Suffolk. 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.
Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.
Homicide. Malice. Self-Defense. Practice, Criminal, Charge to jury. Evidence, Presumptions and burden of proof.
The opinion of the court was delivered by: Wilkins
Where a murder trial was held prior to the decision of the United States Supreme Court in Mullaney v. Wilbur, 421 U.S. 684 (1975), the defendant's failure to request instructions concerning either malice or the burden of proof on the issue of self-defense, and his failure to object to the charge in those respects, did not preclude appellate review of his constitutional claims. [418-420]
An instruction to the jury at a murder trial that malice could be inferred from the intentional use of a deadly weapon did not, in the context of the entire charge, impermissibly place on the defendant the burden of proof respecting malice and justification. [420-423]
There was no merit to the defendant's contention that the testimony of a witness at a murder trial was inherently incredible and that because that testimony related to malice and contradicted the defendant's explanation of events, he was denied a fair trial. 
A defendant convicted of murder in the second degree was not denied due process of law by the fact that this court, in its opinion affirming his conviction, misstated certain facts. 
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 relief in the United States District Court for the District of Massachusetts, where his principal contention was that he was denied due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution because the trial Judge failed to require the Commonwealth 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 , but he did not reach the merits because he concluded that Gagne had not exhausted his State remedies. 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. Rodriguez, 370 Mass. 684 (1976), 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 reasonable doubt that the defendant did not act in self-defense. Id. at 688-689.
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 687-688, 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 doubt that the defendant did not act in self-defense" (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-defense." Id. at 691. 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 691-692. 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 692 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, 374 Mass. 583 (1978). 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 effect to Mullaney v. Wilbur), our decision in Commonwealth v. Rodriguez, supra, and our decisions in Commonwealth v. Johnson, 372 Mass. 185, 192 (1977), and Commonwealth v. Greene, 372 Mass. 517, 519 (1977) (Commonwealth 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 request 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. *fn1 We proceed, as ...