Com. v. Lacasse

• Decision Date: 06 May 1974
• Citation: 310 N.E.2d 605,365 Mass. 271
• Parties: COMMONWEALTH v. Fernand J. LACASSE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 605

310 N.E.2d 605

365 Mass. 271

COMMONWEALTH v. Fernand J. LACASSE.

Supreme Judicial Court of Massachusetts, Essex.

Argued April 2, 1974.

Decided May 6, 1974.

Francis J. DiMento, Boston (Thomas C. Cameron, Boston, with him) for defenant.

John J. Jennings, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

REARDON, Justice.

The defendant was indicted for first degree murder and tried before a jury in the Superior Court where he was found guilty of manslaughter. The case was taken by the Appeals Court under G.L. c. 278, §§ 33A--33H, and the judgment was affirmed. The defendant's application for further appellate review under G.L. c. 211A, § 11, was granted limited to the issues raised by the defendant's fifth assignment of error, viz., whether there was error in 'refusing to charge the jury that, with respect to involuntary manslaughter, the defense of self-defense is available to the defendant.' We conclude that on the evidence adduced at trial there was no error.

The evidence could have shown that the decedent, Bruce Jordan, was a tenant in a building owned by the defendant in Lawrence. On December 12, 1971, the defendant, having learned that Jordan appeared to be moving another person into the apartment, went there that evening to investigate. He took with him in his pocket a loaded .25 caliber Colt semi-automatic pistol which he habitually carried for self-protection while in certain sections of Lawrence. There was a bullet in the chamber and the safety was off. He entered Jordan's apartment and found no one home. He then went to the apartment of a neighboring tenant to await Jordan's return. Sometime later he went back to Jordan's apartment and was admitted. Then present in the apartment in addition to Jordan were one Annette Demers and one Lorenzo Rosado. Jordan presented Rosado to the defendant as the person who would take over the apartment. With the defendant standing in the doorway, a heated discussion began. The defendant refused to accept Rosado as a tenant. He next complained to Jordan about the presence of a dog in the apartment and some scratches which had been made on the door. Jordan then declared he was moving out immediately, disconnected the television set, and wrapped the cord around it. He called the defendant a vulgar name. The defendant moved from the doorway to within two feet of Jordan and said, 'I can take six like you before breakfast in the morning.' The defendant testified that at this time he saw Rosado, who was seated on a sofa approximately three feet to his right and on the other side of a coffee table, pull a knife from his pocket. The defendant extracted the gun from his pocket. He next saw Jordan who was in front of him moving toward him. The defendant then took the gun and struck Jordan on the head with it. Both men fell to the floor, and in the ensuing struggle the gun was fired, killing Jordan.

The sole question before us is whether the defendant was entitled to an instruction on self-defence with respect to the crime of involuntary manslaughter. Involuntary manslaughter is defined as 'an unlawful homicide, unintentionally caused (1) in the commission of an unlawful act, malum in se, not amounting to a felony nor likely to endanger life (Anderson, Wharton's Criminal Law and Procedure, § 289), or (2) by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct. (Cases cited.)' Commonwealth v. Campbell, 352 Mass. 387, 397, 226 N.E.2d 211, 218 (1967). The trial judge charged only as to the second aspect of the crime. The defendant's theory in desiring an instruction on self-defence is that if he reasonably believed his life was in danger he was justified in taking the gun from his pocket and striking Jordan. In that case his actions would have been in self-defence and thus reasonable. If so,...