Opinion by
On thе evening of April 24, 1967, at approximately 8:30 P.M., Huriel Hildreth, the deceased, and Eugene Butler entered Margie’s Bar at Second Street and Allegheny Avenue, in the City of Philadelphia. According to the testimony of Butler, an eyewitness to the homicide, they entered the bar so Hildreth could makе a long-distance telephone call. The telephone was located in the rear of the bar, adjacent to a pool table where defendant-appellant Ingram and others were playing *241 pool. Hildreth was making his telephone call when appellant requested him to move because Hildreth was blocking appellant from taking his next shot. Hildreth refused. Appellant walked over to the bar, grabbed a beer bottle, broke it, came back, and with its jagged edges struck Hildreth on the side of his face, causing him to fаll off the chair in which he was seated. Appellant went back to the bar and broke another beer bottle and returned and struck and slashed the other side of Hildreth’s face while he was still on the floor. Appellant returned to the bar a third time and broke a third bottle, and was about to resume his attack on Hildreth, but was stopped by the bartender and other patrons.
Butler was finally able to get Hildreth to his feet and immediately took him to the hospital. Hildreth died in the hospital that morning at 5:00 A.M. At the autopsy, the Commonwealth proved that death was caused by the severing of Hildreth’s jugular vein by a jagged instrument.
The jury returned a verdict of guilty of murder in the second degree. Appellant then filed post-trial motions for a new trial and in arrest of judgment. The lower Court denied these motions and sentenced appellant to a term of not less than five years nor more than fifteen years. From the judgment of sentence, defendant took this appeal.
Motion for a New Trial
Appellant raises two issues as grounds for a new trial: (1) whether it was error for the lower Court not to charge the jury that it could consider the degree of appellant’s
voluntary intoxication
on the question of whether he had the requisite state of mind to have the legal
malice
which is necessary for first- or second-degree murder, and, if not, whether he could be guilty of voluntary or involuntary manslaughter; and (2)
*242
whether the voir dire rule or doctrine enunciated in
Witherspoon v. Illinois,
Appellant and other witnesses testified that he (the appellant) was intoxicated * and had been drinking for almost four hours prior to his attacks on Hildreth. Appellant’s testimony disclosed a clear recollection of all his actions and activities both before and after he slashed Hildreth with the broken bottles, but he said he had no recollection of breaking any bottle or of attacking the deceased. *
Appellant bases his requested charge (1) on the testimony of himself аnd several other witnesses that he was intoxicated, (2) also the testimony of Bernard Cowitz, M.D., a psychoanalyst, and (3) on a drastic change in the long-established law of Pennsylvania with respect to voluntary intoxication.
Dr. Cowitz testified that “as a result of alcohol ingest, very probably and very likely he [appellant] had no recollection of this incident,” and that “there was a very definite possibility that at the time of this alleged offense that Mr. Ingram was not aware of his actions, as the result of the ingestion of alcohol.” On the basis of the above-mentioned evidence, appellant requested a charge that would allow the jury (1) to consider whether his voluntary intoxication rendered him incapable of having the requisite malice for either first- or second-degree murder, and (2) to consider that the degree of his intoxication cоuld reduce the killing to voluntary manslaughter. He argues that if the degree of intoxication can reduce a killing from murder in the first degree to murder in the second degree, it *243 can and should be legally adequate to reduce the killing to voluntary manslaughter. * For the reasons hereinafter stated, we disagree.
In order to consider аnd refute appellant’s contentions, we believe it would be helpful and wise to first consider what is murder, what is voluntary manslaughter and what effect, if any, voluntary intoxication has on each of said crimes.
The law defining murder and, except in felony murders, ** its essential element of malice, as well as (a) voluntary manslaughtеr and (b) the legal effect of intoxication, is well settled in this Commonwealth.
In
Commonwealth v. Commander,
“
‘
“Malice express or implied is the criterion and absolutely essential ingredient of murder. Malicе in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred аnd found from the attending circumstances. [Accord: Common
*244
wealth v. Chermansky,
In
Commonwealth v.
Walters,
“On the other hand, there was considerable evidence that appellant was seriously intoxicated at the time of thе stabbing. In fact, the trial judge at sentencing stated specifically that this was the reason he agreed to accept the Commonwealth’s certification that the crime was murder in the second degree. The law is quite clear that
intoxication can lower the degree of guilt
*
but it remains
murder.
**
‘Intoxication suffi
*245
cient to deprive the mind of power to form a design with deliberation and premeditation, and to properly judge the legitimate consequences of an act, will reduce a killing from murder in the first degree to murder in the second degree.’ Commonwealth v. McCausland,
Appellant makes a frontal assault on one of the most basic bulwarks of our law. In
Commonwealth v. Reid,
Our well-reasoned policy and well-established law have been adopted or followed by the overwhelming *246 majority of States which, continue to maintain the same policy. 8 A.L.R,. 3d 1,236, Voluntary Intoxiсation—Defense (1966); Hall, Intoxication and Criminal Responsibility, 57 Harv. L. Rev. 1045 (1944). *
Moreover, the facts in the instant case create an important factual presumption of malice. Appellant attacked a vital part of Hildreth’s body (face and throat) with a deadly weapon (jagged edges of broken beer bottles), thereby raising a factual presumption that the homicide was both intentional and malicious. As this Court recently said in
Commonwealth v. Winebrenner,
Appellant seeks tо have the evidence of his voluntary intoxication (which the jury does not have to believe—see
Commonwealth v. Winebrenner,
439 Pa., supra ;
Commonwealth v. Kirkland,
*248 We see no reason or logic, or realistic principles of law, ** to subject a man who voluntarily becоmes intoxicated to any different standards of criminal responsibility for second-degree murder or voluntary manslaughter than a sober man.
We further note that the Judge’s charge was an accurate statement of the law and we find no reversible error in the denial of defendant-appellant’s motion for a new trial.
Jury Exclusion—Witherspoon v. Illinois
The second ground upon which the appellant relies in his motion for a new trial is the alleged systematic exclusion from the trial jury of all persons whose conscientious scruples opposed or militated against the imposition of the death penalty. He contends this is contrary to
Witherspoon v. Illinois,
391 U.S., supra, and necessitates a new trial.
The United States Supreme Court has expressly refused to apply the Witherspoon rule to cases in which a penalty less than death had been imposed. Bumper v. North Carolina,
Motion in Arrest of Judgment
In
Commonwealth v. Winebrenner,
439 Pa., supra, the Court said (pages 77-78) : “In Commonwealth v. Te
*249
renda, 433 Pa., supra, the Court said (page 523): ‘In Commonwealth v. Tabb,
Considering the testimony of the eyewitness and all of the other relevant evidence, as well as all reasonable inferences therefrom, in the light most favorable to the Commonwealth, there is undoubtedly sufficient evidence to support a finding or verdict that appellant maliciously attacked and killed Hildreth with a dangerous weapon and was guilty of murder in the second degree.
Judgment of sentence affirmed.
Notes
It is interesting to note that appellant had just won three games of pool and was aware of the fact that Hildreth occupied the spot from which he could make his best shot.
If appellant’s contentions are sound, it would follow arguably and possibly logically that voluntary intoxication, like insanity, would absolve him of murder and of voluntary, as well as involuntary, manslaughter.
The only exception to this is the statutorily enumerated felony murder doctrine which mandates murder in the first degree: “Where, however, a murder is committed in the pеrpetration of a robbery or a burglary (or other statutorily enumerated felonies] it is, irrespective of any question of intent, murder in the first degree, and therefore the fact that this defendant may have been drinking to excess was of no legal significance as bearing upon the degree of his crime: Commonwealth v. Wooding,
Italics, ours,
Italics in Commonwealth v. Walters Opinion.
We note that there are some States—for Instance, California and Arizona—which allow intoxication to negate malice. In these States, there are statutes, legislatively enacted, which direct the jury to consider intoxication affecting “any particular purpose, motive or intent” necessary for crime. Section 22 of California Penal Code, and Ariz. Rev. Stat, 13-132. These jurisdictions have concepts and classifications of homicide wholly inapposite to that which we have in Pennsylvania.
Italics in Commonwealth v. Winebrenner Opinion.
The Model Penal Code, generally considered as a liberal statemеnt of criminal law and theory, also clearly rejected intoxication as a defense for consideration by the jury if the defendant had committed a homicide with “recklessness under circumstances manifesting extreme indifference to the value of human life.” Sections 2.08(2), 210.2(1) (b). We note in passing that the Model Penal Code—unlike the well-established law of Pennsylvania—does not use the generic term “malice” in its definition of murder, but substitutes “recklessness under circumstances manifesting an extreme indifference to the value of human life.”
The principal reason for the criminal law was originally “punishment”; in the last hundred years or so, the principal reason and objective are “the protection of Society.”
Italics in Commonwealth v. Tabb Opinion.