COMMONWEALTH of Pennsylvania v. Bennie GARCIA, Appellant.
Supreme Court of Pennsylvania.
Decided Oct. 7, 1977.
378 A.2d 1199
Argued Nov. 15, 1976.
NIX, Justice, dissenting.
I dissent for the reasons set forth in my dissent in Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (filed Oct. 7, 1977).
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, John M. Tighe, Asst. Dist. Attys., Pittsburgh, for appellee.
Before JONES, C. J., and EAGEN, O‘BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION
ROBERTS, Justice.
Appellant Bennie Garcia was arrested on March 1, 1974, and charged with murder and voluntary manslaughter. At trial, appellant requested a jury instruction on involuntary manslaughter. The court refused his request because (1) appellant had not been indicted for involuntary manslaughter, and (2) in the court‘s view the evidence of involuntary manslaughter was “at best meager and feeble.” The jury returned a verdict of guilty of voluntary manslaughter and the court, after denying post-trial motions, imposed a sentence of five to ten years imprisonment. In this appeal,1 appellant contends that the court erred in refusing his
I
At approximately 8:30 p.m., February 2, 1974, appellant, his brother, and three friends visited a tavern several miles from appellant‘s home. They had never been to the tavern before and did not know any of the patrons. Appellant was carrying a pistol tucked under his belt when he entered the tavern.
At approximately 1:00 a.m., a fight broke out in the men‘s room between appellant‘s brother and several other patrons of the tavern. Appellant rushed towards the men‘s room. As he entered the doorway to the men‘s room, appellant was pushed back by the victim.
There is conflicting testimony concerning what happened next. The Commonwealth‘s witnesses testified that appellant drew his pistol and shot the victim while they were a few feet apart. Appellant testified that he went back into the men‘s room to look for his brother, and the victim grabbed him by the hair and yanked his head down. Appellant claimed that he was hit several times as he struggled to get free, and that the pistol fell out from under his belt. He testified that, while the victim still held him, he picked up the pistol and it accidentally discharged. Appellant stated that he did not intend to fire the pistol.
II
The general rule in Pennsylvania is that on an indictment charging a particular offense the defendant may be convicted of a lesser offense which is included within the crime charged. Commonwealth v. Soudani, 398 Pa. 546, 547 n.1, 159 A.2d 687, 688 n.1 (per curiam), cert. denied, 364 U.S. 886, 81 S.Ct. 177, 5 L.Ed.2d 107 (1960);
In Gable, the defendant was indicted for murder, but the jury returned a verdict of “not guilty of murder but guilty
“[O]ne who is indicted for murder, cannot be convicted of involuntary manslaughter, because it is well settled, that there cannot be a conviction of a misdemeanor, on an indictment for felony. Therefore, when on an indictment for murder, the jury find that the defendant is guilty of manslaughter, it must be understood, such manslaughter as is felonious, which can be no other than voluntary manslaughter.”
7 Serg. & R. at 424; accord, Walters v. Commonwealth, 44 Pa. 135 (1863).
The rationale of Gable was rejected in Hunter v. Commonwealth, 79 Pa. 503 (1875). In Hunter, the defendant was indicted for assault with intent to kill, a felony, but the jury found him guilty of assault, a misdemeanor. The defendant argued that he could not be convicted of a misdemeanor on a felony indictment. The Court rejected this contention, reasoning that the common law rule relied on in Gable was based upon the different procedures employed at common law in felony and misdemeanor trials. Since the difference had long since disappeared in Pennsylvania, the Court observed that “[i]t is clear that the reason of the rule has no application in this state.” 79 Pa. at 505. The Court held “that the old common-law rule, that upon an indictment for a felony there can be no conviction for a misdemeanor, no longer exists in Pennsylvania.” 79 Pa. at 509.
The Court inexplicably reverted to the doctrine that involuntary manslaughter was not a permissible verdict on a murder indictment, without rejecting or distinguishing Hunter, in Hilands v. Commonwealth, 114 Pa. 372, 6 A. 267
“It is very evident [appellant] can never be tried again upon any charge of which he might have been convicted upon the first indictment.
“But the protection extends no further than the offence charged in the first indictment, or of which might have been convicted under it. He was not in jeopardy for any other offence. The first indictment charged murder. Under it he might have been convicted of murder of the first or second degree, or of voluntary manslaughter, but not of involuntary manslaughter. The latter offence is a misdemeanor; it must be charged as such, and cannot be included in an indictment charging felonious homicide . . . It follows that when [appellant] was put upon this trial for murder, he was placed in no jeopardy of a conviction for involuntary manslaughter.”
114 Pa. at 380-81, 6 A. at 268.
Since Hilands, this Court has regularly held that involuntary manslaughter is not a permissible verdict on a murder indictment. See Commonwealth v. Jackson, 450 Pa. 417, 419 n.2, 299 A.2d 209, 210 n.2 (1973); Commonwealth v. Hoffman, 439 Pa. 348, 357, 266 A.2d 726, 731 (1970); Commonwealth v. Reid, 432 Pa. 319, 322, 247 A.2d 783, 785 (1968); Commonwealth v. Edwards, 431 Pa. 44, 52, 244 A.2d 683, 687 (1968); Commonwealth v. Soudani, 398 Pa. 546, 547 n.1, 159 A.2d 687, 688 n.1 (dictum), cert. denied, 364 U.S. 886, 81 S.Ct. 177, 5 L.Ed.2d 107 (1960); Commonwealth v. Comber, 374 Pa. 570, 573-74, 97 A.2d 343, 344 (1953) (dictum); Commonwealth v. Palermo, 368 Pa. 28, 31-32, 81 A.2d 540, 541-542 (1951);
The doctrine that involuntary manslaughter is not a permissible verdict on a murder indictment has been weakened by the adoption of
The continuing validity of the doctrine that involuntary manslaughter is not a permissible verdict on a murder indictment is also brought into question by our decision in Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975).
Moore‘s trial was not governed by the new Crimes Code,
Accordingly, the determination whether jury instructions on involuntary manslaughter should be given in a murder trial must be based on the classification made by the Crimes Code, and upon an examination of whether involuntary manslaughter is a lesser included offense of murder.
III
Although a defendant generally may be convicted of an offense which is less than, but included within, the offense charged, there is no Pennsylvania statute, rule, or case which adequately sets forth the standards for determining what is a lesser included offense. In determining whether involuntary manslaughter is a lesser included offense of murder, we are guided by Section 1.07(4) of the American Law Institute‘s Model Penal Code. This section provides:
“A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:
(a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) it consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or
(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the
same person, property or public interest or a lesser kind of culpability suffices to establish its commission.”5
Applying this standard, we determine that involuntary manslaughter is a lesser included offense of murder.
Under the Crimes Code, murder, voluntary manslaughter, and involuntary manslaughter are all classifications of the crime of criminal homicide.
“Criminal Homicide
(a) Offense defined. A person is guilty of criminal homicide if he intentionally,6 knowingly,7 recklessly8 or
negligently9 causes the death of another human being. (b) Classification. — Criminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter.”
The essential element necessary to sustain a murder conviction, which distinguishes murder from involuntary manslaughter,10 is the state of mind of malice. See Commonwealth v. Thompson, 466 Pa. 15, 351 A.2d 280 (1976); Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1975).11
Malice may also be found if, in killing another, the defendant “consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm . . .” Commonwealth v. Taylor, 461 Pa. 557, 565-66, 337 A.2d 545, 549 (1975) (opinion of this writer, joined by Jones, C. J., and Eagen and Manderino, JJ.); accord Commonwealth v. Boyd, 461 Pa. 17, 22-23, 334 A.2d 610, 613 (1975).13 The recklessness or criminal negligence necessary to support an involuntary manslaughter conviction may be found if the defendant consciously disregards or, in gross deviation from a standard of reasonable care, fails to perceive a substantial and unjustifiable risk that his action might cause death or serious bodily injury.
We are convinced, therefore, that the state of mind which suffices to establish the commission of involuntary manslaughter constitutes a lesser kind of culpability than the malice which is an essential element of murder.14 We conclude that involuntary manslaughter is a lesser included offense of murder.
IV
[11] Because involuntary manslaughter is a lesser included offense of murder, and because the evidence would support an involuntary manslaughter verdict whenever it would support a murder or voluntary manslaughter verdict, a defendant should be entitled to a requested instruction on involuntary manslaughter in all criminal homicide prosecutions. Allowing the jury to decide the case without ade-
“In those instances where an involuntary manslaughter verdict would be supported by the evidence, the failure to so acquaint the jury prevents it from operating with full knowledge of the relevant law and precludes the defendant from having a fair trial.”
Commonwealth v. Moore, 463 Pa. 317, 322, 344 A.2d 850, 853 (1975) (plurality opinion).
The need for an instruction on involuntary manslaughter also follows from the Commonwealth‘s burden of proof. The United States Constitution requires the Commonwealth to prove every element of the offense, including the degree of culpability, beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Thus, in any case in which the evidence would be sufficient to sustain a verdict of murder or voluntary manslaughter, the jury might conclude that the Commonwealth failed to meet its burden of proving malice, intent, or knowledge, but has proven recklessness or negligence.
In order to avoid the possibility that the jury will erroneously convict the defendant of murder or voluntary manslaughter, when only involuntary manslaughter has been proven, a jury instruction on involuntary manslaughter must be given. It is no answer that if the evidence proves involuntary manslaughter only, and no instruction on involuntary manslaughter is given, the jury should acquit:
“True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must as a theoretical matter, return a verdict of acquittal. But the defendant is entitled to a lesser offense instruction—in this context or any other—precisely because he should not be exposed to the substantial risk that the jury‘s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but
the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.”
Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 1997-98, 36 L.Ed.2d 844 (1973) (emphasis in original); see Commonwealth v. Thomas, 403 Pa. 553, 170 A.2d 112 (1961). The jury should not be forced to choose between a murder or voluntary manslaughter verdict and an acquittal when, properly instructed, the jury would find the defendant guilty of involuntary manslaughter.
It has been argued that an instruction on involuntary manslaughter should not be given in a murder trial because it might confuse the jury. See Commonwealth v. Nace, 222 Pa.Super. 329, 331, 295 A.2d 87, 88 (1972) (dictum); cf. Commonwealth v. Comber, 374 Pa. 570, 578, 97 A.2d 343, 346-47 (1953) (assault and battery instruction, on a murder indictment, might confuse the jury). We are not convinced that an instruction on involuntary manslaughter presents a serious risk of confusing the jury. Indeed, in many cases, it will help to clarify the issues by giving the jury “full knowledge of the relevant law.” Commonwealth v. Moore, 463 Pa. 317, 322, 344 A.2d 850, 853 (1975) (plurality opinion). The possibility of jury confusion in some cases is not an adequate ground to justify the unfairness of denying a requested instruction on involuntary manslaughter.
A conclusion that an involuntary manslaughter instruction would only confuse the jury is necessarily based on the assumption that, given the evidence presented in the case, it would be wrong to reach such a verdict. If the evidence proves involuntary manslaughter, and not voluntary manslaughter or murder, it cannot be said that it would confuse the jury to give an involuntary manslaughter instruction. But the issue whether the evidence proves involuntary manslaughter, and not voluntary manslaughter or murder, is for the jury to decide. It is the province of the jury to weigh the evidence, and the jury is entitled to believe all, part, or none of the evidence presented. Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976); Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975); Commonwealth v. Wright, 458 Pa. 236, 328 A.2d 514 (1974).
“The fact that [the witness‘] testimony raised an issue whether appellant was guilty of any crime at all is not inconsistent with appellant‘s claim that this same testimony raised an issue whether a lesser included offense had been committed. Nor would the jury have to credit all of [the witness‘] testimony. In Young v. United States, we held: ‘. . . it would be permissible for the jury to totally disbelieve . . . [the witness] or to believe that part which tended to exculpate appellant from an intent to [commit the greater offense.]‘”
The jury is not bound by any witness, or by any particular theory of the case.16
At appellant‘s trial, his requested instruction on involuntary manslaughter was denied. Allowing the jury to decide this case without an instruction on involuntary manslaughter deprived appellant of a fair trial. Judgment of sentence reversed and a new trial granted.
JONES, former C. J., did not participate in the decision of this case.
POMEROY, J., filed a concurring opinion.
EAGEN, J., concurs in the result.
NIX, J., filed a dissenting opinion.
Commentary to section 107(5) makes clear that a conviction of a lesser included offense is permissible, even when there is no “rational basis” for acquitting the defendant of the greater offense. The words “shall not be obligated” were added to section 107(5) to give the trial judge discretion to charge on a lesser included offense, even when the court believes there is no “rational basis” for such a verdict.
As fully set forth in Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977) (opinion by Pomeroy, J., joined by Eagen, C. J., announcing the decision of the Court), decided this day, the Crimes Code1 has made “[a]ll grades of unlawful killing lesser included offenses of the overall crime of criminal homicide.” It was there stated that “because the legislature [in the Crimes Code] has classified both murder and involuntary manslaughter as subdivisions of the major offense of criminal homicide, a defendant who has been charged with murder is entitled on request to have the jury instructed on the elements of involuntary manslaughter at least where evidence is presented at his trial on which a verdict of that less serious offense could rationally be based.” Ibid. 474 at 430, 378 A.2d at 1189.
In the case at bar, as in Commonwealth v. Polimeni, supra, and Commonwealth v. Ford, 472 Pa. 542, 372 A.2d 821 (1977), also decided this date, a jury could rationally have found the appellant guilty of involuntary manslaughter on the evidence presented;2 thus I agree that the trial court should have granted appellant‘s request to have the jury instructed on involuntary manslaughter, and that a new trial is required because this was not done. I thus concur in the mandate of the plurality opinion. As in Polimeni, supra, and Ford, supra, however, there is here no need to reach, as the plurality does, the question whether a defendant being tried for murder is entitled on request to an involuntary manslaughter charge regardless of the evidence presented to the jury. As Mr. Justice Roberts stated in Commonwealth v. Moore, 463 Pa. 317, 328, 344 A.2d 850, 856 (1975), “[we] need not decide whether rationality should be a requirement for a permissible verdict, for in this case, a verdict of involuntary
NIX, Justice, dissenting.
The issue raised in this appeal is whether an individual charged with murder and voluntary manslaughter has a right to have the jury consider the charge of involuntary manslaughter as a possible verdict. The majority concludes that a defendant should be entitled to a requested instruction on involuntary manslaughter in all criminal homicide prosecutions. Not only do I believe that the result reached is most unwise and will ultimately do a great disservice to the law of this jurisdiction, I am equally convinced that the reasoning employed by the majority to reach its conclusion is unsound. Hence this dissent.
This appeal provided a unique opportunity to reconsider, in light of our new penal code,1 the troublesome problems of the permissible verdicts in a homicide prosecution. Rather than seizing upon this opportunity to consider the area afresh, the majority has persisted in attempting to incorporate a principle relied upon in the past which, in large measure, created the problems which we have been, up to this point, unsuccessfully struggling to resolve.
Specifically, I refer to the majority‘s reliance upon the lesser included offenses analysis for the basis of its determination as to whether or not a jury instruction, requested by the defense, must be given in a given case. While I do not wish to deprecate the utility of the general concept of lesser included offenses in some areas of the criminal law,2 I do not believe the jurisprudence of this jurisdiction is advanced by
The first articulation of this concept by this Court appears in our decision in Dinkey v. Commonwealth, 17 Pa. 126, 129 (1851). There the Court was confronted with the question of successive prosecutions. The Court reasoned that since the accused, under an indictment for seduction might have been convicted of, and punished for fornication, he could not be subsequently tried for fornication after an acquittal under the seduction indictment. Thus, the Court sustained the plea of autrefois acquit and dismissed the indictment for fornication. It is interesting to note that this Court has since realized that the common law pleas of autrefois acquit and autrefois convict, both of these pleas being but a corollary of the lesser or constituent offense concept, was inadequate to protect Pennsylvania residents against successive prosecutions and under its supervisory power opted instead to embrace the “criminal episode” concept to determine when future prosecutions would be barred. Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).4 It is ironic that although we had no hesitancy when recognizing that the changing times had rendered the lesser included offense concept inadequate for a resolution
The problems with the use of a lesser included offense analysis has been further exacerbated because the concept was not confined to offenses necessarily included in the greater.5
“Both adultery and rape include the offence of fornication; it is necessarily involved in them: bastardy is not necessarily involved, but it may be.” Commonwealth v. Lewis, 140 Pa. 561, 564, 21 A. 501, 502 (1891) (Emphasis added).
This has been particularly true when applying the analysis to the law of homicides where the crimes have as a material element a particular result, i. e., the death of the victim. In approaching this area, our cases have treated the unlawful killing as the essence of all unlawful homicides and the manner of its commission merely as a circumstance.6 Superimposing the lesser included offense rationale upon this
“Murder is an unlawful killing of another person with malice aforethought, express or implied: Commonwealth v. Gooslin, 410 Pa. [285, 189 A.2d 157], supra; Commonwealth v. Carroll, 412 Pa. [525, 194 A.2d 911], supra, and numerous cases cited therein; Commonwealth v. Buzard, 365 Pa. 511, 76 A.2d 394. Malice express or implied is the hallmark, the criterion and the absolutely essential ingredient of murder.” (emphasis added). Commonwealth v. Kirkland, 413 Pa. 48, 63-4, 195 A.2d 338, 345 (1963). See also Commonwealth v. Finnie, 415 Pa. 166, 202 A.2d 85 (1964); Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911 (1963); Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464 (1955); Commonwealth v. Kelly, 333 Pa. 280, 4 A.2d 805 (1939); Commonwealth v. Gibson, 275 Pa. 338, 119 A. 403 (1923); Commonwealth v. Drum, 58 Pa. 9 (1868) (“The distinguishing criterion of murder is malice aforethought.“).
Ignoring this inconsistency a more serious problem resulted because there are many instances where the facts of a case would justify a finding of murder but are at the same time devoid of the elements of provocation and passion sufficient to provide a “rational basis” for a voluntary manslaughter finding. While this would not have been an insoluble dilemma if we had been willing to confine the lesser included offense concept to those instances where the evidence did provide some basis for a finding of voluntary manslaughter, we failed to so restrict its application. To the contrary, the cases are legion which we have held that a conviction of manslaughter may be returned under a murder indictment even in the absence of provocation and passion if
Even though we are faced today with the question as to when a requested charge as to involuntary manslaughter must be given, I have dealt at great length with the historical development of this problem as it related to voluntary manslaughter because I believe that it is instructive of the pitfalls that lie ahead if we insist upon viewing this question as one that must be resolved in the framework of the lesser included offense rationale. In the past, as the majority has noted, our courts declined to use the lesser included offense analysis in determining an accused‘s right to an instruction for involuntary manslaughter. While I agree with the majority that the rule relied upon for rejection of the lesser included offense analysis has very little legitimacy in our law today, I nevertheless believe that the majority is in error when it recognizes the inappropriateness of one doctrine but is willing to accept another rationale equally as inappropriate. It is my basic thesis that the question presented is fundamentally one of practice and that we are not at this juncture bound by any constitutional or statutory restrictions in determining the approach that would most enhance the law of this Commonwealth.9 Having been freed from the strictures of the past by virtue of the enactment of the 1972 Code, it is my view that our responsibility should be to fashion the most desirable rule consistent with our concept of the respective roles of the court, prosecutor and jury, keeping in mind our judgment as to what is fair from the standpoint of the accused.
First, under the 1939 Penal Code10 § 4701 expressly provided that the jury should decide the degree of murder.11 Conspicuously absent in the present code is any comparable language with regard either to murder, voluntary manslaughter or involuntary manslaughter. It is a fundamental rule of statutory construction that a change in language of a subsequent statute on the same subject may suggest a change in legislative intent. Haughey v. Dillon, 379 Pa. 1, 108 A.2d 69 (1954); Sekel v. Iagenemma, 170 Pa.Super. 621, 90 A.2d 587 (1952); Masland v. Bachman, 25 Pa.Cmwlth. 435, 361 A.2d 473 (1976); Nemitz v. Air Services International, 7 Pa.Cmwlth. 373, 298 A.2d 654 (1972). The omission of language similar to that used in § 4701 is a strong indication that the legislature, in enacting the new code, did not intend to require that a defendant should be permitted to have the jury consider all of the types of homicide in every murder prosecution.
I am satisfied that there is no legislative mandate requiring the result reached by the majority. We therefore must now consider the wisdom of imposing such a procedural rule under our supervisory powers.
“I have a serious question as to the validity of the majority‘s implicit assumption that the additional instructions to the jury as to the elements of involuntary manslaughter, while they are laboring under the onerous task of attempting to absorb the difficult distinctions between the other grades of homicide, will provide the jurors with an
understanding of ‘the full significance of the law of homicide in Pennsylvania.’ It is more likely to make comprehension impossible.” (footnote omitted).
The charging decision is properly a prosecutorial function. See Commonwealth ex rel. Davis v. Reid, 338 Pa. 351, 12 A.2d 909 (1940); A.B.A. Standards on The Prosecution Function, §§ 3.5, 3.9 and Commentaries (approved draft 1971). See generally, Commonwealth ex rel. Specter v. Martin, 426 Pa. 102, 232 A.2d 729 (1967); Commonwealth ex rel. Specter v. Bauer, 437 Pa. 37, 261 A.2d 573 (1970). The prosecutor‘s awareness of the strengths and the weaknesses of his case places him in the best possible position to assess whether a jury would be likely to reject a verdict of the higher grade of homicide under a given set of facts. I, therefore, suggest that the appropriate rule would be to give the option to the district attorney of charging all of the grades of criminal homicide or to permit him to select the specific charge or charges he deems appropriate under the evidence he intends to present.13 In the event that he chooses the latter course and the jury sees fit to acquit the accused, then under this Court‘s decision in Commonwealth v. Campana, supra, subsequent prosecution for the offenses not initially charged, would be barred.14 Additionally, this approach would encourage responsible charging by the prosecutor and deter the “boiler-plate” charging of accused.
378 A.2d 1215
COMMONWEALTH of Pennsylvania
v.
Russell FORD, Appellant.
Supreme Court of Pennsylvania.
Reargued Nov. 16, 1976.
Decided Oct. 7, 1977.
Notes
Keeble v. United States, 412 U.S. 205, 213, 93 S.Ct. 1993, 1998, 36 L.Ed.2d 844 (1973). Because we conclude that the new Crimes Code,“Indeed, while we have never explicitly held that the Due Process Clause of the [United States Constitution] guarantees the right of a defendant to have the jury instructed on a lesser included offense, it is nevertheless clear that a construction of the [statute before the Court] to preclude such an instruction would raise difficult constitutional questions.”
Nevertheless, defendants in this Commonwealth have been afforded a measure of protection against successive prosecutions by common law pleas of autrefois acquit and autrefois convict. These pleas prevent a prosecutor, after a conviction or acquittal of a “constituent” or lesser included offense in the first trial, for initiating a second prosecution for a greater offense. Id. 452 Pa. at 243, 244, 304 A.2d at 436 (Footnote omitted).“(a) Offense defined. — A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.
(b) Classification. — Criminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter.”
Thus, under the 1939 Code, supra, there was no question that the legislature conferred upon the accused the absolute right to have a finder of fact determine the degree of murder. Subsequent case law extended this right to voluntary manslaughter. See Commonwealth v. Jones, supra.“The jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether the person is guilty of murder of the first or second degree.”
The adoption of the position that the jury no longer has mercy-dispensing powers would bring the law of homicide into conformity with the axiomatic principle of criminal law that mitigating factors should be of concern only at sentencing. A contrary view, in my judgment, erases the legislatively created distinctions between the grades of homicide and substitutes the visceral reaction of the jury. Without a clear legislative direction such a substitution is an unwarranted perversion by this Court of legislative power.“(a) General rule.—A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
(b) Unreasonable belief killing justifiable.—A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title, but his belief is unreasonable.”