Opinion by
The defendant was indicted and tried for assault and battery and for aggravated assault and battery; he was convicted of assault and battery. His motions , in arrest of judgment and for a new trial as well as all his other motions were refused, and he was sentenced to imprisonment for one year.' We allowed an appeal from the Order of the Superior Court * affirming the judgment of sentence of the Court of Quarter Sessions.
Prior to the present сase, the Commonwealth had indicted defendant on two bills, one charging murder, and the. other charging involuntary manslaughter. The Commonwealth in the trial of those indictments offered evidence to prove that defendant had brutally kicked and beaten. Hubert Madden on March 26, 1919, and that his death resulted from .striking his head as he fell, and that this fall resulted from defendant’s brutal attack.. Defendant testified that he was.too intoxicated to remember .what happened, and his. doctors testified it was'impossible'to state the'cause' of death. Defendant was-acquitted on- each- bill- of indictment.- It is *573 obviously impossible to know on what ground the jury based its acquittal — it might have been a failure on the part of the Commonwealth to prove beyond a reasonable doubt that death resulted from the beating.
The Commonwealth then re-arrested the defendant and indicted him on the present bills charging assault and battery and aggravated assault and battery on Hubert Madden. The Commonwealth admits that the same person was assaulted and that the time, place and occasion, and the acts of violence were identical with those involved and proved by the Commonwealth upon the trial of the aforesaid indictments for murder and involuntary manslau ght er.
The defendant pleaded autrefois acquit. The Court sustained the Commonwealth’s dеmurrer to the plea. Defendant thereafter was tried on both bills; he was acquitted of aggravated assault and battery and found guilty of assault and battery.
The Act of March 31, 1860, P. L. 427, Sec. 30, 19 P.S. 464, provides: “In any plea of autrefois acquit or autrefois convict, it shall be sufficient for any defendant to state, that he has been lawfully convicted, or acquitted, as the case may be, of the offense charged in the indictment.”
The first question that arises is: Cоuld defendant in the trial of the murder indictment have been lawfully convicted (or acquitted) of assault and battery and aggravated assault and battery? The parties agree that this question has never been squarely decided in Pennsylvania. We shall therefore review the cases which may throw light upon the question and the principles which may be applicable.
This Court has decided that on an indictment charging murder a defendant can be аcquitted of murder and convicted of voluntary manslaughter¿
but he can
*574
not be convicted of involuntary manslaughter: Hilands v. Com.,
In
Commonwealth v. Kellyon,
In
Commonwealth v.
Mayberry,
In
Commonwealth v. Palermo,
*576
■ The opinion of Mr. Justice Simpson in
Commonwealth v. Greevy,
“This, comparison also shows clearly the fallacy of defendant’s argument that there was somé faet established in his favor-at the1 murder trial which was essential to his conviction of involuntary manslaughter. Every one admits that res adjudi'cata conclusively determines not only the ultimate fact established by a verdict and judgment, but every other fact necessarily found in reaching the conclusion as to that ultimate fact; but this does not mean, as defendant asserts, that every defense he interposes is established, for hé cannot point to any one of those defenses, and-say it was upheld by the jury. Nor does it follow that because the evidence is the same in the' two cаses, — even if we •assume there was not the slightest difference, — that the defeating of one action concludes also'the other. -. . .”
The common law rule did not permit a verdict of guilty of a constituent offense amounting' to a mis
*577
demeanor on an indictment for a felony: 1 Chitty’s Criminal Law 25, 456, 639;
Commonwealth v. Gable,
7 S. & R. 423;
Com. v. Adams, 2
Pa. Superior Ct. 46;
Com. v. Komatowski,
With respеct to assault and battery, it is an indisputable fact that an assault and battery and an aggravated assault and battery almost always occur in a case of murder or voluntary manslaughter — notable exceptions are look-outs in murder cases. At first blush, therefore, such assaults and batteries would be almost always not only lesser offenses but also necessarily constituent offenses of and includible within indictments for murder and voluntary manslaughter. Hоwever, these are technical criminal offenses which have acquired a technical legal meaning, and therefore they must be construed according to their technical meaning. It is undoubtedly true that they have never heretofore been considered a constituent offense of, or includible in an indictment for murder or voluntary manslaughter; and while this is far from controlling, if is entitled to some weight.
Mr. Chief Justice Maxey in
Commonwealth v. Komatowski,
To summarize: We hold that there can be no conviction (or aсquittal) of assault and battery or of aggravated assault and battery on an indictment and trial for murder or for murder and voluntary manslaughter. This conclusion or rule is supported not only by the aforesaid common law rule which prohibits the joinder or conviction of a misdemeanor in an indictment for murder or voluntary manslaughter, as Avell as by prior opinions of this Court, but also in our judgment by reasons which are sound, practical and Avise. If there could be a conviction of assault and battery on a murder bill the trial Judge would always have to charge the jury on first degree murder, second degree murder, voluntary manslaughter, and, certainly if requested, on aggravated assault and .battery and simple assault and battery. This has never been done in the history of the. Commonwealth. When we take into consideration the additional points the trial Judge must define in a murder case, such as presumption of innocencе, reasonable doubt, and usually several others (depending upon the particular facts of that particular case) the jury Avould likely become sd befogged by legal' technicalities and so confused by the mazé of the law as to make a clear comprehension, weighing, and' correlation 'of the facts exceedingly difficult, and the rendition of a just, verdict both ...difficult-and doubtful.. Furthermore,: the likelihood-of á “murderer’-’ escaping his just *579 punishment and being found guilty of aggravated assault and battery or simple assault and battery instead of one of the degrees of murder or manslaughter of which he was actually guilty would be greatly increased to the detriment of society. Although some other states have reached a different conclusion, and although dicta may be found in some appellate court decisions in this State which create some doubt or confusion on thе points we have hereinabove discussed, we are convinced that in the best interest and protection of the public the aforesaid common law rule and the long established practice in this Commonwealth should not be departed from or abrogated in cases of felonious homicide. For each and all of these reasons the Commonwealth’s demurrer to the plea of autrefois acquit on the murder indictment wаs properly sustained.
A second important and difficult question remains which probably has never received the careful analysis it deserves by district attorneys or by Courts: Could defendant have been convicted of aggravated assault and battery or of simple assault and battery or both on a bill charging him with involuntary manslaughter? The answer to the aggravated assault and battery and except in rare cases to the assault and battery is “no”. Is the present case one of the rare exceptions? Involuntary manslaughter, aggravated assault and battery, and simple assault and battery are criminal offenses which, as we have noted, have acquired a technical meaning and therefore the legal questions here involved must be considered and decided on the basis of the legal meaning of the crimes charged and the applicable principles оf law. One thing, at least, is clear at the outset — neither the common law rule which prohibits the conviction of a misdemeanor on a felony bill, nor the practical reasons applicable in the trial of a murder in *580 dietment are applicable to a determination of this second question.
Involuntary manslaughter is a misdemeanor. On a bill of indictment for a misdemeanor, a verdict of guilty of a lesser offense which is undoubtedly a cоnstituent part of the misdemeanor charged has often been permitted. Moreover, the legislature and the Courts have in certain cases relaxed the common law rule hereinabove discussed and permitted the conviction on a felony bill — except in a murder or murder and manslaughter bill — “. . . of a misdemeanor which is a constituent of, . . . [and necessarily] included within, the greater offense: 23 R. C. L. 1162; State v. Crowell,
Is aggravated assault and battery or simple assault, and battery a constituent of and necessarily included Within the greater offense of involuntary manslaughter?
Section 703 of the Act of June 24, 1939, known as “The Penal Code”, P. L. 872, provides: “Whoever is *581 convicted of involuntary manslaughter, happening in consequence of an unlawful act * or the doing of a lawful act in an unlawful way, is guilty of a misdemeanor, and shall be sentenced to pay a fine not exceeding two thousand dollars ($2000), or to undergo imprisonment not exceeding (3) three years, or both.”
Section 708 of “The Pеnal Code” covering assault and battery does not define the offense but provides for a fine not exceeding $1000. or an imprisonment not exceeding two years, or both.
Section 709 of “The Penal Code” defines the offense of aggravated assault and battery and provides: “Whoever unlawfully and maliciously inflicts upon another person, either with or without any weapon or instrument, any grievous bodily harm, or unlawfully cuts, stabs or wounds any other person, is guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to pay a fine not exceeding two thousand dollars ($2000) or undergo imprisonment . . . not exceeding three years, or both.”
In
Com. v.
Aurick,
*582
To convict of assault and battery the Commonwealth must prove that the defendant had a criminal
intent
— the
assault and battery must have been intentional,
not accidental or merely negligent.
*
To convict of aggravated assault and battery the Commonwealth must prove not only an intentional assault and battery but also malice and that the battery resulted in grievous bodily harm:
Com. v. Ireland,
Involuntary manslaughter occurs in the vast majority of cases from an unintentional killing whiсh results from doing a lawful act negligently, i.e., an act lawful in itself but done in a negligent or unlawful manner. It will be apparent at once that in such cases a specific intent to commit an assault and battery is not a necessary or constituent part of the crime charged. Therefore, an acquittal of involuntary manslaughter is not in such cases an acquittal of simple assault and battery. Furthermore, aggravated assault and battery which requires both intent and maliсe, is never a necessary or constituent ingredient of or a lesser offense contained within involuntary manslaughter, and therefore an acquittal of involuntary manslaughter is not an acquittal of aggravated assault and battery. It follows that in such cases neither a plea of autrefois acquit nor a motion in arrest of judgment would be good.
However, involuntary manslaughter may sometimes occur where an unintentional killing results from doing an unlаwful act — i.e., an act unlawful in itself such as an intentional battery — not amounting to a felony or naturally tending to cause death or great bodily
*583
harm:
Com. v.
Russin,
Because the cases falling within this kind or class of unintentional killing are rare, it is sometimes stated as a rule of universal application that the gist of the offense of involuntary manslaughter is an unintentional injury and that the degree of proof necessary for a conviction in a prosecution fоr assault and battery is different from and greater than that necessary for a conviction of involuntary manslaughter: Com. v. Ireland, 149 Pa. Superior Ct., supra. While this is an accurate statement of the law when applied to most cases of involuntary manslaughter, it is not applicable or correct in the relatively few cases where death results from an intentional assault and battery which is inflicted without malice and without an intention to inflict great bodily hаrm or death: Com. v. Russin, 171 Pa. Superior Ct., supra. Cf. Com. v. Mayberry, 290 Pa., supra; Com. v. McLaughlin, 293 Pa., supra; Com. v. Aurick, 342 Pa., supra.
In Com. v. Russin, 171 Pa. Superior Ct., supra, a conviction of involuntary manslaughter was sustained upon exactly the same facts as are here present. The Commonwealth proved that the defendant was engaged in a brutal fist fight with the deceased and that the deceased died as a result of injuries inflicted in the fight. Defendant contended that death resulted from another cause (pneumonia) and that in any event the evidence did not сonstitute or prove involuntary manslaughter. We approve the decision of the Superior Court in that case.
Defendant, as we have seen, was acquitted of involuntary manslaughter, but it is impossible to tell from the record whether he was acquitted because the Commonwealth failed to convince the jury beyond a rea *584 sonable doubt that defendant had committed an intentional and unlawful assault and battery, or because it failed to convince the jury that death resulted from defendant’s unlawful assault. Under such circumstances á plea of autrefois acquit would ordinarily not have been good.
In “Commonwealth ex rel. Moszczynski v. Ashe,
Moreover, it is well established “that where a former acquittal is pleaded in bar to an indictment, and the plea is demurred to by the Commonwealth, ‘the question whether the former acquittal was for the same offense depends on the record pleaded and not on the arguments or inferences deduced therefrom’: Com. v. Shoener,
In the present case, however, it is important tо note that the Commonwealth admits that its evidence at the trial on the bill charging involuntary manslaughter would have been sufficient, if believed, to have convicted defendant of assault and battery which" was, in that particular case, a necessary ingredient of the greater offense of involuntary manslaughter.
In
Commonwealth v. Forney,
In Hilands v. Commonwealth, 114 Pa., supra, the Court said (p. 380): “It is very evident the plaintiff can never be tried again upon any charge of which he might have been convicted upon the first indictment. . . But the protection extends no furthеr than the offence charged in the first indictment, or of which he might have been convicted, under it. He was not in jeopardy for any other offence.”
Applying these principles and tests to the instant case, the Commonwealth admits (1) that it based its indictment and trial of defendant in the involuntary manslaughter bill upon an intentional assault and battery by defendant upon Madden; and that it has based and tried the present indictments upon the same acts of violence by defendant against Madden as were relied upon in the bill charging defendant with involuntary manslаughter of Madden. It therefore clearly appears from the record that the assault and battery was both factually and legally a necessarily constituent part of the offense of involuntary manslaughter for which defendant was indicted and acquitted, and on which he could ha.ve been convicted of assault and battery: Com. v. Russin, 171 Pa. Superior Ct., supra.
*586 In tlxe trial of the indictment for involuntary manslaughter the Court did not charge the jury that it could find defendant guilty of assault and battery, nor was such charge requested by the defendant or by the Commonwealth. Moreovеr, it is a well known fact that an experienced trial Judge rarely, if ever, charges on or discusses the offense of assault and battery in a trial on an involuntary manslaughter bill. Obviously, therefore, the jury as a practical matter, did not, at the trial of Comber for involuntary manslaughter, pass upon or acquit Comber of the offense of assault and battery, although that might be the legal effect of its verdict of acquittal of the charge of involuntаry manslaughter.
We are nevertheless impelled to hold that since defendant in the involuntary manslaughter trial could have been, as appears from the record in this case, convicted of assault and battery, a verdict of not guilty of involuntary manslaughter was likewise in law an acquittal of the necessarily constituent lesser offense of assault and battery. The plea of autrefois acquit and the motion for arrest of judgment should hаve been sustained.
The order of the Superior Court affirming the judgment of sentence of the Court of Quarter Sessions of Philadelphia County at No. 120 December Sessions 1919, is reversed; the sentence imposed by the Court below is set aside and vacated; and the defendant is herewith discharged.
Notes
Italics, throughout, ours.
Accord:
Hilands v. Commonwealth,
Italics throughout (we repeat), ours.
The intent to commit the assault and battery may be actual and specific or the intent may be implied from circumstances such as willful driving at a high rate of speed or in a manner which manifested a reckless, culpable disregard for the safety of others. As to negligence, see Com. v. Aurick, 342 Pa., supra.