Stanton D. Levenson, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, John M. Tighe, Asst. Dist. Attys., Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Pomeroy, J., filed a concurring opinion. Eagen, J., concurs in the result. Nix, J., filed a dissenting opinion.
Appellant Bennie Garcia was arrested on March 1, 1974, and charged with murder and voluntary manslaughter. At trial, appellant requested a jury instruction on involuntary manslaughter. The court refused his request because (1) appellant had not been indicted for involuntary manslaughter, and (2) in the court's view the evidence of involuntary manslaughter was "at best meager and feeble." The jury returned a verdict of guilty of voluntary manslaughter and the court, after denying post-trial motions, imposed a sentence of five to ten years imprisonment. In this appeal,*fn1 appellant contends that the court erred in refusing his
requested instruction on involuntary manslaughter. We agree, reverse the judgment of sentence and remand for a new trial.*fn2
At approximately 8:30 p.m., February 2, 1974, appellant, his brother, and three friends visited a tavern several miles from appellant's home. They had never been to the tavern before and did not know any of the patrons. Appellant was carrying a pistol tucked under his belt when he entered the tavern.
At approximately 1:00 a.m., a fight broke out in the men's room between appellant's brother and several other patrons of the tavern. Appellant rushed towards the men's room. As he entered the doorway to the men's room, appellant was pushed back by the victim.
There is conflicting testimony concerning what happened next. The Commonwealth's witnesses testified that appellant drew his pistol and shot the victim while they were a few feet apart. Appellant testified that he went back into the men's room to look for his brother, and the victim grabbed him by the hair and yanked his head down. Appellant claimed that he was hit several times as he struggled to get free, and that the pistol fell out from under his belt. He testified that, while the victim still held him, he picked up the pistol and it accidentally discharged. Appellant stated that he did not intend to fire the pistol.
The general rule in Pennsylvania is that on an indictment charging a particular offense the defendant may be convicted of a lesser offense which is included within the crime charged. Commonwealth v. Soudani, 398 Pa. 546, 547 n.1, 159 A.2d 687, 688 n.1 (per curiam), cert. denied, 364 U.S. 886, 81 S.Ct. 177, 5 L.Ed.2d 107 (1960); Commonwealth v. Page 455} Parker, 146 Pa. 343, 344, 23 A. 323 (1892) (per curiam); Commonwealth v. Lewis, 140 Pa. 561, 21 A. 501 (1891); Hunter v. Commonwealth, 79 Pa. 503, 506 (1875) ("The general rule is well settled that upon an indictment charging a particular crime, the defendant may be convicted of a lesser offense included within it."); Dinkey v. Commonwealth, 17 Pa. 126, 129 (1851); accord, Fed.R.Crim.P. 31(c) ("The defendant may be found guilty of an offense necessarily included in the offense charged . . .").*fn2a In our previous cases, however, this Court has not considered whether involuntary manslaughter is a lesser included offense of murder in determining whether involuntary manslaughter instructions should be given in a murder trial. See Commonwealth v. Hoffman, 439 Pa. 348, 357, 266 A.2d 726, 731 (1970); Commonwealth v. Reid, 432 Pa. 319, 322, 247 A.2d 783, 785 (1968); Commonwealth v. Hardy, 347 Pa. 551, 554, 32 A.2d 767, 768 (1943). Rather, these cases were predicated on a doctrine established in Commonwealth v. Gable, 7 Serg. & R. 423 (Pa.1821), that involuntary manslaughter is never a permissible verdict on a murder indictment.
In Gable, the defendant was indicted for murder, but the jury returned a verdict of "not guilty of murder but guilty
of manslaughter." On appeal, the defendant argued that the verdict was void for uncertainty because it did not specify whether he was guilty of voluntary manslaughter or involuntary manslaughter. This Court held that the verdict was not uncertain. After pointing out that murder is a felony and involuntary manslaughter is 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 Serg. & R. at 424; accord, Walters v. Commonwealth, 44 Pa. 135 (1863).
The rationale of Gable was rejected in Hunter v. Commonwealth, 79 Pa. 503 (1875). In Hunter, the defendant was indicted for assault with intent to kill, a felony, but the jury found him guilty of assault, a misdemeanor. The defendant argued that he could not be convicted of a misdemeanor on a felony indictment. The Court rejected this contention, reasoning that the common law rule relied on in Gable was based upon the different procedures employed at common law in felony and misdemeanor trials. Since the difference had long since disappeared in Pennsylvania, the Court observed that "[i]t is clear that the reason of the rule has no application in this state." 79 Pa. at 505. The Court held "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.
The Court inexplicably reverted to the doctrine that involuntary manslaughter was not a permissible verdict on a murder indictment, without rejecting or distinguishing Hunter, in Hilands v. Commonwealth, 114 Pa. 372, 6 A. 267
(1886).*fn3 After Hilands was acquitted of murder, he was indicted for involuntary manslaughter. On appeal from his conviction for involuntary manslaughter, this Court rejected Hiland's claim that the trial for involuntary manslaughter violated the double jeopardy clause:
"It is very evident [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 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 [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, this Court has regularly held that involuntary manslaughter is not a permissible verdict on a murder indictment. See Commonwealth v. Jackson, 450 Pa. 417, 419 n.2, 299 A.2d 209, 210 n.2 (1973); Commonwealth v. Hoffman, 439 Pa. 348, 357, 266 A.2d 726, 731 (1970); Commonwealth v. Reid, 432 Pa. 319, 322, 247 A.2d 783, 785 (1968); Commonwealth v. Edwards, 431 Pa. 44, 52, 244 A.2d 683, 687 (1968); Commonwealth v. Soudani, 398 Pa. 546, 547 n.1, 159 A.2d 687, 688 n.1 (dictum), cert. denied, 364 U.S. 886, 81 S.Ct. 177, 5 L.Ed.2d 107 (1960); Commonwealth v. Comber, 374 Pa. 570, 573-74, 97 A.2d 343, 344 (1953) (dictum); Commonwealth Page 458} v. Palermo, 368 Pa. 28, 31-32, 81 A.2d 540, 541-542 (1951); Commonwealth v. Hardy, 347 Pa. 551, 554, 32 A.2d 767, 768 (1943); Commonwealth v. Mayberry, 290 Pa. 195, 199, 138 A. 686, 688 (1927). But see Commonwealth v. Jones, 452 Pa. 569, 578, 308 A.2d 598, 604 (1973) (implying that involuntary manslaughter may be a permissible verdict if the facts presented by either side would support such a verdict); Commonwealth v. Robinson, 452 Pa. 316, 326, 305 A.2d 354, 359 (1973) (same). This Court never sought to justify the rule by analyzing whether involuntary manslaughter is a lesser included offense of murder. Some cases sought to support the rule by exhuming the corpse of the common law rule that a misdemeanor is not a permissible verdict on a felony indictment. See e. g., Commonwealth v. Comber, 374 Pa. 570, 580, 97 A.2d 343, 347 (1953) (dictum). Other cases simply restated the rule. Thus, this Court stated in Commonwealth v. Palermo, 368 Pa. 28, 31-32, 81 A.2d 540, 541 (1951): "It is still the law since Commonwealth v. Gable, 7 Serg. & R. 423 (1821) that . . . involuntary manslaughter which is a misdemeanor cannot be charged in an indictment with murder which is a felony."
The doctrine that involuntary manslaughter is not a permissible verdict on a murder indictment has been weakened by the adoption of Pa.R.Crim.P. 219(a), which became effective in 1965. Pa.R.Crim.P. 219(a) provides: "Where murder is alleged in an indictment, no other counts may be joined in the indictment except voluntary and involuntary manslaughter." Because involuntary manslaughter can now be charged in a murder indictment, it is questionable whether the doctrine established in Commonwealth v. Gable, 7 Serg. & R. 423 (Pa.1821), should still bar application of the lesser included offense doctrine when an involuntary manslaughter instruction is requested in a murder trial. But see Commonwealth v. Reid, 432 Pa. 319, 247 A.2d 783 (1968).
The continuing validity of the doctrine that involuntary manslaughter is not a permissible verdict on a murder indictment is also brought into question by our decision in Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975).
Moore was indicted for murder and voluntary manslaughter and, in a separate indictment, charged with involuntary manslaughter. Moore's petition to consolidate the indictments was denied, and the case was tried solely on the indictment for murder and voluntary manslaughter. At trial, Moore's request for a jury instruction on involuntary manslaughter was denied. On appeal, Mr. Justice (now Chief Justice) Eagen, speaking for himself and Mr. Justice O'Brien, stated that a motion to consolidate an involuntary manslaughter indictment must be granted when there is evidence to support an involuntary manslaughter verdict. Id. 463 Pa. at 320, 344 A.2d at 853 (plurality opinion) Mr. Justice Pomeroy, Mr. Justice Manderino, and this writer filed separate concurring opinions. Mr. Justice Pomeroy and Mr. Justice Manderino both agreed that the indictments should be consolidated); see Commonwealth v. Stock, 463 Pa. 547, 345 A.2d 654 (1975). The plurality reasoned that failure to consolidate the indictments was prejudicial error because it led to the refusal to instruct the jury on involuntary manslaughter. Commonwealth v. Moore, 463 Pa. at 322, 344 A.2d at 852-53 (plurality opinion of Eagen, J.); accord Commonwealth v. Stock, 463 Pa. 547, 551, 345 A.2d 654, 656 (plurality opinion of Eagen, J.); see Commonwealth v. Thomas, 403 Pa. 553, 170 A.2d 112 (1961). This writer and Mr. Justice Pomeroy stated that it would be error to refuse the instruction on involuntary manslaughter even if there had been no indictment for involuntary manslaughter. Commonwealth v. Moore, 463 Pa. at 323, 344 A.2d at 853 (concurring opinion of this writer); id. 463 Pa. at 336, 344 A.2d at 860 (concurring opinion of Pomeroy, J.).
Moore's trial was not governed by the new Crimes Code, 18 Pa.C.S.A. §§ 101 et seq. (1973). The Crimes Code has removed any validity the doctrine that involuntary manslaughter is not a permissible verdict on a murder indictment may have had after Moore. Under the Crimes Code, murder, voluntary manslaughter, and involuntary manslaughter are all classifications of a single offense -- criminal
homicide. 18 Pa.C.S.A. § 2501.*fn4 The common law doctrine that involuntary manslaughter is not a permissible verdict on a murder indictment, based on the classification of murder as a felony and involuntary manslaughter as a misdemeanor, cannot stand in view of the ...