Appeal from order of Court of Oyer and Terminer of Philadelphia County, Oct. T., 1961, No. 490, in case of Commonwealth of Pennsylvania v. Robert Ogden Frazier.
Joseph M. Smith, Assistant District Attorney, with him Gordon Gelfond and William F. Killeen, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellant.
Lewis Tanner Moore, with him Harold L. Randolph, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen concurs in the result. Mr. Justice Roberts took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Cohen.
This is an appeal by the Commonwealth from the Order of the Court of Oyer and Terminer of Philadelphia
County, which sustained defendant's demurrer to the Commonwealth's evidence.
Defendant was indicted in 1961 for the murder of his wife. At that time he was also indicted, on a separate bill of indictment, for voluntary and involuntary manslaughter. On July 9, 1962, defendant was brought to trial only on the bill charging murder. The Commonwealth's evidence, if believed, proved that defendant was guilty of first degree murder. Defendant's defense was that his wife committed suicide. There was no evidence, either by the Commonwealth or by the defendant, of passion or provocation. Nevertheless, the jury returned a verdict of voluntary manslaughter on, we repeat, the bill of indictment charging murder -- a verdict permitted even under such evidence by many decisions of this Court: Commonwealth v. Frazier, 411 Pa. 195, 191 A.2d 369; Commonwealth v. Nelson, 396 Pa. 359, 152 A.2d 913; Commonwealth v. Steele, 362 Pa. 427, 66 A.2d 825. Astonishingly, defendant was not tried, we repeat, and no verdict was returned on the voluntary manslaughter indictment. Defendant was sentenced on the murder bill to a term of not less than 2 1/2 nor more than 5 years in the State Correctional Institution. Defendant thereupon appealed to this Court. On June 4, 1963, this Court reversed the judgment of sentence, on the ground that the lower Court committed prejudicial error in its charge to the jury, and ordered a new trial.
Defendant was again brought to trial on June 21, 1965, but this time he was tried only for voluntary manslaughter, since his prior conviction of voluntary manslaughter on the murder indictment operated in law as an acquittal of the charge of murder. Commonwealth v. Deitrick, 221 Pa. 7, 70 Atl. 275; Commonwealth v. Flax, 331 Pa. 145, 157, 200 Atl. 632; Commonwealth v. Gabor, 209 Pa. 201, 58 Atl. 278.
In Commonwealth v. Gabor, 209 Pa., supra, the Court pertinently said (page 205): "In the present case the indictment was for murder, but the verdict was guilty of manslaughter. Under the decisions in this state the verdict of manslaughter was so far an acquittal of murder that the appellant cannot now be found guilty on that indictment of any higher grade than manslaughter."
In Commonwealth v. Flax, 331 Pa., supra, defendant was convicted of murder in the second degree. The Court in this Opinion pertinently said (page 157): "When a new trial is had on this murder indictment the defendant cannot, of course, be tried for murder in the first degree. The verdict of the jury in the trial now being reviewed was equivalent to defendant's acquittal of that crime. See Com. v. Deitrick, 221 Pa. 7, 70 A. 275."
At the present trial, the same evidence of killing his wife without passion or legally adequate provocation was presented by the Commonwealth exactly as it was presented at the first trial. With respect to this evidence, we said in Commonwealth v. Frazier, 411 Pa., supra (page 202): "While in view of the evidence, the verdict of voluntary manslaughter is difficult to understand, such a verdict is strictly within the jury's prerogative, and may be returned even in the absence of evidence of sufficient provocation and passion if the evidence as a whole is sufficient to warrant the defendant's conviction of murder: Commonwealth v. Steele, 362 Pa. 427, 66 A.2d 825 (1949), and Commonwealth v. Nelson, 396 Pa. 359, 152 A.2d 913 (1959)."
At this (Frazier's second) trial, defendant demurred to the Commonwealth's evidence on the ground that the evidence, if believed, amounted to and proved murder, but did not prove passion or legally adequate provocation, which are necessary ingredients of ...