The defendants were found guilty of murder in the second degree of one Leonard Vincent Castronova, and additionally the defendant Maurice Williams was found guilty of unlawfully carrying a firearm. Both defendants received life sentences, and Williams received a concurrent sentence for a term of years on the gun charge. The case taken under G.L.c. 278, §§ 33A-33G, is before us with the transcript of evidence, exhibits, and the defendants' assignments of error.
1. Error is alleged in admission of the testimony of Silverio (who was missing at the time of trial) which was taken stenographically at a previous trial of the indictments which ended in a jury disagreement. The defendants allege that the Commonwealth had not proved the necessity of it or shown a diligent effort to find the missing witness. A thorough discussion of the problem presented by this assignment is contained in Commonwealth v. Gallo, 275 Mass. 320. Barber v. Page, 390 U.S. 719. California v. Green, 399 U.S. 149. Initially it may be said that the testimony of Silverio was crucial. Apart from the defendants, he was the only other surviving witness to the shooting. His memory of the events was of extreme importance in assessing possible guilt. There thus existed a necessity for his presence in so far as the Commonwealth was concerned. Silverio's testimony had been given at the first complete trial of the charges against these defendants, and at that trial each defendant had a full opportunity to cross-examine him. See Commonwealth v. Mustone, 353 Mass. 490, 492. Silverio's testimony was available in accurate and complete form and was read to the jury. We hold that the principles which apply in the case of a witness made unavailable by death or insanity likewise apply in this instance.
Furthermore, there is no question but that the Commonwealth had mounted a diligent search. Silverio, a known drug addict, was a familiar person to several police departments, all of which joined in looking for him. His wife, mother, aunt and grandparents were checked. Police in Quincy, Hyde Park, West Roxbury
2. One Jones gave evidence that on May 25, or 26, 1970, four or five days after the homicide, Williams approached him to borrow $20, and that he lent Williams that sum, receiving as security a long-barrel black gun with a white handle which had "22" caliber imprinted on it. The defendant Williams objects to this testimony as to the caliber of the gun on the ground that it was hearsay since the out-of-court imprint on the gun is an assertion offered for its truth. We see no error in admitting the evidence. Labels and brand names have been held admissible to prove, e.g., the resident port of a ship. (Stearns v. Doe, 12 Gray 482); the source of beer in a barrel (Commonwealth v. Collier, 134 Mass. 203); the contents of a box (Kennedy v. State, 182 Ala. 10, 17-18); and the contents of a package (State v. Lizotte, 230 Atl.2d 414, 417 [Maine]; State v. Rines, 269 Atl.2d 9, 13-14 [Maine]). A label indicating the size of a gun is no less competent evidence.
3. Both defendants complain of the refusal of the judge to charge the jury on involuntary manslaughter. "Involuntary manslaughter is 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 ... or (2) by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct." Commonwealth v. Campbell, 352 Mass. 387, 397. See Commonwealth v. Welansky, 316 Mass. 383, 399, and Commonwealth v. McCauley, 355 Mass. 554, 560. The evidence in this case permitted a finding that the deceased was killed by a shot fired by the defendant
4. Complaint is made by both defendants that they were not permitted to make an unsworn statement to the jury, a decision which was announced to them after arguments and before the charge to the jury. The defendants themselves did not take the stand during the course of the trial. For reasons fully covered in Commonwealth v. O'Brien, 360 Mass. 42, 48-50, we conclude that there was no error in the ruling of the judge. We reiterate that permitting such a statement is not now required whether or not a defendant chooses to testify.
5. Motions for directed verdicts for the defendants were denied, and each took exception. In the case of Williams, the evidence tended to establish that he was seen, after leaving the automobile, on the street next to it with a gun in his hand, and that Castronova was shortly thereafter struck by a bullet which cost him his life and which came from the area where Williams stood. It was open to the jury to find on the evidence that the defendant Williams shot Castronova intentionally and with malice aforethought. Commonwealth v. Boyer, 355 Mass. 762.
We are of a different view in the case against Clark. The identification testimony on Clark was dubious at best. In addition, there was testimony from two impartial witnesses that the description of Clark given by Silverio to the police, with particular reference to his
6. Clark assigns as error the trial court's denial of his motion to direct the Commonwealth to provide him with criminal records and probation records of its witnesses. However, as Clark concedes, this motion was not simply a mode of discovery of the contents of prosecution files but rather a request to the prosecution
Consonant with our power and duty under G.L.c. 278, § 33E, we have reviewed the transcript and we find no reason to disturb the conviction of the defendant Williams on the several indictments brought against him. In view of our stated conclusion relative to the defendant Clark, it follows that judgment against him must be reversed.
Judgment against the defendant Clark reversed.
Verdict against the defendant Clark set aside.
Judgments against the defendant Williams affirmed.