Opinion
September 5, 1975.
P.J. Piscitelli ( Robert E. Klein with him) for the defendant.
Helen Murphy Doona, Assistant District Attorney, for the Commonwealth.
The defendant died following the argument of this appeal under G.L.c. 278, §§ 33A-33G. Earlier convictions arising out of the same events were considered in Commonwealth v. Eisen, 358 Mass. 740 (1971), and Eisen v. Picard, 452 F.2d 860 (1st Cir. 1971), cert. den. 406 U.S. 950 (1972). Thereafter the defendant was retried, and he has brought this appeal from a conviction of murder in the second degree. When a criminal defendant dies pending his appeal, normally the judgment should be vacated and the indictment dismissed. This is the general practice elsewhere. Durham v. United States, 401 U.S. 481 (1971). State v. Carter, 299 A.2d 891 (Maine 1973). State v. Marzilli, 111 R.I. 392 (1973). The asserted general importance of certain issues and counsel's able presentation of his client's appeal do not justify a different result. Any personal interest in vindication which a member of the defendant's family may have is not sufficiently substantial to warrant our deciding the appeal. Cf. St. Pierre v. United States, 319 U.S. 41 (1943); Wetzel v. Ohio, 371 U.S. 62, 65 (1962) (Douglas, J., concurring). Although given an opportunity to do so, neither the Commonwealth nor the defendant's counsel has advanced any other reason why a decision on this appeal should be made. The matter of counsel fees will be decided by a single justice of this court.
Judgment on indictment No. 41052 vacated; the case is remanded to the Superior Court where that indictment shall be dismissed.