F. Emmett Fitzpatrick, Jr., J. C. Meredith, Philadelphia, for appellant.
Louis A. Perez, Jr., Asst. Dist. Atty., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a dissenting opinion in which Jones, C. J., joined.
The appellant, Kenneth Jackson, was charged with murder, aggravated robbery, and burglary, in connection with the killing of Gaetano Picirilli during the robbery of Picirilli's grocery store on March 7, 1969. The appellant's pretrial motion to suppress a statement given to the police was denied. A jury found appellant guilty of first degree murder, aggravated robbery, and burglary. Post-verdict motions were denied. Appellant received a life imprisonment sentence for the murder, a consecutive term of ten to twenty years for the aggravated robbery, and a consecutive twenty years probation for the burglary. This direct appeal followed.
On the evening of Friday, March 7, 1969, Picirilli was inside his grocery store in South Philadelphia, along with his employee, Willie Washington, when the appellant and Eugene Corbin, a co-defendant, entered and announced a hold-up. During the incident, Picirilli picked up a large knife and cut Corbin on the hand. Corbin in turn shot Picirilli once through the aorta, causing death almost immediately. The appellant and Corbin fled empty handed.
The appellant claims that the trial court erred in its refusal to charge the jury on the concept of killing by misadvanture. The appellant argues that the prosecution's evidence raised a strong presumption that Picirilli was killed accidentally. According to appellant, the clear implication of the evidence was that Corbin had the gun pointed at the decedent and that Picirilli caused the gun to discharge as a result of his knife thrust at Corbin. In support of his claim, the appellant cites Commonwealth v. Beach, 438 Pa. 37, 264 A.2d 712 (1970). In Beach, we held that the trial court erred in refusing to charge the jury on killing by misadventure. In Beach, however, the appellant was engaged in a lawful activity at the time of the killing. Such is not the case here. Beach is therefore clearly distinguishable from the present case. As argued by the prosecution, this case is governed by Commonwealth v. Flax, 331 Pa. 145, 200 A. 632 (1938), which defines the concept of killing by misadventure as follows:
"Homicide by misadventure (which is excusable) is the accidental killing of another, where the slayer is doing a lawful act, unaccompanied by any criminally careless or reckless conduct. 'Three elements enter into the defense of excusable homicide by misadventure:  The act resulting in death must be a lawful one;  It must be done with reasonable care and due regard for the lives and persons of others; and  the killing must be accidental and not intentional or without unlawful intent, or without evil design or intention on the part of the slayer. All these elements must concur and the absence of any one of them will involve in guilt. Even though the homicide is unintentional, it is not excusable where it is the result or incident of an unlawful act, such as pointing or presenting a gun, pistol or other firearm at another person in such a manner as to constitute an offense under the laws of the state, or unlawfully striking another with an intent to hurt, although not with an intent to kill, or
driving an automobile at an unlawful rate of speed.'" ...