No. 48 January Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, March Term, 1975, No. 48 (First Degree Murder, Life Imprisonment)
David Rudovsky, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Gaele McLaughlin Barthold, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Pomeroy, former J., did not participate in the consideration or decision of this case. Larsen, J., notes his dissent.
Appellant, Samuel Cain, was arrested, indicted and charged with murder, voluntary manslaughter, involuntary manslaughter and various weapons offenses arising out of the fatal shooting of Jerome Moody, and the wounding of Anthony McFadden on Christmas Eve of 1974. Following a jury trial, appellant was convicted of murder of the first degree for the death of Mr. Moody and sentenced to life imprisonment. This direct appeal followed.*fn1
After review of the various contentions raised, we are satisfied that at least one of these objections requires the reversal of the judgment of sentence and necessitates the grant of a new trial. That assignment of error involves an instruction given by the trial court to the jury as to the nature of the state of mind required to establish the crime of voluntary manslaughter as defined in Section 2503(b) of the Crimes Code. 18 Pa.C.S.A. § 2503(b). Appellant's objection was addressed to the following statements by the court on the subject:
THE COURT: Now, do any of you have any questions? It is an area that lawyers have taken a long time to study and puzzle out. We're just asking you to certainly in addition to following the law, also to use your common sense, as I've stated before, as to what you think really happened here. You are to determine the facts.
JUROR NO. 11 (Indicating)
JUROR NO. 11: Your Honor, the second part of the definition of ...