 Inferences or even presumptions, both of which may have the effect of shifting the burden of production, are normally permissible. See generally, Patterson v. New York, supra at 230-232 (Powell, J., dissenting). Any such inference or presumption, however, must bear a rational connection with the proved facts on which it is based, e.g., Tot v. United States, 319 U.S. 463 (1943); Allen v. County Court, 568 F.2d 998 (2d Cir. 1977), and it must not have the effect of shifting the burden of persuasion to the defendant. Mul- laney, supra. '?The trial judge apparently used the terms “presumption” and “infer- ence” interchangeably. 18a sion which the jury might have had when the judge discussed the inference of malice should have been dissipated by the judge’s later instructions. For example, the judge, in discuss- ing murder in the first degree, told the jury: In order to establish murder in the first degree under this particular section of the statute, it is not only neces- sary for the Commonwealth to prove that the killing was done with malice aforethought, but it must also appear that the act was deliberately premeditated. Tr. at 784-785 (emphasis added). The judge later said: . . . if there isn’t any deliberate premeditation, but there is malice aforethought that’s been proved beyond a reasonable doubt, then you have murder in the second degree. Tr. at 792 (emphasis added). The Gagne jury charge, viewed in its entirety, shifted to Gagne only the burden of production of evidence on the issue of malice. It did not shift to Gagne the burden of persuasion. Nothing in Mullaney prohibits a state from requiring a defend- ant to show that there is at least some evidence, whether his or the prosecution’s, on factors such as self-defense or heat of pas- sion “before requiring the prosecution to negate this element by proving the absence of [that factor] beyond a reasonable doubt.” Mullaney, supra at 701-702, n. 28. See Hankerson, supra at 230-231 (Powell, J., dissenting). See n. 12, supra. Gagne next contends that there was sufficient evidence of self-defense and heat of passion to raise a reasonable doubt with regard to malice and require the inference to be elimi- 19a nated from the case. He argues that by permitting the in- ference to remain, the trial judge relieved the Commonwealth of the burden of proving malice beyond a reasonable doubt and required Gagne to prove justification or mitigation. I disagree. Even if the evidence supportive of Gagne’s theory of the case was sufficient to rebut a presumption of malice, it did not concomitantly eliminate the permissible inference of malice: . . . although the presumption of a fact may have been dissipated, the permitted inference of that fact is not, thereby, automatically extinguished also. It may, as a survivor, have an independent life of its own. . .. The mere creation of a genuine doubt as to a fact is enough to dissipate the presumption of that fact, but that mere doubt is not enough to foreclose the permitted inference of that fact. The doubt simply places the question in the lap of the fact finder. Gilbert v. Maryland, 36 Md. App. 196 at , 373 A. 2d 311 at 317 (1977). The SJC found, however, and I agree, that “(t]he defendant’s testimony in rebuttal of the inference of malice was not sufficient to create a reasonable doubt as a matter of law.” Commonwealth v. Gagne, supra at 910 (foot- note omitted). See Mullaney, supra at 701-702, n. 28; Hankerson, supra at 237, n. 3. Seen. 12, supra. Moreover, read fairly, the judge’s charge at Gagne’s trial did no more than permit the jury to draw rational inferences. In effect, it placed the issue of malice in “the lap of the fact finder.” Ap- parently, the jury chose not to believe Gagne’s own testimony as to self-defense and provocation. I next consider Gagne’s contention that the SJC in its deci- sion on his petition for writ of error, Gagne v. Common- 20a wealth, supra, applied a more lenient constitutional standard than that applied to cases tried after the Mullaney decision. Gagne argues that the SJC has created three constitutional standards, one each for cases tried before Mullaney, after Mullaney but before Rodriguez, and after both Mullaney and Rodriguez. While Gagne does not elaborate on this argu- ment,'* I am convinced that it is rooted in the SJC’s language in Commonwealth v. Stokes, __. Mass. ___, 374 N.E.2d 87 (1978), to wit: We add that this court will bring greater expectations, and consequently more careful scrutiny of the judge’s charge as to these issues, in any case where the trial oc- curred after the date of Mullaney, and particularly after the date of Rodriguez. Commonwealth v. Stokes, supee at ___ 374 N.E..2d at 93. I agree with Gagne that the SJC has created a triple stand- ard for review of Mullaney claims, but I do not believe that the SJC has created a triple constitutional standard. The SJC’s footnote to the language quoted above states: “This consider- ation is a matter of Massachusetts practice. It in no way minimizes our retroactive application of the Mullaney require- ments themselves.” Id., at ___, 374 N.E.2d at 93, n. 4. Ap- parently, the SJC recognizes that Hankerson requires that Mullaney be given full retroactive effect.'5 As a matter of '*T note particularly Gagne’s failure to explain what the three standards he speaks of actually are. 'SIn fact, the SJC applied Mullaney retroactively even before the Supreme Court decided Hankerson. E.g., Rodriguez, supra. Furthermore, the SJC has chosen not to hide behind the Supreme Court’s Hankerson suggestion that a defendant's failure to object to a jury instruction in a pre-Mullaney 2la Massachusetts practice, however, the SJC requires that the Massachusetts courts conduct post-Mullaney and especially post-Rodriguez trials under a standard even stricter than that imposed by Mullaney itself. I know of nothing which pro- hibits a state from affording its defendants procedural protec- tion greater than that required by the Due Process Clause itself.!° I therefore reject Gagne’s triple-standard argument. Finally,'” I consider Gagne’s claim that the jury’s verdict was against the weight of the evidence. A writ of habeas cor- pus can be granted for insufficient evidence “only if there is such a void of evidentiary support as to amount to a denial of due process.” Grieco v. Meachum, 533 F.2d 713 at 721 (1st Cir.), cert. denied, 429 U.S. 858 (1976). I find no such void here. For the foregoing reasons, I deny Gagne’s petition for a writ of habeas corpus ad subjiciendum. An appropriate order shall issue. FRANK H. FREEDMAN, United States District Judge trial may be used to insulate the conviction. Commonwealth v. Stokes, supra at ___, 374 N.E.2d at 92. The SJC said: [I]t would be inconsistent to hold on the one hand that a substantive rule of constitutional dimension is completely retroactive and to insist, on the other hand, that defense counsel must have anticipated the rule in the form of an objection or exception before it may be applied retroactively. Id. Seen. 7, supra. 18] note in this regard that I believe that the SJC, at least in the context of the case at bar, gave Mullaney full retroactive effect in compliance with the Hankerson mandate. I also note that policy considerations weigh strongly against requiring a state to apply retroactively its own rule affording greater protection to defendants than the Constitution itself requires. ‘7 Any contentions raised by Gagne and not herein discussed are rejected by implication. 22a Appendix C. SUPREME JUDICIAL COURT RICHARD JOSEPH GAGNE vs. COMMONWEALTH. Suffelk. March 7, 1978. — June 19, 1978. Present. Hennessey, C.J., Kaptan, Witxins, Liacos, & ABRAMS, JJ. Homicide. Malice. Self-Defense. Practice, Criminal, Charge to jury. Evi- dence, Presumptions and burden of proof. Petition filed in the Supreme Judicial Court for the county of Suffolk on February 18, 1977. The case was reserved and reported by Braucher, J. William K. Danaher, Jr., for the plaintiff. John T. McDonough, Special Assistant District Attorney, for the Commonwealth. Wikins, J. In February, 1973, the petitioner (Gagne) was convicted of murder in the second degree. We affirmed the conviction in April, 1975. Commonwealth v. Gagne, 367 Mass. 519 (1975). Gagne then sought habeas corpus relief in the United States District Court for the District of Massachu- setts, where his principal contention was that he was denied due process of law as guaranteed by the Fourteenth Amend- ment because the trial judge failed to require the Common- wealth to prove malice beyond a reasonable doubt. He relied on Mullaney v. Wilbur, 421 U.S. 684 (1975), decided on June 9, 1975, whose pendency before the United States Supreme Court we noted in Commonwealth v. Gagne, supra at 523-524 n.2. A Federal District Court judge denied Gagne’s petition for a writ of habeas corpus, but he did not reach the merits because he concluded that Gagne had not exhausted his State reme- 23a dies. Gagne v. Meacham, 423 F. Supp. 1177, 1181 (D. Mass. 1976). The Federal judge concluded that this court should be given an opportunity to consider Gagne’s contentions in light of both Mullaney v. Wilbur and Commonwealth v. Rodri- guez, Mass. (1976) [Mass. Adv. Sh. (1976) 1864], in which we made clear that in the trial of an indictment for murder, where there is some evidence of self-defense, the Commonwealth has the burden of proving beyond a reason- able doubt that the defendant did not act in self-defense. Id. at - [Mass. Adv. Sh. (1976) at 1870-1871]. Gagne filed this petition for a writ of error in February, 1977, and a single justice of this court reserved and reported the case for our decision. We conclude that the judgment should be affirmed. The emphasis of Gagne’s challenge to his conviction has changed somewhat since we considered his appeal in 1975. In response to Mullaney v. Wilbur, Gagne focuses on the judge's charge and claims that the judge placed the burden on him to disprove malice arising from his use of a deadly weapon. Since our decision in Commonwealth v. Gagne, supra, on several occasions we have considered the application of the principles of Mullaney v. Wilbur. In Commonwealth v. Rodriguez, supra at _[Mass. Adv. Sh. (1976) at 1869], noted by the Federal judge (Gagne v. Meacham, 423 F. Supp. at 1181 n.2), we held that, “when the issue of self-defense is properly before the trier of fact, the Commonwealth must, as matter of due process, prove beyond a reasonable dubt that the defendant did not act in self-de- fense” (footnote omitted). In that case, we considered the charge as a whole and determined that the judge should have given a requested instruction placing the burden of proving the absence of self-defense on the Commonwealth, and that the charge otherwise was likely to have suggested to the jury “that the defendant had an affirmative burden to prove self- 24a defense.” Id. at - [Mass. Adv. Sh. (1976) at 1874-1875]. We concluded by saying that, when a timely request is made in any trial after the date of our decision, an instruction must be given that the Commonwealth bears the burden on the self- defense issue, where the evidence sufficiently raises that issue. Id. at [Mass. Adv. Sh. (1976) at 1876]. We did not decide whether there might be circumstances where such a charge must be given even in the absence of a request. Id. at n.9 [Mass. Adv. Sh. (1976) at 1876 n.9]. The propriety of the failure of a trial judge to charge the jury concerning the Commonwealth’s burden of proof on self- defense, reasonable provocation, and excessive force came before us in Commonwealth v. Stokes, Mass. (1978) {Mass. Adv. Sh. (1978) 610]. The trial of the Stokes case took place before the Supreme Court’s decisions in Mullaney v. Wilbur, 421 U.S. 684 (1975), and in Hankerson v. North Carolina, 432 U.S. 233 (1977) (giving complete retroactive ef- fect to Mullaney v. Wilbur), our decision in Commonwealth v. Rodriguez, supra, and our decisions in Commonwealth v. Johnson, Mass. , - (1977) [Mass. Adv. Sh. (1977) 516, 523-524], and Commonwealth v. Greene, Mass. , - (1977) [Mass. Adv. Sh. (1977) 944, 945-946] (Common- wealth has the burden of disproving provocation where it is an issue). In our Stokes opinion, we concluded that we should review the constitutional sufficiency of the judge’s charge even in the absence of a request for an instruction on the burden of proof. The same circumstance exists here. Gagne did not re- quest instructions concerning either malice or the burden of proof on the issue of self-defense, nor did he object to the charge in these respects.' We proceed, as we did in the Stokes ' Gagne did raise the issues in his motion for a new trial. The judge denied the motion for a new trial but allowed a request for a ruling that the burden was on “the Commonwealth to prove beyond a reasonable doubt that the Defendant did not act in self-defense and that the homicide was not justified.” 25a case, to determine whether the judge’s charge denied Gagne’s constitutional rights. As we said in the Stokes opinion, “the charge to the jury must be examined in its entirety to deter- mine whether the constitutional requirements have been met.” Id. at [Mass. Adv. Sh. (1978) at 620].* Gagne argues that the judge instructed the jury that malice was presumed from Gagne’s conduct, thus shifting to him the burden of overcoming that presumption. Such a shift of the burden of persuasion would be constitutionally impermissible. Hankerson v. North Carolina, 432 U.S. 233 (1977). Mullaney v. Wilbur, 421 U.S. 684 (1975). See Commonwealth v. Col- lins, Mass. , n.2 (1978) [Mass. Adv. Sh. (1978) 627, 633 n.2]. Gagne claims that the charge given here is similar to the charge considered in the Mullaney case as recited in Wilbur v. Robbins, 349 F. Supp. 149, 151 (D. Me. 1972). The charge considered in Mullaney v. Wilbur, however, expressly placed on the defendant the burden “to rebut the inference which the law raises from the act of killing.” Wilbur v. Rob- bins, supra. The defendant there had to satisfy the jury “by a fair preponderance of the evidence that . . . he killed in the heat of passion upon sudden provocation.” Id.° We indicated that as to trials occurring after the Mullaney decision, and particularly after our Rodriguez decision, we would bring “greater expecta- tions, and consequently more careful scrutiny” to charges on the issues of self- defense and reasonable provocation. Thus, on the same day as the Stokes de- cision, we reversed a conviction where, in a trial occurring after the Mullan- ey decision, but before our Rodriguez decision, the judge refused to give a re- quested instruction placing the burden of proof concerning reasonable pro- vocation on the Commonwealth. Commonwealth v. Collins, Mass. (1978) (Mass. Adv. Sh. [1978] 627). As will be noted subsequently, the charge in the Collins case, in any event, was misleading in a way in which the charge in this case was not. 3Current requirements of due process in the placing of burdens of proof in State criminal trials are at best only subtly discernible. Seemingly, a majori- ty of the Justices of the Supreme Court of the United States would find nothing wrong if the Legislature were to eliminate malice as an element of 26a In this case, on the other hand, nowhere in the charge does the judge expressly place any burden on Gagne to rebut any inference or any presumption, to disprove malice, or to prove justification, excuse, or mitigation. Nor do we see any such burdens placed on Gagne by inference. The judge did not tell the jury that Gagne had the burden to prove or to disprove anything. Repeatedly, the judge defined malice in a variety of words which indicated that malice could be proved only if Gagne’s conduct was unaccompanied by “legal justification or excuse or extenuation,” was “without mitigation or excuse,” or was “without justification, excuse or extenuation.” Repeat- edly, he also instructed the jury that the burden was on the Commonwealth to prove beyond a reasonable doubt every es- sential element of the crime charged. One of the essential ele- ments of murder, as he instructed the jury, is malice. As he defined malice as an element of murder, the Commonwealth had the burden of proving beyond a reasonable doubt that Gagne’s killing of the victim was intentional and without justi- fication, excuse, or mitigation. We view the judge’s charge in this respect, examined in its entirety, as falling within the language in our Stokes opinion describing a constitutionally acceptable charge. “For exam- ple, a jury charge might well be constitutionally sufficient which clearly placed the burden of proving malice beyond a the crime of murder and were to place on the defendant the burden of prov- ing, as an affirmative defense, for example, that he acted in the heat of pas- sion so as to justify a manslaughter verdict. See Patterson v. New York, 432 U.S. 197 (1977). The Patterson case appears to undercut any broad applica- tion of due process principles expressed in Mullaney v. Wilbur, and arguably may leave Mullaney v. Wilbur as representing merely a constitutional in- struction concerning the drafting of criminal statutes and the definition of common law crimes. See Patterson v. New York, supra at 221-225, where Mr. Justice Powell, the author of Mullaney v. Wilbur, dissented and criti- cised as formalistic the distinction between the two cases. See also Farrell v. Czarnetzky, 566 F. 2d 381, 382-384 (2d Cir. 1977) (Oakes, J., concurring). 27a reasonable doubt on the Commonwealth and contained other discussion which, although not referring to the burden of proof as to self-defense and reasonable provocation, adequately defined those factors and established them as negating a find- ing of malice.” Commonwealth v. Stokes, supra at _—_[Mass. Adv. Sh. (1978) at 620]. In this case, there are no extenuating and potentially mis- leading instructions such as we have seen in other cases. The self-defense language in the charge in Commonwealth v. Rodriguez, Mass. , - (1976) [Mass. Adv. Sh. (1976) 1864, 1873-1874], is significantly different from that in the charge in this case. The Rodriguez charge referred to the defendant as having sought “to justify his action” and to the jury’s possible finding that Rodriguez acted in self-defense. In the Stokes case, the judge discussed the evidence tending to mitigate a finding of malice, asking whether the evidence*was enough to justify a provocation or the use of a deadly weapon. Id. at n.5[Mass. Adv. Sh. (1978) at 621 n.5]. In the Collins case, the judge referred to evidence “from which the defend- ant seeks to establish that he, if he committed this killing, had justification — and he states that in terms of what we call self- defense” (emphasis in original). Commonwealth v. Collins, Mass. , (1978) [Mass. Adv. Sh. (1978) 627, 632]. We decline to depart from what we have said concerning the proper treatment of the inference of malice which may be, but need not be, drawn from evidence of the intentional use of a dangerous weapon. Commonwealth v. McInerney, Mass. , - (1977) [Mass. Adv. Sh. (1977) 1619, 1632- 1638]. Commonwealth v. Gagne, 367 Mass. 519, 522-524 (1975). We have departed of necessity, but as early as Com- monwealth v. Gagne, from the suggestion that a defendant has a burden to rebut an inference of malice which may arise from the use of a deadly weapon. We see no constitutional impediment, however, to a jury instruction that an inference 28a of malice may be drawn from the fact that a defendant used such a weapon, provided the jury are instructed that the Com- monwealth has the burden of proving malice, as properly defined, beyond a reasonable doubt. It is a common and expected function of triers of fact to draw reasonable inferences from established facts, and it is proper for judges so to instruct jurors. A judge does not violate constitutional principles of due process by advising the jury that, if they think it reasonable, they may infer the existence of malice from the fact, proved beyond a reasonable doubt, that a defendant shot the victim, stabbed him, or otherwise harmed him with a deadly weapon. The judge’s charge in this case, read fairly in its entirety, did no more than this. See Commonwealth v. Peters, Mass. , - (1977) [Mass. Adv. Sh. (1977) 684, 690-691]. Gagne argues next that the testimony of one witness, William R. Roberts, was inherently incredible and that, because that evidence related to malice and contradicted Gagne’s explanation of the shooting, he was denied a fair trial. Roberts's credibility was for the jury, and his testimony was not inherently incredible. We need not consider the conse- quences if that testimony had been inherently incredible. Finally, Gagne argues that he was denied due process of law because this court misstated certain facts in its opinion in Commonwealth v. Gagne, supra at 526-527. The issue arises in the context of our previous consideration of the question whether, in denying Gagne’s motion for a new trial, the judge abused his discretion by declining to order a new trial on the ground that the verdict was against the weight of the evi- dence. Id. at 526. We concluded that there was no abuse of discretion and that there was sufficient evidence to support the verdict, but the opinion misstated two facts. We said that Gagne shot the victim twice and that Gagne had been carrying a gun “for only a few days.” Id. at 527. The facts are that, 29a although Gagne shot twice, the victim was apparently struck only once, and it was the victim, not Gagne, who had carried a gun for only a few days. These misstatements do not affect our conclusion and do not constitute a denial of due process of law. The evidence warranted Gagne’s conviction, and the trial judge did not abuse his discretion in denying the motion for a new trial. Judgment affirmed. 367 Mass. 519 519 COMMONWEALTH v3. RICHARD JOSEPH GAGNE. Hampden. December 2, 1974. — April 28, 1975. Present: Tauro, C.J., Rearpon, Qumuco, Baaucnen, Hennasszy, KAPLan, & Wirauns, JJ. Homicide. Malice. Self-Defense. Practice, Criminal, Charge to jury, New trial. At a murder trial, where there was evidence that the defendant in- tentionally fired shots from a revolver which killed the victim, evidence tending to support the defendant's contention that the shooting was in self-defense did not as matter of law rebut or eliminate the inference of malice on his part arising from his use of a deadly weapon, but merely presented a factual issue for the jury. [522-524] There is a duty to retreat, if possible, before resorting to the use of deadly force in self-defense where one is attacked in his place of business. [524-525] , Although a certain issue could have been, but was not, raised by defendant at a criminal trial, where he sought to raise it on a mo- tion for a new trial and the judge in his discretion ruled on it, the ruling was open to review on appeal. [525-526] Although the charge to the jury in a murder case could have been more specific in explaining that excessive force in self-defense or failure to retreat could warrant a finding of only manslaughter, the lack of specificity did not constitute reversible error in the cir- cumstances. [526] In a murder case where it appeared that the defendant shot and killed the victim at the defendant's place of business after he had closed it one evening and that the defendant relied on self-defense with respect to the shooting, there was, on the record, no merit in a contention by the defendant that a new trial should be granted on the ground that a verdict of guilty of murder in the second degree was against the weight of the evidence. [526-527] INDICTMENT found and returned in the Superior Court on March 8, 1971. The case was tried before Tisdale, J. 520 3la 367 Mass. 519 Commonwealth vo. Gagne. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review. William K. Danager, Jr. (Daniel M. Keyes, Jr., with him) for the defendant. John T. McDonough, Assistant District Attorney, for the Commonwealth. Tauro, C.J. The defendant was convicted of murder in the second degree and appeals pursuant to G. L. c. 278, §§ 33A-33G. He assigns as error (1) the trial judge's failure to direct a verdict on so much of the indictment as charged murder, (2) the judge's refusal to grant a new trial, and (3) the instructions to the jury on malice and self-defense. We find no error and affirm the judgment below. The evidence at the trial was contradictory, with the following testimony introduced: The defendant was a pharmacist employed in a pharmacy owned by his father. On the night of the homicide, the defendant closed the store at approximately 9 p.m. but remained working in the prescription area in the rear. Sometime after ten o'clock the defendant heard glass break in the front of the store. He drew his revolver, went to the front to investigate, and found a window broken. He opened the door and searched the area outside but was unable to find anyone. He returned to the store and started to call the police when he heard the sound of someone running inside the pharmacy. He saw someone trying to get out the front door who then turned toward the defendant, said “son-of-a-bitch,” and pointed a gun in his direction. The defendant took his revolver out of his pocket and fired two shots. The victim fell and the defendant immediately called the police. The defendant was taken to the police station, where he gave a statement disclosing essentially the facts set out above. It was subsequently revealed that the defendant had known the victim prior to the shooting and had attempted to assist him with some problems the victim 367 Mass. 519 32a 521 Commonwealth vo. Gagne. was having with Provincetown authorities regarding his position as a pharmacist there. The victim had attended the pharmacy school where the defendant taught, and in fact had had the defendant as a teacher. Approximately two months before the shooting, the defendant had informed the victim that he could not help him. In his statement to police, the defendant was very specific as to everything he had done on the night of the shooting. However, the day after the incident, he notified police that he forgot to tell them about a telephone call from Mrs. Helen A. Simkins, with whom he was talking when he heard the glass break, and who held the line open while he made his search. Mrs. Simkins testified in the defendant's behalf. The defendant also had neglected to tell police in his statement about one Frederick Wasilenko. who the defendant later claimed had come into the store between 10 and 10:20 p.m. to purchase some items. The defendant told police about Wasilenko after the police had been informed by one William R. Roberts that he had seen the defendant and another man conversing in the store between 10:15 and 10:30 p.m. Roberts de- scribed the man he had seen in the store, and although Wasilenko, whom he had known for many years, fit the description, Roberts testified that he was certain it was not Wasilenko. The defendant’s testimony at the trial was substantially the same as his prior statement to police, except for the telephone call from Mrs. Simkins and the visit by Wasilenko. There was some inconsistency in the timing of the calls and visits, but otherwise defense witnesses corroborated the defendant’s account of the night in question. The defendant contends that he was surprised by an intruder whose identity was not known to him at the time and upon being faced with a gun he reacted in self-defense by shooting his assailant. The Common- wealth’s contention was somewhat different: It contended 522 oe 367 Mass. 519 Commonwealth o. Gagne. that the defendant and the victim had a pre-arranged meeting, something went wrong, and the defendant shot and killed the victim. The case went to the jury with instructions on murder in the first degree, murder in the second degree, and manslaughter, and the jury returned a verdict of guilty of murder in the second degree. 1. The defendant assigns as error the denial of his motion for a directed verdict on so much of the indictment as charged murder. He contends that the Commonwealth failed to make out a prima facie case of murder and that reliance on the presumption of malice was error. We disagree. It has long been recognized in this Commonwealth that malice may be inferred from the intentional use of a deadly weapon. Commonwealth v. Webster, 5 Cush. 295, 305 (1850). Commonwealth v. York, 9 Met. 93, 103 (1845). Commonwealth v. Young, 326 Mass. 597, 600 (1950). Commonwealth v. Kendrick, 351 Mass. 203, 209-210 (1966). The existence of malice may be rebutted, however, by showing that the homicide was committed in self-defense and is therefore excusable, or by showing circumstances which, although not justifying the act, would mitigate the crime from murder to manslaughter. Commonwealth v. Kendrick, supra. 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, and the defendant’s reliance on the York, Webster, and Kendrick cases, supra, is misplaced. In the instant case, the Commonwealth’s contention was supported by evidence of the defendant’s prior relationship with the victim and his having been seen talking to someone who fit the description of the victim immediately before the killing. Additionally, the jury may have disbelieved testimony of the two defense 367 Mass. 519 7” 523 Commonwealth o. Gagne. witnesses, who were not included in the defendant's original statement, as an attempted cover up. Thus, the jury were warranted in finding that the gun was fired intentionally and in inferring malice from the circum- stances, as the verdict indicates. In sum, we cannot agree that the inference of malice was rebutted as matter of law. The jury were not required to believe the defendant or his witnesses. The mere fact that there was some evidence in support of the defendant's theory did not, per se, eliminate the inference of malice. It merely presented a factual issue for resolution by the jury.!. The burden at all times was on the Commonwealth to prove the defendant guilty beyond a reasonable doubt. The defendant’s testimony in rebuttal of the inference of malice was not sufficient to create a reasonable doubt as matter of law. We there- "The Supreme Court of Pennsylvania, in a similar case challenging the “presumption of malice,” agreed with the holding we reach here. The court there stated: “Such a presumption does not mean that the jury must conclude, upon proof of a felonious homicide, that malice existed, but that, upon such proof being made, and in the absence of extenuating circumstances, a jury is warranted in determining that malice has been sufficiently shown to justify a conviction of murder; whether, under all the evidence in the case, malice did in fact exist, is for the jury's ultimate decision.” Commonwealth v. Wucherer, 351 Pa. 305, 311 (1945). Although this case was decided before In re Winship, 397 U. S. 358 (1970), which raised the “beyond a reasonable doubt” standard to constitutional dimension, the holding was reaffirmed in Commonwealth v. O'Neal, 441 Pa. 17 (1970), which postdated the Winship case. Similarly, the Michigan Court of Appeals recognized, as we do here, that we are involved with a “permissible inference rather than 6 presumption” when discussing malice in this context. People v. Morrin, 31 Mich. App. 301, 318 (1971). State v. Cuevas, 53 Hawaii 110 (1971), cited by the defendant, does not indicate a contrary result, as there the court struck down as unconstitutional a mandatory presumption of malice. Under our law, the inference of malice is merely permissive, and the issue is ultimately left to the jury for determination. *This is not like Wilbur v. Mullaney, 496 F. 2d 1303 (Ist Cir. 1974), cert. granted 419 U. S. 823 (1974), where arguably the burden 524 35a 367 Mass. 519 Commowealth vo. Gagne. fore hold that the trial judge’s refusal to direct a verdict on the murder charge was not error. 2. The defendant contends that the judge erred in charging the jury that the law infers malice from the use of a deadly weapon. The defendant argues that the judge, in doing so, effectively took the case out of the category of manslaughter. After careful review of the charge as a whole, Commonwealth v. Pinnick, 354 Mass. 13, 15 (1968); Commonwealth v. Benders, 361 Mass. 704, 708 (1972); Commonwealth v. King, 366 Mass. 6, 10 (1974), 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. 3. The defendant next argues that the judge erred in charging the jury that the defendant had a duty to retreat before resorting to the use of deadly force. There is no merit to this contention. Although the defendant recognizes that we follow the rule that a person attacked with deadly force must retreat whenever it is possible to do so in safety, Commonwealth v. Crowley, 168 Mass. 121, 126 (1897), Commonwealth v. Houston, 332 Mass. 687, 690 (1955), Commonwealth v. Kendrick, 351 Mass. 203, 211-212 (1966), he urges us to create an exception where one is attacked in his place of business. See, e.g., State v. Sharpe, 18 N. C. App. 136 (1973); Commonwealth v. Johnston, 438 Pa. 485 (1970). See also anno. 41 A. L. R. 3d 584 (1972). In Commonwealth v. Shaffer, ante, 508, 511 (1975), we were asked to adopt a similar exception where one is threatened in his own home. We declined to do so, hold- ing that the location of the assault is just one of the fac- tors, although an important one, to be considered by the jury. See Commonwealth v. Barton, ante, 515, 518, was placed on the defendant to prove the elements of mitigation. Here, the prosecution began with, and retained, the burden of proving every element of the offense beyond a reasonable doubt. 367 Mass. 519 36a 525 Commonwealth ov. Gagne. (1975). The reasoning of the Shaffer case applies equally to the instant case.’ Accordingly, there was no error in the judge's instruction that the right of self-defense does not accrue unless a person has reasonably availed himself of all proper means in his power to avoid the combat. The defendant argues that even if there is a duty to retreat, the trial judge erred in failing to charge the jury specifically that they should consider that the assault took place in the defendant's place of business. Although we stated in the Barton case, supra, at 518, fn. 2, that the best procedure is for the judge to explain specifically what factors are to be considered, we cannot say that, taken as a whole, the charge in this case constituted reversible error. The judge instructed the jury to consider all the circumstances in determining whether the defendant was justified in using deadly force. He distinguished between an attack in the home and one on the highway,‘ and left it for the jury to determine what the facts of this case required. In light of all the circumstances, we find no error in the judge’s charge. 4. The defendant argues that the judge erred in his charge to the jury because he did not make clear that, if the jury found that the defendant acted in self-defense *See Commonwealth v. DeCaro, 359 Mass. 388, 390 (1971), where we stated, “The defendant's . . . [contention] that there is om ment of retreat . . . where the attack occurs at the place of employ- ment of the one attacked, find[s] no support in our law.” *In his charge, the judge stated: “I think we all would give different considerations to the matter on the question of self defense if it was in a person’s home, as distinguished from where the act was out on a highway, or in the woods, or something like that.” Some- time later, in response to a question asked by the jury, the judge stated: “The jury should consider the situation as it looked to him .... Consider all that took place, what the defendant had seen and heard there are to be considered as circumstances bearing on the defendant's situation. You are also to consider all that took place where the homicide took place. . . . You should determine the facts — what took piace at this pharmacy on this night as it comes to your attention by virtue of the evidence produced in this courtroom.” 526 37a 367 Mass. 519 Commonwealth o. Gagne. but went beyond what was necessary in the circum- stances, the offense would be manslaughter. Defense counsel did not object to this aspect of the charge at trial, and ordinarily it would not be before us for review. Commonwealth v. Concepcion, 362 Mass. 653, 654 (1972). However, the defendant, in connection with his motion for a new trial, made a request for a ruling on this question, which request was ruled on and denied by the trial judge. Since the judge exercised his discretion in favor of considering the issue, we may also consider it on review. Commonwealth v. Blondin, 324 Mass. 564, 566-567 (1949), cert. den. 339 U. S. 984 (1950). We find no error. In examining the jury charge as a whole, we are convinced that the jury were made aware of all the options available in reaching their verdict. Although the charge could have been more specific in explaining that excessive force or failure to retreat could warrant a finding of manslaughter, the lack of specificity in the instant case, when considered in light of all the circumstances, does not constitute reversible error. 5. The defendant contends that the trial judge erred in denying his motion for a new trial. Such a motion is addressed to the sound discretion of the trial judge, Commonwealth v. Hamilton, 353 Mass. 746 (1967); Commonwealth v. Breen, 357 Mass. 441, 448 (1970), and we find no abuse of discretion. In support of his motion, the defendant argued the points discussed earlier in this opinion. As we have stated, we find no merit in any of these contentions. Neither is there merit to the defendant’s argument that the verdict was against the weight of the evidence. There was sufficient evidence from which the jury could have found that more than an hour after closing the defendant met in his place of business with a person he knew and with whom he had prior dealings. The two conversed, and then as the victim approached the door, he was shot twice with a gun the defendant had been 38a 367 Mass. 527 527 Delle Chiaie 0. Commonwealth. carrying for only a few days. Although these inferences were not required from the evidence, they were both reasonable and possible. That is all that is n R Commonwealth v. Medeiros, 354 Mass. 193, 197 (1968). Commonwealth v. Lussier, 364 Mass. 414, 421] (1973). Commonwealth v. Gilbert, 366 Mass. 18, 29 (1974). Commonwealth v. Montecalvo, ante, 46, 54 (1975). Accordingly, there was no error in the trial judge’s refusal to grant a new trial. 6. Pursuant to the requirements of G. L. c. 278, § 33E, we have reviewed the entire transcript and record and have found no reason either to order a new trial or to direct a verdict of a lesser degree of guilt. Judgment affirmed. 39a Appendix E.* THE TRIAL JuDGE’s CHARGE TO THE JURY. The trial judge’s charge to the jury with respect to the issues relevant to this appeal can be summarized as follows: Introductory Part of Charge. A. Jury told of two great principles of the common law — presumption of innocence and burden of proof (A. 72; Tr. 764). B. Explanation of the presumption of innocence (A. 73-77; Tr. 765-769). 1. Defendant is entitled to a directed verdict unless the trial judge rules that the evidence is sufficient to warrant a finding by the judge that defendant is guilty beyond a reasonable doubt (A. 73-74; Tr. 765-766). *Page references introduced by “A.” are to the pagination of the record appendix in the Court of Appeals; those introduced by “Tr.” are to the pagination of the original trial transcript. 40a 2. Defendant is entitled to have a verdict of not guilty rendered by a jury unless the evidence actually convinces the jury beyond a reasonable doubt that the defendant is guilty, even though this does not result from a presumption of in- nocence (A. 74; Tr. 766). C. Explanation of the burden of proof beyond a reasonable doubt (A. 77-82; Tr. 769-774). 1. Commonwealth must prove all elements of crime beyond a reasonable doubt (A. 78; Tr. 770). 2. The weight of the evidence is what counts (A. 78; Tr. 770). 3. Does not mean beyond all doubt, etc., but does mean proof to moral certainty (A. 78-79; Tr. 770-771). 4. Strong probability of guilt is not enough (A. 79; Tr. 771). 5. Well grounded suspicion is not enough (A. 80; Tr. 772). 6. Again, means proof to a moral certainty (A. 81; Tr. 773). 7. Proof to a moral certainty need not be proof to a mathematical certainty, etc. (A. 81; Tr. 773). D. Explanation of what facts must be proved beyond a reasonable doubt (A. 82-83; Tr. 774-775). 1. All material facts (A. 82; Tr. 774); “material” explained as “those facts which are essential to the conviction of the defendant . . .” (A. 82; Tr. 774). 2. “If there are other matters of facts which are in issue, between the parties, which, in your judgment, are unimpor- tant or without the proof of which you would be satisfied in reaching your conclusion, then you would be warranted in saying that those facts are not essential and it would not be necessary that they should be established within this degree of proof; namely, proof beyond a reasonable doubt” (A. 82; Tr. 774). 3. “The facts which must be proved by the Commonwealth beyond a reasonable doubt, are those facts which are essential to the conviction of the defendant; collateral issues which are 4la not important or material on the question of the defendant's guilt do not have to be proved by that degree of proof” (A. 82: Tr. 774). 4. “There is this distinction, which I have just told you before. Facts relied upon by the Commonwealth in proving a case and facts which are necessary to the proof of the case. Not all of the facts relied upon need be proved beyond a reasonable doubt, but all facts essential to the guilt of the defendant must be proved to that degree; namely, to the degree of proof beyond a reasonable doubt” (A. 82-83; Tr. 774-775). 5. “Where the evidence is as consistent with innocence as it is with guilt, the Defendant must, of course, be found not guilty” (A. 83; Tr. 775). Substantive Part of Charge. E. Explanation of “murder” (A. 87-100; Tr. 779-792). 1. Murder is “the killing of a human being without legal justification or excuse and without such extenuating cir- cumstances as may reduce the crime to manslaughter, but a killing which is called in the law ‘With malice aforethought' ” (A. 87; Tr. 779). 2. “Murder is the unlawful killing of a human being with malice aforethought, and if one does it intentionally, that is without mitigation or excuse . . . he does it maliciously. The intention of doing supplies the knowledge” (A. 87; Tr. 779). 3. Malice aforethought is a technical expression coming down from generations and needs explanation (A. 88: Tr. 780). 4. Malice does not necessarily mean ill will or hatred, but it can (A. 88; Tr. 780). 5. “Malice, in law, as used in the expression malice aforethought . . . [means] [a]ny intentional killing . . . without legal justification or excuse, with no extenuating circum. 42a stances such as heat of blood, anger, [or] passion, sufficient in law to reduce the crime to manslaughter” (A. 88; Tr. 780). 6. Malice includes hatred, resentment, ill will, revenge, and every other unlawful and unjustifiable act or motive. It is intended to denote any actions growing out of a wicks2 or cor- rupt motive (A. 88; Tr. 780). 7. “[MJalice is implied in every deliberately proven act against another and a suggestion of the mind, as you know, operates in an almost infinitesimal interval” (A. 88-89; Tr. 780-781). 8. “The purpose is formed and the act accomplishes the purpose. It doesn’t linger behind the purpose but may follow close upon the purpose and if the act is unlawful and un- justifiable, it is malicious no matter how suddenly it hap- pened” (A. 89; Tr. 781). 9. “[T]he word aforethought in the expression malice aforethought does not require deliberately premeditated malice or intention to do wrong. If the killing is intentional, though the act follows the thought immediately, without justification, excuse or extenuation, the killing is with malice aforethought within the meaning of that very technical and somewhat misleading expression in the law and it is murder and not manslaughter” (A. 89; Tr. 781). 10. “Now, a killing may be malicious and consequently murder, even though the slayer did not want to cause death. If a man intentionally and without legal justification or excuse or extenuation uses upon the body of another a force, for example a bullet from a revolver that is [sic] used will probably do grievous bodily harm to that other person and will create a plain and strong likelihood that the other person would die as a result, the act is malicious within the meaning of the law, even though the doer of the act was indifferent as to whether death would result or even wished or hoped that death would not result” (A. 89-90; Tr. 781-782). 43a 1l. “It is enough if the killing was intentional and was © without legal excuse or justification” (A. 90; Tr. 782). 12. “Now, bear in mind, Ladies and Gentlemen that I'm speaking of murder generally and not the degrees of murder. The condition of the mind, which permits one to do injury without excuse or justification, is malice in the contemplation of the law. When the fact of malice is shown there is nothing to rebut the natural presumption of malice for the rational probability is that a man of sound mind intends the probable and natural consequences of his act” (A. 90-91; Tr. 782-783). 13. “[I]f I point a gun at one of you at close range, I'd be committing an assault upon you, and more so if the weapon is a dangerous weapon and a gun is. . . a dangerous weapon: an assault can be committed by a person without touching the body of the person assailed . . . and if the person carries out the assault by touching the person, then there has been a battery. . . . So what, in effect, this indictment says is that there was a pointing of a weapon and there was a firing of a weapon and the bullet hitting the deceased was a battery. As a result of that assault and battery Robert Kowalski died” (A. 99: Tr. 791). F. Explanation of manslaughter (A. 100; Tr. 792-796). There are two kinds of manslaughter: 1. Manslaughter is “the unlawful killing of a human being without malice” (A. 100; Tr. 792). 2. If done “in sudden passion or heat of blood, or caused by reasonable provocation deemed to be adequate in the law. then it becomes manslaughter” (A. 100; Tr. 792). 3. “The characteristic distinction between murder and manslaughter is malice” (A. 101; Tr. 793). 4. “Unless [it is] a sudden combat, there must be some ade- quate provocation given by the deceased to reduce the crime of killing to manslaughter” (A. 101; Tr. 793). 44a 5. “If the death of the victim, though intended, was in- flicted immediately after provocation given by the deceased, which provocation the law deems adequate, to excite sudden and angry passion or create heat of blood, the fact of the malice is rebutted, but the homicide being unlawful is manslaughter” (A. 101; Tr. 793). 6. Quoting Commonwealth v. Webster, 5 Cush. 295 (1850), at 304, 305: “Manslaughter is the unlawful killing of another without malice and may be either voluntary, as when the act is committed with a real design and purpose to kill, but through the violence of a sudden passion, occasioned by some great provocation, which in tenderness for the frailty of human nature the law considers sufficient to palliate the criminality of the offense; or involuntary, as when the death of another is caused by some unlawful act, not accompanied by any intention to take life. If death, though willfully intended was inflicted immediately after provocation given by the deceased, supposing that such provocation consisted of a blow or an assault, or other provocation on the deceased’s part which the law deems adequate to excite sudden and angry pas- sion and create heat of blood, this fact rebuts the presumption of malice but still the homicide being unlawful because a man is bound to curb his passions, is criminal and is manslaughter” (A. 102; Tr. 794). 7. “In considering what is regarded as adequate provoca- tion, it is a subtle rule of law that no provocation by words only, however insulting, will mitigate an intentional homicide as to reduce it to manslaughter. Manslaughter is principally distinguishable from murder in this; that though the act which occasions the death is unlawful, or likely to be attended by bodily mischief, yet the malice, either expressed or implied, which is the very essence of murder, is presumed to be want- ing; and, the act being imputed to the infirmity of human a a ns OL leet set Re a Ce 45a nature, the correction ordained for it is propurtionately lenient” (A. 102-103; Tr. 794-795). 8. “Now, what about provocation? Now what provocation will suffice to reduce an intentional killing to manslaughter? The law does not attempt to define in any narrow way the provocation that will reduce the provocation [sic] to man- slaughter. The rule is that the provocation must be such as would be likely to produce in an ordinary man such a state of passion, anger, fear or nervous excitement, as might lead to an intentional homicide, and moreover, such as did actually pro: duce such a state of mind in the slayer” (A. 103; Tr. 795). 9. “The most common case in which the law recognizes that such a state of mind may be produced, is the case of assault by the deceased upon the slayer or a member of hi: family” (A. 103-104; Tr. 795-796). 10. “It is not every provocation exciting sudden and angrs passion and creating heat of blood that rebuts malice. Passion without adequate provocation is not enough. No words of reproach, however grievous or contemptuous or insulting. however they may intend to enrage the person against whom they are directed — no such words of reproach will be suffi- cient to reduce a homicide to manslaughter” (A. 104; Tr. 796). G. Explanation of “self-defense” (A. 106-107; Tr. 798-802): “I have one more general subject to discuss with you” (A. 106: Tr. 798). . 1. “[T])he great issue is: did this defendant commit an il legal homicide or was he acting in self-defense?” (A. 106-107: Tr. 798-799). 2. “Now, the general rule on self defense is that a person has no right to defend himself with a dangerous weapon likely to cause serious injury or death to an assailant unless it appears that he is under a reasonable apprehension of great bodily, harm and a reasonable belief that no other means would suf. fice to prevent such harm” (A. 107; Tr. 799). 46a 3. “In addition, the right of self defense does not accrue to a person unless he has availed himself of all proper means in his power to decline the combat” (A. 107; Tr. 799). 4. “If a defendant used a dangerous weapon under cir- cumstances which did not justify its use, or if he exceeds the limits justified by the occasion, he is not entitled to that defense of self defense” (A. 107; Tr. 799). 5. “To put it another way, it is the law that when a person is assailed or assaulted and lie, acting under a reasonable ap- prehension that he is in imminent danger of great bodily harm, and that it is necessary to take action to protect himself from such danger and that there is no other way to escape such potential harm, has the right to protect himself by the use of whatever is necessary, using whatever is appropriate and ade- quate to protect himself from impending danger, provided, however, that his assailant is upon him, threatening him, or doing acts that endanger his personal safety through serious in- jury or worse to his person” (A. 107-108; Tr. 799-800). 6. “If he is so assailed and reasonably thought his personal safety was imperiled, he is to be judged by the circumstances existing at such time. If the defendant acted as a person of or- dinary prudence, even though he misjudged the potentiality of the circumstances and if, also, he reasonably believed his own person was in danger of serious injury, then the law says that he may protect himself by such means as he may have at hand” (A. 108; Tr. 800). 7. “The foregoing principles of the law of self defense is [sic] subject to certain important limitations. Since the right to de- fend one’s person arises from necessity, it stops when necessity ends. In defending himself, a person has no right to use such weapon, a dangerous weapon or such force or violence beyond what, in the honest exercise of his judgment and the existing circumstances . . . [is] actually required for his defense. 47a “By way of an example: you cannot justify shooting a person because he punched you in the eye or kicked you in the shins. or curses you, or visits upon you some other personal indignity One expecting to be attacked should first employ whatever means are within his power to avert the necessity of self defense, especially if such defense involves the use of a dangerous weapon such as a loaded pistol or revolver, and un. til he does so, the right of self defense does not exist. The right of self defense does not become available to a person assaulted until he has availed himself of all reasonable and proper means to decline the combat. And, a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1166%3A1. Public record. Not legal advice.