Commonwealth v. Williams , 490 Pa. 187 ( 1980 )

LARSEN, Justice,

concurring.

I agree with the majority’s holding, as I believe that instructing the jury on the offense of involuntary manslaughter where, as here, that crime is not rationally made out by the evidence, perverts one of the foundations of our jurisprudence, the jury system.

Jury instructions on irrelevant lesser-included offenses invite the jury “to render verdicts based on law which has nothing to do with the case so that the jury may, contrary to the facts, ‘dispense mercy’. Mercy is not the function of a jury — truth is.” Commonwealth v. McClendon, 478 Pa. 108, 116-17, 385 A.2d 1337, 1342 (1978) (Dissenting Opinion of Larsen, J.) As a result, any such system of “mercy dispensation” by the jury would be as unconstitutionally standard-less and infirm as a prior practice in this Commonwealth, which gave a trial judge unbridled discretion in deciding whether to charge the jury on voluntary manslaughter when that offense was not rationally made out by the evidence. See, Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1978) (Dissenting opinion of Nix, J.), and Cf. United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3rd Cir. 1974) and Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966).

Furthermore, we have no guarantee that juries will use unnecessary instructions on lesser-included offenses to dispense just mercy. The practical effect in some cases could be to promote convictions for the lesser grade of crime as a compromise verdict. Because the standards of appellate review reflect its inescapable remoteness, the injustice of such convictions may go unnoticed and, accordingly rules of trial procedure should be fashioned with an eye towards minimizing even the possibility of such an occurrence.

Finally, even if the jury diligently and conscientiously attempts to properly perform their function, irrelevant instructions can only serve to confuse the jury and place an obstacle in the path of a true and correct verdict, particularly in homicide prosecutions, See, Commonwealth v. Comber, 374 Pa. 570, 578, 97 A.2d 343, 346-47 (1953).

Consequently, for the foregoing reasons, and also those expressed in this writer’s opinion in Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980), I join the opinion of the majority.