Suffolk. Indictment found and returned in the Superior Court on August 15, 1975. The case was tried before Lynch, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.
Hennessey, C.j., Quirico, Braucher, Kaplan, & Wilkins, JJ.
Homicide. Self-Defense. Practice, Criminal, Capital case, Charge to jury, Exceptions: failure to save exception.
The opinion of the court was delivered by: Kaplan
Evidence at a murder trial warranted a finding that the defendant was guilty of murder in the second degree. [765-767]
Where it appeared at the trial of a defendant charged with murder in the first degree that the defense counsel affirmatively assented to the Judge's omission of an instruction on manslaughter, this court declined to exercise its powers under G. L. c. 278, § 33E, to reduce the verdict of conviction of murder in the second degree or to order a new trial. [767-768]
At a murder trial in which the defendant raised the issue of self-defense, the charge to the jury, taken in its entirety, fairly put the burden on the Commonwealth to negate the issue of self-defense. 
On indictments for murder in the first degree on his companion Yvonne and their two-year-old son Marcus, the defendant Compton Bowman was convicted of murder in the second degree of Yvonne and acquitted of the murder of Marcus. The defendant argues on his appeal from the conviction that on all the evidence this court ought to use its dispensing power under G. L. c. 278, § 33E, to order entry of a manslaughter verdict (or possibly order a new trial). Section 33E is also invoked in respect to the omission of the trial Judge to instruct on manslaughter, and an alleged error by him in his instructions on self-defense. We conclude that this is not a proper occasion for granting any extraordinary § 33E relief from the jury's verdict, which is amply supported.
About 6:15 A.M., Friday, May 23, 1975, the defendant appeared at Faulkner hospital, Jamaica Plain, exhibiting a bullet wound at his left wrist and forearm, but otherwise unbruised. During the short period of his admission and treatment (the wound was minor), the defendant made statements to a medical technician, a nurse, and three police officers, which taken together told the following story in substance. *fn1
Earlier that morning he had quarrelled with his girl friend because she had informed against him to the immigration authorities and tried to get him deported. He had shot her and their son. In speaking to the medical technician (to whom he evidently was more forthcoming than to the others), the defendant said he shot the child because he didn't want to abandon him to the care of strangers; to an officer he said he thought the child got in the way of the shooting. He said he was shot; he did not know how he came to be struck during the episode. He had bought the gun at some earlier date from a man at Massachusetts Avenue and Tremont Street, Boston.
He said further at the hospital that he had gone to New York in connection with his immigration problem; making no progress there, he returned to Boston on the afternoon of Thursday, May 22. That evening he visited an immigration lawyer in Boston whom he had chosen from the yellow pages of the telephone book. He came home about 9 P.M. and slept there. In the early morning, as he was about to enter his car, he realized he had left his keys in the house. The trouble started when he reentered the house. After the shooting he drove off seeking a police station. He found a post office, and after speaking to a woman there, proceeded to Faulkner hospital.
In consequence of the defendant's statements, and while he was still being treated at the hospital, a police car was dispatched to the defendant's house at 364 Blue Ledge Drive, Roslindale. On the floor of the second-floor bathroom were found the bodies of Yvonne and Marcus, both dead. The place was disordered, with Yvonne's hair curlers and slippers strewn about, which might suggest a struggle. A .22 caliber revolver with a six-chambered cylinder rested open on the toilet seat. It can be taken that all chambers had been discharged in the encounter in the bathroom and that the several wounds inflicted on the victims were traceable to bullets fired from that gun. Yvonne had been wounded frontally in the chest, the bullet penetrating her heart; a second wound was caused by a bullet entering the back of her head; and a third resulted from a bullet entering the right side of her neck just above her collar bone. The first and second wounds were grievous enough to cause death. Marcus was killed by a bullet in the head. It could not be determined at what distance from the bodies the gun was fired. The spent bullet extracted from the defendant's forearm came from the same gun. When arrested at the hospital, the defendant had in his pocket seven live .25 caliber bullets and one live .22 caliber bullet; another live .22 caliber bullet was discovered at the autopsy loose in Yvonne's clothes.
What has been recounted sketches the prosecution's case in chief on the murder indictments, and on this and the rest of the evidence (developed below) the Commonwealth contended that the defendant intentionally killed Yvonne with a connected killing of the child, *fn2 suffering an injury as Yvonne fought back. The defense postulated that Yvonne had been the aggressor (using a revolver not known to the defendant), and that all the shots were fired by Yvonne, the defendant having acted throughout in self-defense without excessive force to ward off her attack, thereby incurring his injury.
Taking the stand in his own behalf, the defendant denied that he had made various statements attributed to him by the police officers who had seen him at the hospital; he had told them merely, so he testified, that Yvonne ...