Lester G. Nauhaus, Paulette J. Balogh, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Charles W. Johns, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Nix, J., filed a concurring opinion. Eagen, C. J., and Roberts, J., concur in the result. Manderino, J., dissents.
The appellant, while riding with a friend in the rear of a taxi, shot and killed the driver and a woman in the front seat. For many hours the appellant had imbibed a good deal of liquor and wine. His defense was his belief that the driver and the woman were planning to rob him. The jury found him guilty of third-degree murder. We are asked to reverse the judgment of sentence because the court below, although it charged on intoxication and on voluntary manslaughter,
did not charge that intoxication could reduce the crime of murder to voluntary manslaughter.*fn1
No such charge was requested*fn2 and hence the issue was waived. Pa.R.Crim.P. 1119(b). The same point, however, is raised by appellate counsel on the ground that trial counsel was ineffective in failing to make the request. This claim manifestly has no validity if the instruction is an incorrect legal proposition.
At the time of the homicide in March of 1976, the Crimes Code, 18 Pa.C.S.A. § 308, provided:
"Intoxication or drugged condition are not, as such, defenses to a criminal charge; but in any prosecution for any offense, evidence of intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to negative an element of the offense."
Consonant with this provision, we held in Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975), that intoxication could be shown to negate the presence of specific intent whenever it was an element of a crime and that this rule was not limited to felonious homicide.*fn3
As to the allowance of intoxication to constitute a basis for reducing murder to voluntary manslaughter, the Graves case, 461 Pa. at 125, 334 A.2d at 664 analyzed the prior ...