Daniel-Paul Alva, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Asst. Dist. Atty., James Shellenberger, Philadelphia, 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. Roberts, J., filed a concurring opinion. Nix, J., concurred in the result.
Appellant, Willard Mason, was tried and convicted on June 27, 1974, in a jury trial, of voluntary manslaughter, unlawfully carrying a weapon without a license, and carrying firearms on public streets or public property in Philadelphia. Post-verdict motions were denied on January 21, 1975. For the voluntary manslaughter conviction, appellant was sentenced to imprisonment for not less than two nor more than twelve years. This appeal, involving only the voluntary manslaughter conviction, followed.
Appellant contends that the trial court erred in failing to properly instruct the jury concerning the elements of voluntary manslaughter. We agree and therefore reverse the judgment of sentence and award a new trial.
During the charge to the jury, the trial court gave instructions concerning murder in the first degree, murder in the second degree, and voluntary manslaughter. In describing the elements of voluntary manslaughter, however, the court made no mention of intent. It charged that the difference between murder and voluntary manslaughter is that the latter requires no malice. At this point, appellant's counsel did not object to the charge and the jury began its deliberations.
After deliberating for three hours, the jury sent the following note to the court:
"Your Honor, can you please describe what the terms: Murder, first degree, second degree, voluntary manslaughter.
[Sic] We are having trouble understanding the terms in reference to malice, premeditation and willfulness. Thank you. Jury"
The jury was brought back into the courtroom and the judge again gave instructions concerning the elements of murder in the first degree, second degree, and voluntary manslaughter. Again, the court did not instruct the jury that intent is a necessary element of voluntary manslaughter. This time, before the jury returned to deliberate, defense counsel asked the court to charge the jury that "voluntary manslaughter contemplates a voluntary act of killing by the defendant where the defendant, in fact, intends ...