decided: October 7, 1977.
COMMONWEALTH OF PENNSYLVANIA
CHARLES SMITH, A/K/A CORNELL SLOCUM, APPELLANT
Hugh C. Clark, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Gaile Barthold, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Pomeroy, J., did not participate in the consideration or decision of this case. Eagen, C. J., dissents from the order reversing judgment of sentence at No. 91. Nix, J., filed a concurring and dissenting opinion.
Author: Per Curiam
[ 474 Pa. Page 560]
OPINION OF THE COURT
On October 31, 1973, Earl Dennis was shot and killed. Appellant, Charles Smith, also known as Cornell Slocum, was later arrested, and two bills of indictment were issued against him. One indictment charged appellant with murder,*fn1 voluntary manslaughter,*fn2 and involuntary manslaughter.*fn3 The second indictment charged appellant with possession
[ 474 Pa. Page 561]
of an instrument of crime,*fn4 possession of a concealed weapon,*fn5 and possession of an offensive weapon.*fn6 After a jury trial, appellant was found guilty of voluntary manslaughter, possession of an instrument of crime, and possession of an offensive weapon. Post-verdict motions were denied, and concurrent sentences of five to ten years imprisonment on the manslaughter conviction, and two and one-half to five years imprisonment for each of the weapons offenses, were imposed. This appeal followed.*fn7
Appellant contends that the trial court erred in refusing appellant's request for a jury instruction on involuntary manslaughter, and in directing a verdict of not guilty on the involuntary manslaughter count.*fn8 We agree. In every prosecution for criminal homicide brought pursuant to the Crimes Code,*fn9 a defendant is entitled, upon request, to a jury instruction on involuntary manslaughter. Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (plurality opinion). Accordingly, judgment of sentence on the conviction
[ 474 Pa. Page 562]
of voluntary manslaughter must be reversed, and a new trial granted.
The trial court's denial of appellant's requested instruction on involuntary manslaughter does not require reversal of the weapons offense convictions.*fn10 Appellant raises three other claims in support of reversal, that: (1) the trial court erred in refusing to suppress identification evidence; (2) the prosecutor improperly cross-examined a defense witness; and (3) the prosecutor improperly cross-examined appellant. We have reviewed these claims and find them to be without merit. The convictions for the weapons offenses are affirmed.
Judgment of sentence in No. 91 reversed and a new trial granted; judgments of sentence in No. 295 affirmed.
NIX, Justice, concurring and dissenting.
To my knowledge this is the first instance in the history of American jurisprudence where the concept of protecting the rights of an accused has been so distorted as to result in the award of a new trial because a directed verdict of not guilty of one of the charges was entered. If the fallacy of their logic is not readily apparent from the absurdity of the result reached in this case, any further attempt to persuade the
[ 474 Pa. Page 563]
majority to reconsider its position would obviously be an exercise in futility. See generally my dissent in Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199.
I would affirm the judgment of sentence for both the weapons offense convictions and the voluntary manslaughter conviction.
Today's result grants an appellant a new trial because the trial judge directed the jury to find the accused not guilty of the crime of involuntary manslaughter. I can think of no better illustration of the absurd results that we may continue to expect if the majority persists in the present course as to when a charge for involuntary manslaughter is required. See generally Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (Dissenting Opinion, Nix, J.).