(dissenting) The Commonwealth does not contend that Tracy was in the commission or attempted commission of a crime punishable with death or imprisonment for life. G. L. c. 265, § 1. Hence, a finding of deliberate premeditation was necessary for the conviction of murder in the first degree.
1. The interrogation of Tracy at the hospital by Lieutenant Donovan supplied the only direct evidence of the shooting of Officer G-allagher. At the time Tracy was seriously wounded and appeared to be in pain. Five bullets *100were removed.from Ms body, one each from his abdomen, right wrist and rectum and two from his left leg.
The propriety of the interrogation of Tracy at the time and under the circumstances is not at issue. I agree with the majority that it was appropriate and necessary. But a new construction by the Supreme Court of the United States, made after the trial of Tracy, has, as it appears to me, shown that the examination was inadmissible at the trial. Tracy, in the interrogation, admitted that he fired the gun when an officer who was alone came in after him. TMs was significant and of course damaging evidence on the issue of premeditation.
Escobedo v. Illinois, 378 U. S. 478, 491, as I read it, shows that admissions obtained from a prime suspect by a process of police interrogation that “lends itself to eliciting incriminating statements” may not be used at his trial if before the examination' is begun he is neither informed of his constitutional right to remain silent nor given the opportunity to consult an attorney. If in a given case the accused has full awareness of his right to be silent, the police need hot inform him of the right, and, of course, the accused may waive Ms rights. This construction finds support in holdings and opinions elsewhere. See People v. Dorado, 62 Cal. 2d 338, State v. Hall, 88 Idaho, 117, 129-131 (concurring, opinion); State v. Neely, 239 Ore. 487; State v. Dufour, R. I. , - ;1 Davis v. North Carolina, 339 F. 2d 770, 780-783 (4th Cir.) (dissenting opinion); dissenting.view of Desmond, C.J., and Fuld, J. in People v. Gunner, 15 N. Y. 2d 226, 233. But see Davis v. North Carolina, 339 F. 2d 770 (4th Cir.); People v. Hart-graves, 31 Ill. 2d 375, 379, cert, den, sub nom. Hartgraves v. Illinois, 380 U. S. 961; Bichell v. State, 235 Md. 395, 399; Bean v. State, 81 Nev. ;2 People v. Gunner, supra.
The right to remain silent and the duty of the interrogating police to advise the suspect thereof is the basis of the opinion in State v. Neely, 239 Ore. 487. For other cases showing that tMs Federal constitutional right is ap*101plicable to the State, see Malloy v. Hogan, Sheriff, 378 U. S. 1, 6, 8; Fagundes v. United States, 340 F. 2d 673, 677 (1st Cir.); Haynes v. Washington, 373 U. S. 503, 510-511; Crooker v. California, 357 U. S. 433, 438, 440. See also Commonwealth v. Beaulieu, 333 Mass. 640, 651 (right is recognized in the Uniform Code of Military Justice).
The right to the advice of counsel where the prime suspect does not know his other relevant rights and is about to be interrogated cannot depend, as I see it, upon whether the suspect happens to ask for counsel. The Escobedo opinion does not state such an arbitrary rule. “ [T]he imposition of . . . [such a] requirement . . . would discriminate against the defendant who does not know his rights.” People v. Dorado, 62 Cal. 2d 338, 351. “[I]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.” Carnley v. Cochran, Corrections Director, 369 U. S. 506, 513.
There was coercion of Escobedo. There was plainly no coercion of Tracy. But the Escobedo principle does not appear to be founded in coercion. Had that been determinative, the case, semble, would have been decided under the Fourteenth Amendment without reference to the Sixth Amendment. See, for example, Haynes v. Washington, 373 U. S. 503.
Tracy was not. informed of his constitutional rights. In his condition, such advice was especially important and no waiver should be presumed.
2. The evidence furnishes no fully satisfactory explanation of the presence of Tracy in the bank building or his conduct there. The testimony of the officers showed that the lights in the basement of the bank were on when the officers arrived. Tracy testified that he had turned on all the switches. There is no suggestion that anyone else could have done so. Gillette found that the alarm switch had been moved from its regular position at the time of closing the bank. The reasonable inference is that Tracy moved the alarm switch in the course of turning the light switches. *102There is no suggestion that any attempt was made to break in the safe or that Tracy had with him any tools of any kind.
The jury of course could draw the very reasonable inference that Tracy entered the bank to steal money, but the absence of bank robbing tools, and, initially, of a weapon, the turning of switches so that the presence of an intruder was signalled by lights and an alarm, and Tracy’s foolhardy conduct with the gun notwithstanding the presence of several officers,3 suggest the opposite of planning or of forethought and premeditation.
Tracy’s own story is in substantial part fantastic and improbable. It could of course have been found to be incredible.4 By itself it reads like a cock and bull story to escape responsibility for a shocking murder. But in the single aspect in which it is important, that is, premeditation, it must be read with the officers’ testimony and with the testimony of other witnesses. Several witnesses testified to having seen or talked with Tracy in the course of the evening and, in substance, that he looked, acted or talked 11 funny” or *1 *‘ strange ’’ or not ‘1 like himself, ’ ’ with ‘ ‘ a dead stare” and that he walked “very rigid,” “real stiff and straight.”
*103This was an important aspect of the case for the consideration of the jury in determining whether to find Tracy guilty of first degree murder. The testimony tending to show that Tracy’s murderous action was impulsive and planless, particularly the testimony of the officers, warranted reference in the charge. That such reference was not made is of course not legal error. Undoubtedly if there had been a request to refer to this testimony the judge would have done so. As the case has come to us, we are not obliged to give the matter any consideration. Commonwealth v. Bellino, 320 Mass. 635, 645-646. But we may do so in connection with the exercise of our extraordinary powers under G. L. c. 278, § 33E.5
The judge, in respect of second degree murder, noted that Tracy contended that his mind was blank and that he did nothing of which he was conscious, and charged, rightly, that if Tracy did not know what he was doing he was not guilty of murder, but if he was conscious of what he was doing he was guilty of murder in the second degree. There was no mention of the officers’ testimony. Of course, the critical alternatives in respect of first degree murder were conscious premeditated action and conscious unpremeditated action. Tracy’s own testimony was that he was aware of what was happening.
Undoubtedly an inference of deliberate premeditation was warranted. But the evidence permitted another inference. To me, in view of the reliable account of the officers of what they observed, it is a strong inference. Hence, I believe that the submission of the case to the jury without a reference thereto warrants notice on this appeal.
3. I would reverse the verdict of murder in the first degree because of the introduction in evidence of the hospital interrogation. Failing in that, and for two additional rea*104sons, I would reduce the verdict to murder in the second degree. These reasons are (1) the striking divergence in the views of courts and judges as to how the Escobedo case should be construed — a divergence that can be resolved only by a decision of the Supreme Court of the United States; and (2) the submission of the issue of first degree murder without express reference to the police testimony and the other testimony tending to show impulsive conduct.
206 Atl. 2d 82, 83-85.
398 P. 2d 251.'
The testimony of the officers was to the effect that, when Sergeant Barry shouted orders to the intruder to put the gun down and surrender, a gun was slid along the floor from the supply room to the corridor or was dropped to the corridor floor from an arm protruding from the supply room. As the officers proceeded up the corridor toward the supply room, a hand reached out from that room and retrieved the gun which was then fired at the approaching officers.
Tracy testified that, sometime earlier in the evening, a chef at a restaurant on Boylston Street, where Tracy was employed as a broiler cook, gave him what appeared to be a grape flavored soft drink. He immediately craved more; after five or six glasses his mouth and mind became numb, he felt “like . . . [he] was floating,” he felt “real strange.” He described going to two restaurants, taking a cab, going to his apartment, talking with his wife, going out for ice cream, and eventually finding himself in a building (the bank) where he roamed around and turned all the light switches. Throughout this period he felt the same way, “floating” and his “mind . . . blank.” While in the building he heard voices and became frightened. He opened the door of a locker and saw a gun belt with holster and gun and, being “real scared,” he put it on. He started to ran upstairs, but hearing loud and angry voices behind him, ran down again and into a little room, still feeling as if he were floating; he climbed to the top shelf in a cabinet, and heard gunfire and the command to throw the gun out and come out. He took hold of the gun and them got hit and fell to the floor and the gun went off several times when bullets hit his hand.
General Laws e. 278, {3 33E, as amended by St. 1962, e. 453, provides, in part: “Upon such consideration the court may, if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt . . ..”