Appeal from judgment of sentence of Court of Common Pleas of Lawrence County, March T., 1968, No. 8, in case of Commonwealth v. Arietta Blanche McLaren.
Joseph Solomon, with him Chris J. Mitsos, for appellant.
James A. Caldwell, Assistant District Attorney, with him W. Thomas Andrews, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen, Mr. Justice Eagen, Mr. Justice Roberts and Mr. Justice Pomeroy concur in the result.
During the early hours of August 3, 1967, defendant-appellant, Arietta Blanche McLaren, shot and killed her husband in the first-floor bedroom of their Union Township home. Defendant was indicted for and convicted of voluntary manslaughter.*fn* Defendant was not indicted for murder. The evidence offered at trial clearly established that defendant intentionally shot her husband, but defendant introduced sufficient evidence of legal provocation and passion to reduce the killing to voluntary manslaughter. Notwithstanding the fact that defendant had not been indicted for murder (and was not charged with either first- or second-degree murder), the trial Judge charged the jury not only with respect to voluntary manslaughter but also, and at very great length, with respect to first- and second-degree murder. He further instructed the jury that if they felt the Commonwealth had proved any of the crimes of murder, they could find a verdict of guilty on the voluntary manslaughter charge. This portion of the charge was objected to, even though defendant's attorney called it a "general" exception, but the objection was overruled and defendant granted an exception. The jury returned a verdict of guilty of voluntary
manslaughter. The lower Court overruled defendant's motion for a new trial, and from the judgment of sentence entered on the verdict defendant took this appeal.
Defendant raises two questions, but because of our disposition of the appeal we deem it necessary to discuss and decide only one of them, namely, was prejudicial error committed by the Court's charging the jury with respect to first- and second-degree murder when the defendant had been indicted solely for voluntary manslaughter?
The Commonwealth contends that the charge of the Court was both accurate and proper and that Commonwealth v. Frazier, 420 Pa. 209, 216 A.2d 337 (1966), controls this case. We disagree with this contention.
In the Frazier case, the Court said (pages 211-214): "Defendant was indicted in 1961 for the murder of his wife. At that time he was also indicted, on a separate bill of indictment,*fn** 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**fn** 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 ...