Vincent C. Murovich, Jr., Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Robert A. Zunich, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
On January 12, 1976, appellant, Warren Paul Mulgrew, was tried by a judge sitting with a jury and found guilty of
murder of the third degree, carrying a firearm without a license, and use of a firearm in a crime of violence. The above conviction arose from the homicide of Harry Fowler on July 2, 1975. On April 1, 1976, appellant's post-verdict motions were denied. Appellant then filed a motion to reconsider the post-verdict motions, which was denied on May 25, 1976. Appellant was sentenced to a term of imprisonment of not less than ten nor more than twenty years for the conviction of murder of the third degree, and a consecutive two-and-one-half-to-five year sentence for the firearms convictions. Appellant appealed the judgment of sentence of murder of the third degree to this court and appealed the judgments of sentence in the firearms violations to the Superior Court. The Superior Court, on August 9, 1976, certified to this court the appeal for the firearms convictions.
Appellant argues that the court below erred in failing to charge the jury on the consequences of a verdict of not guilty by reason of insanity. We agree.
Appellant requested the following instruction:
"1. If you find that the defendant was insane at the time of the shooting, he will be acquitted on the ground of insanity. However, this Court has the power to order the defendant to be kept in strict custody, in such place and in such manner as this Court shall see fit so long as such person shall continue to be of unsound mind."
The above point for charge did not correctly state the applicable law at the time of the trial concerning the confinement to mental hospitals of persons acquitted of crimes by reason of insanity.
Appellant relied on the Act of March 31, 1860, P.L. 427 Sect. 66, as amended by the Act of April 17, 1929, P.L 532, § 2, which read:
"In every case in which it shall be given in evidence upon the trial of any person charged with any crime or misdemeanor, that such person was insane at the time of the ...