Com. v. Hicks

• Decision Date: 02 December 1969
• Citation: 356 Mass. 442,252 N.E.2d 880
• Parties: COMMONWEALTH v. Malcolm F. HICKS et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 880

252 N.E.2d 880

356 Mass. 442

COMMONWEALTH v. Malcolm F. HICKS et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 3, 1969.

Decided Dec. 2, 1969.

Reuben Goodman, Boston, for defendants.

James E. Foley, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK, and REARDON, JJ.

KIRK, Justice.

The defendants Hicks and Hubbard were charged in a single indictment with the murder of Alfonse Vadeikis. After a trial subject to G.L. c. 278, §§ 33A-33G, the jury returned a verdict of guilty of murder in the second degree as to each defendant. The case is before this court on appeals accompanied by a summary of the record, a transcript of the testimony, the exhibits, and assignments of error.

We summarize the evidence. At some time after 11:40 P.M. on August 28, 1967, and before 12:05 A.M. on August 29, Alfonse Vadeikis was found lying between two parked automobiles on West Broadway in South Boston, approximately opposite the South Boston Cafe. The police took him to the Boston City Hospital, where he was pronounced dead at approximately 1:25 P.M. on August 29, 1967.

A witness who lived at 203 West Broadway testified that as he was walking home he heard loud voices. When he looked up the street he saw three men and heard them 'hollering at each other,' and saw one of the men throw another down between two parked cars. He observed one of the men throw something and heard the smash of a window. He then saw the two men, whom he identified in court as the defendants Hicks and Hubbard, cross the street and enter the South Boston Cafe. A woman who lived in the house in front of which Vadeikis was found testified that she heard loud voices and the breaking of glass. She looked out the window and saw a man lying on his back in the gutter, and two men standing over him. She saw one of the two men bring his foot 'right down on top' of the prostrate man's stomach, and say, 'Now you will stay away from the car.' The two men then crossed the street and entered the South Boston Cafe. Baker, 346 Mass. 107, 109, 190 N.E.2d 555. August 28, 1967, Vadeikis and the defendants had been customers in the South Boston Cafe, but that Vadeikis did not know the defendants and did not speak with either of them. Vadeikis left the barroom at approximately 10 P.M. and the defendants an hour later. Vadeikis' automobile was parked across the street, and the defendant Hicks' car was parked about twenty feet behind it. Both were station wagons. Hicks' car was light blue and Vadeikis' light green, but Vadeikis' car looked bluish under the lights. It was agreed that Vadeikis was nearsighted.

Dr. Richard Ford, the medical examiner who performed the autopsy on Vadeikis, testified that death was due to the tearing of the bowel attachment and bleeding in the belly cavity, caused by 'blunt impact to the belly wall, with sufficient force to drive the muscles in and shove the belly so far that its attachment is stretched and torn.' He further testified that the injuries were consistent with impact from a shod foot, that there must have been considerable force, and that there was in his opinion more than one impact.

1. We treat the case as a 'capital case.' G.L. c. 278, § 33E. Commonwealth v. Baker ,346 Mass. 107, 109, 190 N.E.2d 555. The judge charged the jury on murder and on manslaughter. The defendants assign as error the refusal of the judge to reduce the crime charged from murder to manslaughter. We regard the motion as one for a directed verdict of not guilty of murder. If there was evidence which warranted the verdict of guilty of murder in the second degree there was no error in denying the motion. 'Murder in the second degree is unlawful killing with malice aforethought,' but without the deliberate premeditation which characterizes murder in the first degree. Commonwealth v. Bedrosian, 247 Mass. 573, 576, 142 N.E. 778, 779. "Malice' as here used does not necessarily imply ill will toward the person killed, but has a more comprehensive meaning, including any intent to inflict injury upon another without legal excuse or palliation.' Ibid. 'Malice includes 'every * * * unlawful and unjustifiable motive' and is 'implied from any deliberate or cruel act against another, however, sudden.'' Commonwealth v. Leate, 352 Mass. 452, 456, 225 N.E.2d 921, 924, and cases cited.

The throwing of Vadeikis to the ground and the kicking of him in the stomach with such force as to cause death by internal bleeding amply warranted a finding of malice, which is the element distinguishing murder from manslaughter. The verdict of the jury impliedly rejected the defendants' contention that the killing occurred in 'a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat,' which, if accepted, would mitigate what otherwise would be murder to manslaughter. Commonwealth v. Soaris, 275 Mass. 291, 299, 175 N.E. 491, 494; Commonwealth v. Hartford, 346 Mass. 482, 490-491...