Worcester. Indictments found and returned in the Superior Court on November 13, 1976. The cases were tried before Dimond, J.
Hennessey, C.j., Quirico, Braucher, Wilkins, & Abrams, JJ.
Insanity. Homicide. Practice, Criminal, Exceptions: failure to save exception; Capital case; Charge to jury. Evidence, Photograph, Of sanity.
The opinion of the court was delivered by: Wilkins
At the trial of indictments for the murders in the first degree of a husband and wife, black and white photographs of the victims were properly admitted in evidence. 
At a murder trial in which insanity was a defense, a ruling striking the answer of a qualified psychiatrist for the defendant as to the witness's understanding of the decision in Commonwealth v. McHoul, 352 Mass. 544 (1967), was correct, and was not prejudicial, where the answer was not responsive in all aspects and the witness was given a chance "to restate" his answer. 
At a murder trial, where a psychiatrist for the defendant testified that in his opinion the defendant had not had a mental disease or defect on the night of the killings, the Judge properly sustained an objection to a further question concerning the defendant's ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. [240-241]
In a criminal case, the opinion of an expert for the defendant as to his mental condition at the time of the crime must be stated only in accordance with the standard of the McHoul case; however, the expert may testify as to his diagnosis even if in his opinion the defendant was not suffering from a "mental disease or defect." [242-244]
An argument on appeal from convictions in criminal cases that the trial Judge should have charged the jury pursuant to an "insanity defense" was lacking in merit where the defendant did not request an instruction on the question of his sanity or object to the Judge's charge. [244-247]
Upon an assessment pursuant to G. L. c. 278, § 33E, of the entire record of convictions of the defendant of murder in the first degree of a husband and wife, and the imposition of consecutive life sentences, this court concluded that substantial Justice did not require a new trial at which the defendant's criminal responsibility would be submitted to the jury where it appeared that, although the evidence was sufficient to raise a question of the defendant's responsibility, he not only did not request an instruction thereon but avoided the point and claimed someone else committed the crimes, and that the only expert testimony was from the defendant's psychiatrist and indicated that the defendant was not suffering from a mental disease or defect at the time of the killings. [247-248]
We affirm the defendant's convictions of murder in the first degree of Frank C. Dickinson and Bertha L. Dickinson. The victims, husband and wife and each over eighty years old, were brutally murdered on the night of September 8, 1975, in their home in Auburn. The defendant was sentenced to consecutive life sentences.
The defendant argues that the Judge should have excluded from evidence black and white photographs of the victims. The photographs were relevant to the question of extreme atrocity and cruelty, and their admission was within the Judge's discretion. Commonwealth v. Bys, 370 Mass. 350, 358-361 (1976). He gave cautionary instructions to the jury concerning the photographs on more than one occasion. There were no extraordinary circumstances making the admission of the photographs improper. See Commonwealth v. Richmond, 371 Mass. 563, 564-565 (1976).
The only other exceptions argued by the defendant relate to the exclusion of testimony he offered from a psychiatrist in support of a claim of insanity. As will be seen, the Judge's rulings were correct. The defendant makes further arguments as to which no exceptions were claimed. We consider all the defendant's arguments in the context of our obligation under G. L. c. 278, § 33E, to review the whole case to determine whether Justice requires a new trial or a reduction in the verdicts. Our consideration of arguments not based on exceptions is restricted, however, to a determination whether there was a miscarriage of Justice. See Commonwealth v. Williams, 364 Mass. 145, 150-151 (1973).
The defendant offered the testimony of a qualified psychiatrist, Dr. Malcolm R. Sills. Dr. Sills saw the defendant on three occasions for a total of approximately six hours and prepared a report. He concluded that the defendant's thinking was "concrete and dull," that he was unable to think in terms of abstractions, that his affect tended to be overcontrolled, and that he had no attachment to members of his family and had no real friends. Dr. Sills concluded that the defendant "was not retarded but that he was either dull normal or borderline" between dull normal and retarded. He described what the defendant told him about his past, the incidents of September 8, 1975, and two occasions where the defendant was "amnesic." Dr. Sills gave his general impressions of the defendant. He indicated his awareness of the opinion of this court in Commonwealth v. McHoul, 352 Mass. 544 (1967). He was asked his understanding of the McHoul decision and responded as set forth in the margin. *fn1 The answer was struck on motion of the Commonwealth. The Judge said, "e will give ...