Appeal, No. 137, Jan. T., 1973, from judgment of sentence of Court of Common Pleas of Chester County, Jan. T., 1970, No. 160, in case of Commonwealth of Pennsylvania v. Ernest David Jones. Judgment of sentence affirmed.
John R. Merrick, Public Defender, for appellant.
Michael Joseph Melody, Jr., First Assistant District Attorney, and William H. Lamb, District Attorney, for Commonwealth, appellee.
Before Eagen, O'brien, Roberts, Pomeroy, Nix and Manderino, JJ.
The Court being equally divided, the judgment of sentence is affirmed.
Mr. Chief Justice JONES took no part in the consideration or decision of this case.
The judgment of sentence should be reversed and appellant granted a new trial.
Opinion IN SUPPORT OF AFFIRMANCE BY MR. JUSTICE NIX:
This appeal questions the rule in this Commonwealth which permits the trial court to refuse a charge of voluntary manslaughter under a murder indictment where the evidence does not provide a basis for finding passion or legal provocation. n.1 It is contended that in
view of the statements by this court, that the jury always has the power under a murder indictment to return a verdict of voluntary manslaughter although the classical requirements of the crime of manslaughter are absent,*fn2 requires the court upon request to give such a charge.
The appellant, Ernest David Jones, was convicted by a jury of first degree murder and a life sentence was imposed. Motions for a new trial were argued and denied. This direct appeal followed. The evidence presented at trial indicated that the victim was shot approximately nineteen times by a.22 caliber rifle apparently while he was sleeping in a locked motor vehicle. The Commonwealth established that the rifle
which fired the shots causing death had been in the possession of the appellant on the morning of the day of the murder. In addition, the appellant admitted to a witness, Ms. Carolyn Hendrickson, that he in fact had shot and killed the deceased. Although conceding that there was no evidence upon which the jury could properly return a finding of voluntary manslaughter the defense specifically requested a charge of voluntary manslaughter and that request was denied and an exception allowed.
Since in recent months serious question has been raised as to our rule with reference to the right of the trial judge to refuse the charge as to voluntary manslaughter under a murder indictment a brief history at this point would be helpful in appraising the current state of the law in this regard.
Until near the end of the Fifteenth century all felonious homicides were punishable by death and by forfeiture of lands and goods; although the accused's life might be saved if he fell within the scope of benefit of clergy.*fn3 As yet, it had not been recognized that homicides feloniously perpetrated might differ in degree. Thus, manslaughter as a crime distinguishable from the more serious offense of murder did not exist. However, a series of statutes,*fn4 during the period from 1496 to 1547 withdrew benefit of clergy from murder with malice aforethought (malice prepensed). This resulted in a division of felonious homicide into two categories, that with and without malice aforethought. In the first, designated as murder, the benefit of clergy
was excluded and the punishment was death. The second, homicide without malice, subsequently manslaughter, was not capital even though intentional, if committed in the heat of passion upon adequate provocation. The English court's problem was to determine when such passion should suffice to avoid the death penalty.
In addition to creating a distinction in the law of felonious homicide between the capital crime of murder and the non-capital crime of manslaughter, it was established that a person indicted for the murder of another with malice aforethought might be found guilty of manslaughter. It was reasoned that the offenses did not differ in kind or nature but only in degree - not in substance of the fact from murder, but only in the ensuing circumstances, a variance as to which did not hurt the verdict.*fn5 Salisbury's Case, 1 Plow. 101 (1554); MacKalley's Case, 9 Co. Rep. 65, 67b (1611). The law has to the same effect been stated by Sir Mathew Hale and by Serjeant Hawkins in their respective Pleas of the Crown.*fn6 1 Hale's P.C. 449, 466; 2 Hawk. P.C. c.47, § 4.
American authorities are in accord:*fn7 "Pursuant to a general rule of the common law, when an indictment charges an offense that includes within its description another offense of less grade or lower degree, the jury properly may find the accused guilty of the less offense. And it is a familiar application of the doctrine that under an indictment charging murder in the common law form the defendant may be convicted of any of the grades of culpable homicide.... That the crime under the law and facts ought to be fixed at a higher grade or degree does not affect the application of the rule. It is deemed to be wholly within the province of the jury to fix the punishment; and even though the evidence may fully disclose that the defendant was guilty of a higher degree than that found against him still the verdict cannot be disturbed for that reason. The courts recognize that it is not an uncommon thing for a jury, out of sympathy, or what they conceive to be extenuating ...