Commonwealth v. Frazier

• Decision Date: 17 January 1966
• Citation: 216 A.2d 337,420 Pa. 209
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Robert Ogden FRAZIER.
• Court: Pennsylvania Supreme Court

216 A.2d 337

420 Pa. 209

COMMONWEALTH of Pennsylvania, Appellant, v. Robert Ogden FRAZIER.

Supreme Court of Pennsylvania.

January 17, 1966.

Joseph M. Smith, Asst. Dist. Atty., Gordon Gelfond Asst. Dist. Atty., William F. Killeen, Asst. Dist. Atty Chief, Homicide Div., F. Emmett Fitzpatrick, Jr., First Asst Dist. Atty., James C. Crumlish, Jr., Dist. Atty Philadelphia, for appellant.

Lewis Tanner Moore, Harold L. Randolph, Philadelphia, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.

BELL, Chief Justice.

This is an appeal by the Commonwealth from the Order of the Court of Oyer and Terminer of Philadelphia County, which sustained defendant's demurrer to the Commonwealth's evidence.

Defendant was indicted in 1961 for the murder of his wife. At that time he was also indicted, on a separate bill of indictment, for voluntary and involuntary manslaughter. On July 9, 1962, defendant was brought to trial only on the bill charging murder. The Commonwealth's evidence, if believed, proved that defendant was guilty of first degree murder. Defendant's defense was that his wife committed suicide. There was no evidence, either by the Commonwealth or by the defendant, of passion or provocation. Nevertheless, the jury returned a verdict of voluntary manslaughter on, we repeat, the bill of indictment charging murder--a verdict permitted even under such evidence by many decisions of this Court: Commonwealth v. Frazier, 411 Pa. 195, 191 A.2d 369; Commonwealth v. Nelson, 396 Pa. 359, 152 A.2d 913; Commonwealth v. Steele, 362 Pa. 427, 66 A.2d 825. Astonishingly, defendant was not tried, we repeat, and no verdict was returned on the voluntary manslaughter indictment. Defendant was sentenced on the murder bill to a term of not less than 2 1/2 nor more than 5 years in the State Correctional Institution. Defendant thereupon appealed to this Court. On June 4, 1963, this Court reversed the judgment of sentence, on the ground that the lower Court committed prejudicial error in its charge to the jury, and ordered a new trial.

Defendant was again brought to trial on June 21, 1965, but this time he was tried only for voluntary manslaughter, since his prior conviction of voluntary manslaughter on the murder indictment operated in law as an acquittal of the charge of murder. Commonwealth v. Deitrick, 221 Pa. 7, 70 A. 275; Commonwealth v. Flax, 331 Pa. 145, 157, 200 A. 632; Commonwealth v. Gabor, 209 Pa. 201, 58 A. 278.

In Commonwealth v. Gabor, 209 Pa., supra, the Court pertinently said (page 205, 58 A. page 280): 'In the present case the indictment was for murder, but the verdict was guilty of manslaughter. Under the decisions in this state, the verdict of manslaughter was so far an acquittal of murder that the appellant cannot now be found guilty on that indictment of any higher grade than manslaughter.'

In Commonwealth v. Flax, 331 Pa. supra, defendant was convicted of murder in the second degree. The Court in this Opinion pertinently said (page 157, 200 A. page 638): 'When a new trial is had on this murder indictment the defendant cannot, of course, be tried for murder in the first degree. The verdict of the jury in the trial now being reviewed was equivalent to defendant's acquittal of that crime. See Com. v. Deitrick, 221 Pa. 7, 70 A. 275.'

At the present trial, the same evidence of killing his wife without passion or legally adequate provocation was presented by the Commonwealth exactly as it was presented at the first trial. With respect to this evidence, we said in Commonwealth v. Frazier, 411 Pa., supra (page 202), 191 A.2d page 373:

'While in view of the evidence, the verdict of voluntary manslaughter is difficult to understand, such a verdict is strictly within the jury's prerogative, and may be returned even in the absence of evidence of sufficient provocation and passion if the evidence as a whole is sufficient to warrant the defendant's conviction of murder: Commonwealth v. Steele, 362 Pa. 427, 66 A.2d 825 (1949), and Commonwealth v. Nelson, 396 Pa. 359, 152 A.2d 913 (1959).'

At this (Frazier's second) trial, defendant demurred to the Commonwealth's evidence on the ground that the evidence, if believed, amounted to and proved murder, but did not prove passion or legally adequate provocation, which are necessary ingredients of voluntary manslaughter. Commonwealth v. Nelson, 396 Pa. 359, 363-364, 152 A.2d 913; Commonwealth v. Donough, 377 Pa. 46, 52, 103 A.2d 694; Commonwealth v. Root, 403 Pa. 571, 582, 170 A.2d 310, 82 A.L.R.2d 452. The lower Court, we repeat, agreed with defendant's contention and sustained defendant's demurrer.

It would seem anomalous, strange and very unfair to Society to hold that a defendant indicted for murder could be convicted by a jury of voluntary manslaughter when there was ample evidence of murder but no evidence of passion; but on his retrial for voluntary manslaughter could not be convicted (by a jury) of voluntary manslaughter when exactly the same evidence was produced in the second trial as was produced in the first trial.

While this is a question of first impression in Pennsylvania, the Law is not and should not be so foolish as to unqualifiedly release and free without acquittal by a jury, a person indicted for homicidal manslaughter whom the evidence proved was guilty of murder. The Law was originally established to punish--severely and barbarously punish--persons who committed even small crimes. However, over the centuries the Law has developed and congealed, although not consistently or at times logically, along wiser and more humane lines. It is too often forgotten today (1) that the Law was established and exists principally for the protection and security of Society and (2) that in order to accomplish this principal objective, dangerous criminals have to be sentenced to and confined in prison. This not only furnishes sorely needed protection to lawabiding citizens while the imprisonment lasts, but it also acts as a deterrent to prospective criminals. Gradually people came to realize that the accused was likewise entitled to protection, i. e., the protection of a fair trial, and more recently that Society has a duty to (attempt to) rehabilitate a criminal. It took, we repeat, many years--sometimes more than a century--of of trial and error and of experiment and experience and evolution for the law to thus develop and congeal. Furthermore, if an important public interest conflicts with an important private interest, the public interest must prevail. The practical result is that technical rules must not be adopted which will seriously impair or destroy the underlying and basic principle of the criminal law, i. e., the protection of Society.

To release without a trial and acquittal, this man whom the Commonwealth's evidence shows is a dangerous criminal would likely jeopardize the safety of law-abiding citizens and would make a mockery of the Law and of Justice.

The Order of the lower Court is reversed and a new trial is ordered on the bill of indictment charging voluntary manslaughter.

EAGAN, J., concurs in the result.

JONES and COHEN, JJ., each file a dissenting Opinion.

ROBERTS, J. did not participate in this case.

JONES, Justice (dissenting).

This appeal presents a question of first impression in this Court.

The factual background of this appeal is most important. Frazier was indicted on two bills of indictment: first, a bill which charged him with the murder of his wife and second, a two-count bill which charged him with (a) voluntary manslaughter in the felonious killing of his wife and (b) involuntary manslaughter in the unlawful killing of his wife.

In July 1962, Frazier was tried upon the bill of indictment which charged him with murder: after trial, the jury returned a verdict finding Frazier 'guilty of voluntary manslaughter'. ^[1] On appeal from the judgment of sentence on that charge, this Court (411 Pa. 195, 191 A.2d 369) reversed because of errors in the trial court's instructions to the jury.

In June 1965, Frazier was tried on the bill of indictment which charged him with voluntary manlaughter and involuntary manslaughter. ^[2] At the conclusion of the Commonwealth's case, Frazier's counsel demurred to the evidence and the court below sustained the demurrer. This appeal followed.

A review of the record indicates clearly that the evidence of the Commonwealth would support a charge of murder but not a charge of voluntary manslaughter. What the Commonwealth now urges, in effect, is that, even though Frazier has once been tried and acquitted of the charge of murder and, therefore cannot be tried for murder again, yet the evidence of the Commonwealth, clearly showing commission of the greater crime of murder, will justify a finding of guilt of the lesser crime of voluntary manslaughter even...