A defendant, once acquitted of murder, may be retried under a manslaughter indictment and convicted of manslaughter, although the evidence presented proved the crime of murder but not that of manslaughter.
Commonwealth v. Frazier, 420 Pa. 209, 216 A.2d 337 (1966)

Nerone, F. Regan

English

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Duquesne Law Review Volume 4 Number 4 Article 7 1-1-1965 Criminal Procedure - Indictments - Due Process - Former Acquittal F. Regan Nerone Follow this and additional works at: https://dsc.duq.edu/dlr  Part of the Criminal Procedure Commons Recommended Citation F. R. Nerone, Criminal Procedure - Indictments - Due Process - Former Acquittal, 4 Duq. L. Rev. 601 (1965). Available at: https://dsc.duq.edu/dlr/vol4/iss4/7 This Recent Decision is brought to you for free and open access by Duquesne Scholarship Collection. It has been accepted for inclusion in Duquesne Law Review by an authorized editor of Duquesne Scholarship Collection. RECENT DECISIONSCRIMINAL PROCEDuRE-Indictments-Due Process-Former Acquittal-A defendant, once acquitted of murder, may be retried under a man-slaughter indictment and convicted of manslaughter, although theevidence presented proved the crime of murder but not that of man-slaughter.Commonwealth v. Frazier, 420 Pa. 209, 216 A.2d 337 (1966).The Supreme Court of Pennsylvania, speaking through Chief JusticeBell, has decided that a defendant acquitted on a charge of murder maybe retried, and convicted of voluntary manslaughter where the evidencein the second trial is sufficient to sustain a murder conviction, but notthat of voluntary manslaughter. Defendant was indicted under twoseparate bills of indictment in 1961; one for murder, and the other forvoluntary and involuntary manslaughter. The following year he wastried for murder. The jury found the defendant guilty of voluntarymanslaughter. Subsequently the defendant appealed to the PennsylvaniaSupreme Court, which reversed the verdict of the trial court because ofprejudicial error in the instructions to the jury and a new trial wasordered.'Defendant was again brought to trial on June 21, 1965; this time hewas tried for voluntary and involuntary manslaughter under the secondindictment. When the prosecution concluded its case the defendant de-murred on the ground that the State had failed to establish the necessaryelements of voluntary manslaughter; namely, passion or legally adequateprovocation.' The defendant's demurrer was sustained by the trial court,whereupon the Commonwealth appealed.'In Pennsylvania, a jury verdict in the first trial, finding the defendantguilty of voluntary manslaughter, has the legal effect of acquitting himon the charge of murder.4 In such a case as this, however, although theevidence is legally insufficient to establish the elements of manslaughter,the jury may return a manslaughter verdict regardless of this fact. Theonly requirement is that the evidence be such as would support a murderconviction. 5 The defendant, as a result, may not be retried for murder inthat this would violate his right to be protected from being twice put in1. Commonwealth v. Frazier, 411 Pa. 195, 191 A.2d 369 (1963).2. Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961); Commonwealth v.Nelson, 396 Pa. 359, 152 A.2d 913 (1959).3. Commonwealth v. Frazier, 420 Pa. 209, 216 A.2d 337 (1966).4. Commonwealth v. Flax, 331 Pa. 145, 200 At]. 632 (1938); Commonwealth v. Deit-rick, 221 Pa. 7, 70 At. 275 (1908); Commonwealth v. Gabor, 209 Pa. 201, 58 AtI. 278(1904).5. Commonwealth v. Frazier, supra note 1.DUQUESNE UNIVERSITY LAW REVIEWjeopardy for the same offense.' He can and was retried for voluntarymanslaughter in the Frazier case after the supreme court reversed thetrial court's previous manslaughter verdict.7The court, in overruling the defendant's demurrer, justified the positiontaken on the basis of public policy. According to Chief Justice Bell, theprimary purpose of our penal laws is to protect society. In order toaccomplish this purpose all criminals must be incarcerated.' The courtfailed, however, to go any further than expounding its own jurisprudentialattitude toward the criminal law and its purpose. No authority whateverwas cited to sustain the position taken. The apparent legal implicationswhich the case presented were ignored. In short, the opinion as written isvoid of any true legal analysis.The court has now extended the Pennsylvania rule of allowing a verdictof manslaughter to be returned on a murder indictment to include thepresent fact situation where the indictment is for manslaughter, and theevidence would support a murder conviction. Two constitutional issues,undiscussed by the majority, but which certainly must merit some con-sideration from the court are those of "due process"1 ° and "doublejeopardy," as it effects one's right to due process."The dissenting opinions of Justices Jones 2 and Cohen 13 recognize thatthe due process argument should have been considered by the majorityof the court. Both dissenting justices were dissatisfied with the decisionsince it enunciates a principle of law contrary to the concept of "funda-mental fairness" afforded those accused of crime in our society. Thedefendant had been indicted for voluntary manslaughter, not murder.Notwithstanding this fact, the evidence produced by the Commonwealthalleged the crime of murder, a crime of which the defendant had beenpreviously acquitted. In overruling the defendant's demurrer, the courthas permitted a defendant to be tried and convicted for a crime which hedid not commit, at least according to the allegations and the evidence. AsJustice Cohen stated:No appeal to emotions . . . should deprive any accused of theright to know the nature of the crime with which he is chargedand to require the evidence upon which he is convicted to con-6. Commonwealth ex rel. Walker v. Banmiller, 186 Pa. Super. 338, 142 A.2d 758 (1958).7. Commonwealth v. Frazier, supra note 1.8. Commonwealth v. Frazier, supra note 3.9. Commonwealth v. Comber, 374 Pa. 570, 97 A.2d 343 (1953).10. U.S. CONST. amend. XIV.11. Ibid.12. Commonwealth v. Frazier, supra note 3, at 214, 216 A.2d at 339.13. Id. at 217, 216 A.2d at 340.[Vol. 4:601RECENT DECISIONSform with the charged crime. To do so deprives him of hisliberty without due process.14The law of the Commonwealth of Pennsylvania protects its citizensfrom the perils of retrial after an acquittal."5 In the Frazier18 case, afterthe defendant had been acquitted of murder, the court permitted themurder indictment 7 to be transmitted into a charge of manslaughter, theeffect of which was that although the jury could not return a verdict ofmurder, they could treat the manslaughter indictment as though it wereone for murder in order to return the lesser verdict of manslaughter. Thecourt has extended the merger doctrine which permits a manslaughterverdict where the indictment is for murder to the Frazier18 situation.There, although the indictment was for manslaughter, the effect was toretry the defendant for murder, with the not insignificant exception thatthe jury was deprived of returning a murder conviction. In all otherrespects, however, the court has treated the manslaughter indictment asthough it were synonomous with one for murder. The question such acourse of action raises, however, is whether this is a violation of thedefendant's constitutional rights' 9 by subjecting him to retrial for acrime of which he was formerly acquitted.2"The majority of the court failed to consider this aspect of the caseand as a result these issues are left unresolved. Insofar as the court failedto consider them, one must infer that the court has found them devoidof any merit.F. Regan Nerone14. Ibid., 216 A.2d at 341.15. Commonwealth ex rel. Walker v. Banmiller, supra note 6. See also, United States v.Wilkins, 348 F.2d 844 (2d Cir. 1965), wherein the Court of Appeals for the Second Cir-cuit has found that the double jeopardy provision of the United States Constitution isapplicable to the states through the "due process" clause of the Fourteenth Amendment.The Pennsylvania courts, governed by the Third Circuit Court of Appeals on fderal ques-tions, is not restricted by this decision.16. Commonwealth v. Frazier, supra note 3.17. Commonwealth v. Frazier, supra note 1.18. Commonwealth v. Frazier, supra note 3.19. United States v. Wilkins, supra note 15.20. Commonwealth ex rel. Walker v. Banmiller, supra note 6.1969-1966]

Criminal Procedure - Indictments - Due Process - Former Acquittal

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Criminal Procedure - Indictments - Due Process - Former Acquittal

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