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COMMONWEALTH v. SIMON (11/27/68)

decided: November 27, 1968.

COMMONWEALTH
v.
SIMON, APPELLANT



Appeal from judgment of Court of Oyer and Terminer of Philadelphia County, Aug. T., 1961, No. 528, in case of Commonwealth v. Thelma Simon.

COUNSEL

Malcolm W. Berkowitz, for appellant.

James D. Crawford, Assistant District Attorney, with him Michael J. Rotko, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Mr. Justice Musmanno did not participate in the decision of this case. Opinion by Mr. Justice Roberts, In Support of the Order. Dissenting Opinion by Mr. Justice O'Brien. Mr. Justice Cohen joins in this dissent.

Author: Per Curiam

[ 432 Pa. Page 387]

The Court being evenly divided, the judgment is affirmed.

Disposition

Judgment affirmed.

Opinion by Mr. Justice Roberts, In Support of the Order:

This is an appeal from a 1962 conviction of first degree murder in which the jury fixed the penalty at life imprisonment. The appellant assigns several reasons why this Court should reverse the jury's determination and grant her a new trial.

The first two involve claimed errors in the court's charge to the jury. Initially appellant contends that the court incorrectly instructed the jury that a finding of intent to kill on the part of the defendant would preclude a verdict of voluntary manslaughter. It is, in fact, correct that twice the judge gave instructions which approximate this assertion. First: "Voluntary manslaughter consists in the unlawful killing of another without malice . . . and that means without direct intent to kill. . . ."; later: "If you bear in mind that manslaughter is never accompanied by legal malice, that is, by a direct intent to kill. . . ." However, the Commonwealth replies that if the charge is studied in

[ 432 Pa. Page 388]

    its entirety, the additional language cleared up any misconception. Specifically, the Commonwealth relies on this part of the charge: "The act of killing must, of course, be voluntary. That is what the very name of the crime implies, because voluntary manslaughter involves an intentional act."

While it is our conclusion that the charge read in its entirety does not require reversal of this conviction, as delivered, the instructions were not a model of clarity on this aspect of the case. The law is well settled in this state that a conviction for voluntary manslaughter may be entirely consistent with an intent to kill. First, in the situation where a defendant acts under an unreasonable fear that he is in danger of serious bodily harm, there may be a specific intent to kill, and yet the offense may constitute voluntary manslaughter. Commonwealth v. Jordan, 407 Pa. 575, 585, 181 A.2d 310, 316 (1962); Commonwealth v. Thompson, 389 Pa. 382, 394, 133 A.2d 207, 214 (1957). The same result occurs in the second instance where the defendant may have formed a specific intent to kill, which intent was the product of blind passion or rage. Commonwealth v. Walters, 431 Pa. 74, 82, 244 A.2d 757, 762 (1968). Therefore, a trial court should make perfectly clear to the jury that, under given circumstances, the presence of an intent to kill should not preclude a verdict of voluntary manslaughter.

On the other hand, our review of this charge satisfies us that on this record the portions of the charge complained of were not of such a nature to justify the grant of a new trial. The situation which appellant claims was created by the trial court's charge could have been remedied by calling it to the attention of the court with an appropriate request for clarification. This was not done; nor was any point for ...


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