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COMMONWEALTH PENNSYLVANIA v. JOHNNY WILCOX (10/08/76)

SUPREME COURT OF PENNSYLVANIA


decided: October 8, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHNNY WILCOX, APPELLANT

COUNSEL

Roy H. Davis, Drexel Hill, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Abraham Gafni, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Per Curiam

[ 468 Pa. Page 474]

OPINION OF THE COURT

On July 15, 1974 Appellant was convicted by a jury of murder of the second degree, and subsequently sentenced to a term of imprisonment of not less than ten years nor more than twenty years. The basis of his appeal from the judgment is the refusal of the trial court to charge, as requested, on the elements of voluntary manslaughter. We agree with appellant that the court below was in error in refusing so to charge, and accordingly reverse and remand for a new trial.

In Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974), six members of this Court, although for different reasons,*fn* concluded that, upon request, a defendant charged with murder is entitled to an instruction on voluntary manslaughter even absent evidence which would support such a verdict. Jones was decided on May 2, 1974, over two months before appellant went to trial. He was thus entitled to the benefit of that decision.

Judgment of sentence reversed and the record is remanded for a new trial.


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