Commonwealth v. Wilcox

364 A.2d 291, 468 Pa. 473, 1976 Pa. LEXIS 703

Opinion

OPINION OF THE COURT

PER CURIAM.

On July 15, 1974 Appellant was convicted by a jury of murder of the second degree, and subsequently sentenced to a term of imprisonment of not less than ten years nor more than twenty years. The basis of his appeal from the judgment is the refusal of the trial court to charge, as requested, on the elements of voluntary manslaughter. We agree with appellant that the court below was in error in refusing so to charge, and accordingly reverse and remand for a new trial.

In Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L. Ed.2d 274 (1974), six members of this Court, although for different reasons,

Footnotes

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* concluded that, upon request, a defendant charged with murder is entitled to an instruction on voluntary manslaughter even absent evidence which would support such a verdict. Jones was decided on May 2, 1974, over two months before appellant went to trial. He was thus entitled to the benefit of that decision.

Judgment of sentence reversed and the record is remanded for a new trial.

The Court in Jones was equally divided both as to the proper disposition of that particular appeal and as to the rationale for the holding. Mr. Justice Nix filed an Opinion in Support of Affirmance which was joined by Mr. Justice Eagen and Mr. Justice O’Brien; Mr. Justice Roberts filed an Opinion in Support of Reversal which was joined by Mr. Justice Pomeroy and Mr. Justice Manderino; Mr. Chief Justice Jones did not participate in the consideration or decision of that case.