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May 27, 1953


Appeal, No. 199, Jan. T., 1952, from order of Superior Court, Oct. T., 1951, No. 240, affirming judgment of Court of Quarter Sessions of Philadelphia County, Dec. Sessions, 1949, No. 120, in case of Commonwealth of Pennsylvania v. James Comber. Order reversed.


John Patrick Walsh, with him Leon Rosenfield and Walsh, Tubis & Dunn, for appellant.

Michael von Moschzisker, First Assistant District Attorney, with him Samuel Dash, Assistant District Attorney and Richardson Dilworth, District Attorney, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Bell

[ 374 Pa. Page 572]


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*fn1 affirming the judgment of sentence of the Court of Quarter Sessions.

Prior to the present case, 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, 1949, 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

[ 374 Pa. Page 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 manslaughter.

The defendant pleaded autrefois acquit. The Court sustained the Commonwealth's demurrer 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: Could 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 acquitted of murder and convicted of voluntary manslaughter; but he cannot

[ 374 Pa. Page 574]

    said: 'As to this ground of complaint, it is sufficient to say that, since a person tried for murder cannot be guilty of involuntary manslaughter, a conviction of manslaughter, on an indictment such as the one before us, must be considered as a finding of voluntary manslaughter.' Com. v. Micuso, 273 Pa. 474, is another case where the indictment was for murder, and the facts plainly showed that crime; a verdict of voluntary manslaughter was sustained."

In Commonwealth v. Mayberry, 290 Pa. 195, 199, 138 A. 686, the Court said: "Under the indictment charging murder and manslaughter, there could not be a conviction of involuntary manslaughter : Com. v. Weinberg, 276 Pa. 255; Com. v. Micuso, 273 Pa. 474; Hilands v. Com., 114 Pa. 372; Walters v. Com., 44 Pa. 135; Com. v. Gable, 7 S. & R. 423; and the court properly rejected the verdict so finding....."

In Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540, this Court held that it was improper to include a charge of involuntary manslaughter in an indictment for murder, and said (pp. 31-32): "... It is still the law since Commonwealth v. Gable, 7 S. & R. 423 (1821) that except as modified by statute, involuntary manslaughter which is a misdemeanor cannot be charged in an indictment with murder which is a felony. Hilands v. Commonwealth, 114 Pa. 372, 6 A. 267 (1886); Walters v. Commonwealth, 44 Pa. 135 (1862). Though it is true that the Act of June 24, 1939, P.L. 872, Sec. 703, 18 P.S. 4703, permits the district attorney to charge both voluntary and involuntary manslaughter in the same indictment, this language, which is similar to that contained in the former Act of 1794, (3 Sm. L. 188), ...

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