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decided: October 3, 1975.



H. David Rothman, Pittsburgh, for appellant.

John J. Hickton, Dist. Atty., John M. Tighe, First Asst. Dist. Atty., Robert L. Eberhardt, Lawrence N. Claus, Asst. Dist. Attys., Pittsburgh, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, Pomeroy and Manderino, JJ., filed concurring opinions. Nix, J., filed a dissenting opinion. Jones, C. J., took no part in the consideration or decision of this case.

Author: Eagen

[ 463 Pa. Page 319]


The appellant, Carol Moore, was indicted by the grand jury of Allegheny County on charges of murder and voluntary manslaughter in connection with the death of her husband, James Moore. She was also indicted on the charge of involuntary manslaughter. Although defense counsel sought consolidation of the indictments, the case proceeded to trial upon only the murder and voluntary manslaughter charges.

After a jury trial the appellant was convicted of voluntary manslaughter and sentenced to serve a maximum of three years imprisonment. Post trial motions were timely filed and denied. This direct appeal from the judgment of sentence then followed.

The appellant contends the trial court committed reversible error in refusing, after timely motion,*fn1 to consolidate for trial the two indictments arising out of the

[ 463 Pa. Page 320]

    same criminal conduct, one indictment being for murder and voluntary manslaughter, the other for involuntary manslaughter. She asserts the failure to consolidate the indictments and the concomitant refusal to charge the jury on involuntary manslaughter*fn2 prevented the jury from understanding the full significance of the law of homicide in Pennsylvania and led to a compromise verdict of voluntary manslaughter.

It is well-established that the propriety of consolidating separate indictments for trial is ultimately within the sound discretion of the trial court and the exercise of this discretion will be reversed only where it clearly appears that the rights of the defendant were thereby prejudiced. Commonwealth v. Patrick, 416 Pa. 437, 445, 206 A.2d 295 (1965); Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 132, 151 A.2d 480 (1959); Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 446, 71 A.2d 799 (1950), cert. denied, 339 U.S. 990, 70 S.Ct. 1015, 94 L.Ed. 1390 (1950). While cognizant of the discretion vested in the trial court, we believe that failure to proceed on an involuntary manslaughter indictment, when consolidation is requested, is prejudicial error where the evidence presented would support such a verdict. Commonwealth v. Thomas, 403 Pa. 553, 170 A.2d 112 (1961). See also Commonwealth v. Robinson, 452 Pa. 316, 305 A.2d 354 (1973); Commonwealth v. Flax, 331 Pa. 145, 200 A. 632 (1938).*fn3 This is such a case.

[ 463 Pa. Page 321]

The facts of this case*fn4 indicate that on the day of the shooting, the deceased returned home from a motorcycle club meeting apparently in a hostile mood. While the appellant prepared dinner for her husband, he began cursing and yelling at her. Deciding that she had had enough of this treatment, the appellant went upstairs to their bedroom and prepared to leave her husband. She grabbed her pocketbook, placed some savings into it, and returned downstairs. When the appellant told her husband she was leaving him, he indicated that he would prevent her from going. The appellant then went back upstairs, placed her husband's loaded gun into her pocketbook, and proceeded downstairs. The deceased was later found on the floor of the living room with a fatal gunshot wound of the chest.

Appellant's contention is that the killing of her husband was accidental and involuntary, resulting from a struggle over the gun in her pocketbook.*fn5 This struggle allegedly occurred when her husband, seeking to prevent her from leaving with their savings, thrust his hand into her pocketbook and felt the gun. Since her hand was already in her pocketbook, feeling for her keys, it is contended their hands came together on the gun, precipitating a fight for control of it. Appellant claims that during this struggle the gun came out of her pocketbook and discharged, fatally wounding the deceased.

Although the Commonwealth, to refute the appellant's story, did present evidence indicating that no struggle took place, we need only examine the appellant's version in passing upon the propriety of consolidation.

[ 463 Pa. Page 322]

For it is within the jury's province to resolve conflicts in evidence, find where the truth lies and to determine the facts. Cf. Commonwealth v. Lowe, 460 Pa. 357, 333 A.2d 765 (1975); Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972). Thus, if a jury, giving credence to a defendant's version of an encounter could find that defendant guilty of involuntary manslaughter, fundamental fairness dictates the consolidation, upon request, of that indictment with the murder and voluntary manslaughter indictments as possible jury verdicts. As noted in Commonwealth v. Thomas, supra, the failure to consolidate leads to a refusal to instruct the jury on involuntary manslaughter. In those instances where an involuntary manslaughter verdict would be supported by the evidence, the failure to so acquaint the jury prevents it from operating with full knowledge of the relevant law and precludes the defendant from having a fair trial.

Involuntary manslaughter, which differs from murder in that specific intent and malice are absent, encompasses, "'the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.'" Commonwealth v. Mayberry, 290 Pa. 195, 198, 138 A. 686, 687 (1927). See also Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973); Commonwealth v. Flax, supra. Where the act itself is not unlawful, to make it criminal, the negligence must be such a departure from prudent conduct as to evidence a disregard for human life or an indifference to the consequences. Commonwealth v. Feinberg, 433 Pa. 558, 566, 253 A.2d 636 (1969); Commonwealth v. Aurick, 342 Pa. 282, 288-289, 19 A.2d 920 (1941).

Instantly, appellant's version, if believed by the jury, would have supported a verdict of involuntary

[ 463 Pa. Page 323]

    manslaughter.*fn6 Although her placing of the gun into her pocketbook for protection would not be an "unlawful act" within the definition of involuntary manslaughter, see Commonwealth v. Flax, supra, 331 Pa. at 157, 200 A. at 638, the jury may well have considered the subsequent struggle over a loaded weapon as needlessly creating a danger to human life, thus constituting criminally negligent conduct. Therefore, since the jury could have viewed appellant's conduct as criminally negligent, it was error for the trial court to deny consolidation upon request and fail to present involuntary manslaughter as a possible verdict.

Judgment reversed and new trial ordered.

ROBERTS, Justice (concurring).

In my view, the trial court's failure to instruct the jury on involuntary manslaughter, as requested by appellant, constitutes reversible error. Therefore, I concur in the judgment of the Court without reaching the question whether the trial court abused its discretion in refusing to consolidate the indictments for trial.

It is axiomatic that a trial court is required, at least when the defendant so requests, to illuminate all relevant legal issues for the jury and, in particular, to instruct

[ 463 Pa. Page 324]

    the jury on every verdict which it would be permissible for it to return. The minor premise, developed in this concurring opinion, is that a conviction of involuntary manslaughter would have been a permissible verdict in this case.


It is well settled in Pennsylvania that a criminal defendant may, at least in certain circumstances, be convicted, upon an indictment charging a particular offense, of a lesser offense which is constituent within the offense charged (the "lesser included offense" doctrine).*fn1 However, my research has uncovered no Pennsylvania statute,*fn2 rule, or case*fn3 which propounds a standard for

[ 463 Pa. Page 325]

    determining when an offense is included within a greater offense. The best articulation of such a standard, in my view, is found in section 1.07(4) of the American Law Institute's Model Penal Code:

"A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:

(a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(b) it consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or

(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission."

A "basic premise" of this section, that "it is desirable, where possible, to adjudicate the entire criminal liability of the defendant in a single trial,"*fn4 has been found persuasive by the Court in the past,*fn5 and I find it persuasive again today. Therefore, I would adopt section 1.07(4) as the law of Pennsylvania.*fn6

It has been suggested that a conviction of a constituent offense is a permissible verdict only if there is a rational

[ 463 Pa. Page 326]

    basis for the fact-finder to find the defendant guilty of the lesser offense and acquit him of the greater offense.*fn7

[ 463 Pa. Page 328]

    fact-finder disbelieves a portion, the remainder would justify a conclusion of guilt of the lesser offense, a verdict of guilty of the lesser offense is rational.*fn10 Finally, when the greater and lesser offenses are different degrees of the same basic offense differing only in the requisite state of mind, the susceptibility of the evidence to different inferences of what the defendant's state of mind was would render a verdict of guilty of the lesser offense a rational one.


The differences between the several degrees of criminal homicide are differences in the state of mind of the defendant at the time of the killing.*fn11 The various states of mind which establish that a criminal homicide is murder are grouped under the rubric of "malice," while it is hornbook law that the states of mind which render a killing manslaughter are not "malice." Analysis demonstrates, however, that the two classifications of states of mind are not neat pigeonholes.

In particular, one of the states of mind included within "malice" differs from the state of mind required for a conviction of involuntary manslaughter only as a matter of degree, a different gradation along the spectrum of culpable states of mind. One is guilty of murder if, in killing another, he "consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm to another . . . ." Commonwealth v. Taylor, 461 Pa. 557, 565-566, 337 A.2d 545, 549 (1975) (opinion of Roberts, J., expressing the view of four Justices); see also W. LaFave & A. Scott, Handbook on Criminal Law § 70 (1972). One is guilty of involuntary manslaughter if, in killing another, he either

[ 463 Pa. Page 330]

    consciously disregarded or, grossly deviating from a standard of reasonable care, failed to perceive a substantial and unjustifiable risk that his actions might cause death or serious bodily harm to another. Crimes Code, 18 Pa.C.S. § 2504(a),*fn12 302(b)(3),*fn13 302(b)(4).*fn14,*fn15

[ 463 Pa. Page 331]

There are at least two distinct ways in which the offense of involuntary manslaughter is included within the offense of murder. First, the evidence may persuade the jury that the defendant is guilty of murder in all respects except that the unjustified risk disregarded was merely substantial and not extremely high. Second, the evidence may persuade the jury that the defendant is guilty of murder in all respects except that the defendant did not, but should have, perceived the risk to others. Therefore, I conclude that involuntary manslaughter "differs from [murder] only in the respect that a less serious . . . risk of injury to the same person . . . or a lesser kind of culpability suffices to establish its commission."*fn16 Accordingly, involuntary manslaughter is a constituent offense of murder.


This Court has never considered whether involuntary manslaughter is a lesser included offense of murder. There is, however, a line of cases which, without considering whether involuntary manslaughter is a constituent offense, hold that involuntary manslaughter is never a permissible verdict upon a murder indictment.

In Commonwealth v. Gable, 7 S. & R. 423 (Pa.1821), the defendant was indicted for murder. The jury returned a verdict of "not guilty of murder but guilty of manslaughter." The defendant argued that the verdict

[ 463 Pa. Page 332]

    was void for uncertainty because it did not specify of which variety of manslaughter the jury found him guilty. This Court held that the verdict was not uncertain. After pointing out that murder is a felony and involuntary manslaughter a misdemeanor, the Court reasoned:

"[O]ne who is indicted for murder, cannot be convicted of involuntary manslaughter, because it is well settled, that there cannot be a conviction of a misdemeanor, on an indictment for felony. Therefore, when on an indictment for murder, the jury find that the defendant is guilty of manslaughter, it must be understood, such manslaughter as is felonious, which can be no other than voluntary manslaughter."

7 S. & R. at 424. Gable was followed in Walters v. Commonwealth, 44 Pa. 135 (1863).

All support for the Gable holding was removed by Hunter v. Commonwealth, 79 Pa. 503 (1875). In Hunter the defendant was indicted for assault with intent to kill, a felony; the jury returned a verdict of guilty of simple assault, a misdemeanor. The defendant argued that he could not be convicted of a misdemeanor upon a felony indictment. This Court disagreed.

The Court reasoned that the common law rule relied upon in Gable resulted from different procedures employed at common law in felony and misdemeanor trials. But any such difference had long since disappeared in Pennsylvania, leading the Court to observe that "It is clear that the reason of the rule has no application in this state." 79 Pa. at 505. The Court concluded:

"[W]e have no hesitation in declaring that the old common-law rule, that upon an indictment for a felony there can be no conviction for a misdemeanor, no longer exists in Pennsylvania."

79 Pa. at 509.

[ 463 Pa. Page 333]

Inexplicably the Court reverted to the Gable position, without rejecting or distinguishing Hunter, in Hilands v. Page 333} Commonwealth, 114 Pa. 372, 6 A. 267 (1886). After having been indicted for and acquitted of murder, the defendant was indicted for involuntary manslaughter. Upon the overruling of the defendant's plea of autrefois acquit, an appeal was taken to this Court, which affirmed, stating:

"It is very evident the [appellant] can never be tried again upon any charge of which he might have been convicted upon the first indictment. . . .

"But the protection extends no further than the offence charged in the first indictment, or of which he might have been convicted under it. He was not in jeopardy for any other offence. The first indictment charged murder. Under it he might have been convicted of murder of the first or second degree, or of voluntary manslaughter, but not of involuntary manslaughter. The latter offence is a misdemeanor; it must be charged as such, and cannot be included in an indictment charging felonious homicide . . . . It follows that when the [appellant] was put upon this trial for murder, he was placed in no jeopardy of a conviction for involuntary manslaughter."

114 Pa. at 380-81, 6 A. at 268.

Since Hilands the Court has regularly,*fn17 but not consistently,*fn18 held that involuntary manslaughter is not

[ 463 Pa. Page 334]

    a permissible verdict upon a murder indictment. Never did the Court seek to justify this holding by analyzing whether involuntary manslaughter was a constituent offense of murder. Several cases sought to support their holdings by exhuming the corpse of the common law rule which had been buried by the Court in Hunter. In most cases, no reason but blind adherence to precedent was given.

The only reason ever offered in support of the rule was that the additional instruction on involuntary manslaughter might tend to confuse the jury. See Commonwealth v. Nace, 222 Pa. Super. 329, 331, 295 A.2d 87, 88 (1972) (dictum); cf. Commonwealth v. Comber, 374 Pa. 570, 578, 97 A.2d 343, 346-47 (1953) (whether assault and battery is a permissible verdict upon a murder indictment). The Court, however, has not found the risk of jury confusion a persuasive reason for prohibiting conviction of a lesser included offense upon indictment for any crime other than murder. Moreover, jury confusion is surely no reason for prohibiting a conviction of involuntary manslaughter upon a murder indictment when a defendant is tried by the court without a jury. The possibility of jury confusion is too weak a reed upon which to rely to support a rule that is productive of great unfairness. See Commonwealth v. Thomas, 403 Pa. 553, 170 A.2d 112 (1961).

I conclude that the cases holding that involuntary manslaughter is not a permissible verdict upon a murder indictment ought not to be followed.


The final step in the analysis is to inquire whether, if the law were to hold that rationality is a requirement for

[ 463 Pa. Page 335]

    a permissible verdict, a verdict of involuntary manslaughter would have been a rational verdict in this case. I conclude that it would.

Appellant was tried upon indictments for murder and voluntary manslaughter. At trial she took the witness stand. The opinion announcing the judgment correctly concludes that

"appellant's [testimony], if believed by the jury, would have supported a verdict of involuntary manslaughter. Although her placing of the gun into her pocketbook for protection would not be an 'unlawful act' within the definition of involuntary manslaughter, the jury may well have considered the subsequent struggle over a loaded weapon as needlessly creating a danger to human life, thus constituting criminally negligent conduct."

Ante, at 853 (footnote & citation omitted).

The jury could rationally have concluded from all of the evidence that appellant consciously disregarded a substantial, but not extremely high, risk of harm to her husband. The jury could also have rationally concluded from the evidence that in the heat of a struggle appellant did not, but should have, perceived the risk that her conduct created. In either event, a verdict of involuntary manslaughter could rationally have been returned.


Appellant requested the trial court to instruct the jury on involuntary manslaughter. Upon the court's refusal, appellant took a specific exception to the charge and assigned this ground in support of her motion for a new trial. Because involuntary manslaughter would have been a permissible verdict, the instruction should have been given. Therefore, appellant is entitled to a new trial without regard to the fortuity of a pending indictment for involuntary manslaughter.

[ 463 Pa. Page 336]

POMEROY, Justice (concurring).

I concur in the decision of the Court that the trial court erred in refusing appellant's motion to consolidate for trial the murder and involuntary manslaughter indictments. Furthermore, I agree with my brother Roberts in his separate opinion that the failure of the trial court to charge as requested on involuntary manslaughter was also error. This concurrence is appended to suggest in short compass what I consider to be the proper rationale dictating consolidation and to indicate when I believe a charge to the jury on involuntary manslaughter is warranted.

The Court posits as its reason for requiring consolidation of the two indictments against Carol Moore the dictates of "fundamental fairness." Opinion of the Court, ante at 852. While no one can fault this premise as a basis for decision, there is, I believe, a less amorphous reason for granting appellant's motion for consolidation. It is that, properly considered, involuntary manslaughter, like voluntary manslaughter, is a lesserincluded offense under a murder indictment. Sharing this view, Mr. Justice Roberts has set forth the bases for it in his opinion. I would add only that, so far as my research has discovered, the Pennsylvania view that involuntary manslaughter is not a lesser-included offense to murder is shared by no other jurisdiction. See e. g., United States v. Comer, 137 U.S.App.D.C. 214, 421 F.2d 1149 (1970); Anno., 11 A.L.R.Fed. 173 (1972); People ex rel. Fox v. Twomey, 15 Ill.App.3d 760, 305 N.E.2d 375 (1973); People v. Heffington, 32 Cal.App.3d 1, 107 Cal.Rptr. 859 (1973); Hewitt v. Commonwealth, 213 Va. 605, 194 S.E.2d 893 (1973); Anno., 102 A.L.R. 1019 (1936); Anno., 27 A.L.R. 1097 (1923); Anno., 21 A.L.R. 603 (1922).

Mr. Justice Roberts does not reach the question which is squarely raised in this case and decided by the majority, viz., whether the court should have granted the motion

[ 463 Pa. Page 337]

    to consolidate the indictments for trial. But if it is sound to conclude that involuntary manslaughter is a lesser-included offense of murder, I think it follows as the night the day, that a motion for consolidation must be granted. It also follows that if no request for consolidation is made and the defendant is acquitted of murder, he may not then be prosecuted on the involuntary manslaughter indictment. Any other result would raise serious questions of double jeopardy. See Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889).*fn*

Another consequence of the lesser-included offense concept is that in a case (unlike the present one) where there is no indictment for involuntary manslaughter but only one for murder, the presence of evidence which would enable the factfinder to return a verdict of involuntary manslaughter would entitle the defendant to an instruction on the elements of that offense. This conclusion is in accord with the views expressed by the Supreme Court of the United States in applying the federal rule on the doctrine of lesser-included offenses:

"The basic principles controlling whether or not a lesser-included offense charge should have been given in a particular case have been settled by this Court. . . . '[i]n a case where some of the elements of the crime charged themselves constitute a lesser crime,

[ 463 Pa. Page 338]

    the defendant, if the evidence justifie[s] it. . . [is] entitled to an instruction which would permit a finding of guilt of the lesser offense.' * * * But a lesser-offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses. * * * In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense." (Emphasis added.) Sansone v. United States, 380 U.S. 343, 349-50, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965) [quoting Berra v. United States, 351 U.S. 131, 134, 76 S.Ct. 685, 100 L.Ed. 1013 (1956)].

See also Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844, 847 (1973). It should be emphasized, however, that before a charge on involuntary manslaughter is required, there thus must be some evidence, from whatever source, which would permit the jury to return such a verdict. This is in contrast to the situation which now exists with respect to voluntary manslaughter. As this Court has recently held, a charge on voluntary manslaughter must be given on a trial for murder if it is requested, even absent evidence which would support a verdict of voluntary manslaughter. Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974). See also United States ex rel. Mathews v. Johnson, 503 F.2d 339 (3d Cir. 1974). Because at common law in Pennsylvania there reposes in the jury the inherent power to return such a verdict in the exercise of its discretion even in the absence of proof of the elements of voluntary manslaughter, we have concluded that the jury must be informed of its power in this respect. No similar

[ 463 Pa. Page 339]

    historical reasons, however, dictate such a rule with respect to involuntary manslaughter.

Under the facts of this case, as the Court correctly determines, the jury could have found appellant's conduct to be "criminally negligent." Opinion of the Court, ante at 853. Thus its decision is sound that the trial court erred in refusing the motion for consolidation. I therefore concur in the decision to reverse and remand for a new trial.

MANDERINO, Justice (concurring).

I join in the majority conclusion that refusal to grant appellant's motion to consolidate the indictment for murder and voluntary manslaughter and the indictment for involuntary manslaughter constituted reversible error. In the instant case, the majority found that the evidence presented would have supported a verdict of involuntary manslaughter. I express no opinion on the issue of whether a requested consolidation should be granted in other cases.

NIX, Justice (dissenting).

Today's result represents a perpetuation of a doctrine which, I believe, was ill-conceived in its inception, Commonwealth v. Thomas, 403 Pa. 553, 170 A.2d 112 (1961), and now unwisely and unnecessarily expanded. For the reasons that follow, I must dissent.

[ 463 Pa. Page 340]

It has been a well-settled principle in this jurisdiction that consolidation or separation of indictments is a matter that is to be left to the sound discretion of the trial judge and this judgment will not be disturbed unless there is a showing of a manifest abuse of discretion which resulted in a clear injustice to the accused. Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965); Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 151 A.2d 480 (1959); Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954); Commonwealth ex rel. Spencer Page 340} v. Ashe, 364 Pa. 442, 446, 71 A.2d 799 (1950), cert. denied 399 U.S. 990, 70 S.Ct. 1015, 94 L.Ed. 1390 (1950); Commonwealth v. Grosso, 192 Pa. Super. 513, 162 A.2d 421 (1960). This principle is consistent with our concept of the role of the jurist in the conduct of the trial. It is his responsibility to attempt to identify, define and clarify the issues to be decided. The trial judge is expected, whenever possible, to minimize the complexities of the cause and not to compound them. It is therefore crucial that his exercise of discretion provide the flexibility in a determination on a request for severance or consolidation of indictments which would permit him to consider the extent to which the request would further complicate the task of the jury and weigh that factor against the benefit sought to be derived by the moving party. The majority opinion would remove this possibility.

I have a serious question as to the validity of the majority's implicit assumption that the additional instructions to the jury as to the elements of involuntary manslaughter, while they are laboring under the onerous task of attempting to absorb the difficult distinctions between the other grades of homicide, will provide the jurors with an understanding of "the full significance of the law of homicide in Pennsylvania." It is more likely to make comprehension impossible.*fn1

Commenting upon the evils of the unnecessary joinder of charges the late Mr. Chief Justice Bell, then Mr. Justice Bell, had occasion to observe:

"If there could be a conviction of assault and battery on a murder bill the trial Judge would always have to charge the jury on first-degree murder, second-degree murder, voluntary manslaughter, and, certainly if requested, on aggravated assault and battery and simple assault and battery. This has never been

[ 463 Pa. Page 341]

    done in the history of the Commonwealth. When we take into consideration the additional points the trial Judge must define in a murder case, such as presumption of innocence, reasonable doubt, and usually several others (depending upon the particular facts of that particular case) the jury would likely become so befogged by legal technicalities and so confused by the maze of the law as to make a clear comprehension, weighing and correlation of the facts exceedingly difficult, and the rendition of a just verdict both difficult and doubtful. Furthermore, the likelihood of a "murderer" escaping his just punishment and being found guilty of aggravated assault and battery or simple assault and battery instead of one of the degrees of murder or manslaughter of which he was actually guilty would be greatly increased to the detriment of society." Commonwealth v. Comber, 374 Pa. 570, 578-79, 97 A.2d 343, 346 (1953).*fn2

The ruling today is predicated upon our decision in Commonwealth v. Thomas, supra. Thomas represented a radical departure from the prior cases in this jurisdiction and was obviously motivated by the Court's reluctance to meet forthrightly the issue presented therein. There it was apparent that the majority of the Court believed the verdict returned (murder in the second degree) was sufficiently supported by the record to meet our sufficiency of the evidence test yet believed the weight of the evidence to be otherwise. Attempting to avoid our long respected and salutary principle that the weight of the evidence is best left with the trial court, the Thomas Court contrived this principle to reach the result they desired.*fn3

[ 463 Pa. Page 342]

The inconsistency of the Thomas ruling becomes apparent when we attempt to analyze it. It suggests that it is a right of the accused, where there is evidence of involuntary manslaughter, to have a jury consider this charge. However, inexplicably, they conditioned this right upon the existence of an indictment for involuntary manslaughter. If fundamental fairness requires, under a given record, that the finder of fact be allowed to consider the charge of involuntary manslaughter, why is that judgment dependent upon whether a prosecutor has been fit to indict? If there is some validity to the majority's position they necessarily must overrule the long standing principle that the judge is not entitled to charge as to involuntary manslaughter where there is no indictment therefor. Commonwealth v. Edwards, 431 Pa. 44, 52, 244 A.2d 683 (1968); Commonwealth v. Comber, supra 374 Pa. at 575, 97 A.2d at 345; Commonwealth v. Palermo, 368 Pa. 28, 31-32, 81 A.2d 540 (1951); Commonwealth v. Hardy, 347 Pa. 551, 554, 32 A.2d 767 (1943). Additionally there is no longer a basis for the rule that an involuntary manslaughter verdict may not be returned under a murder indictment. Commonwealth v. Comber, supra 374 Pa. at 575, 97 A.2d 343; Commonwealth v. Palermo, supra; Commonwealth v. Mayberry, 290 Pa. 195, 199, 138 A. 686 (1927).

Not only has the majority reaffirmed the doctrine which, I believe, is unsound, but it has compounded this error by extending it to a point which, in my judgment, renders it more egregious. In Thomas, the evidence presented in the Commonwealth's case strongly suggested the propriety of an involuntary manslaughter finding. On that record the holding of Thomas could legitimately have been confined to instances where there is substantial

[ 463 Pa. Page 343]

    evidence of involuntary manslaughter emanating from the Commonwealth's case-in-chief. Today, however, not only is the evidence of involuntary manslaughter of such a character that it would stretch the credulity of the most naive, but even more important it was introduced by the defense.

The Commonwealth established that there had been a intense marital disagreement between appellant and the deceased. When the husband attempted to prevent the wife from leaving the household, the wife went upstairs and placed a loaded gun in her pocketbook. The Commonwealth also established that there was no sign of a struggle and that the bullet wound, causing the death, was discharged from the gun appellant had placed in her pocketbook. It was in this setting that the defense attempted to create the phantasm of a struggle for this weapon during which the husband was unintentionally shot. To rule under these circumstances that a court is mandated to permit consolidation upon request and blindly ignore all of the other ramifications created by consolidation, is to me completely without justification and strains the quality of justice in Pennsylvania.

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