dissenting:
I would affirm this judgment. There is not the slightest doubt about the guilt of the appellant or the degree of it. Even his counsel, who come here under their professional obligation to take the most favorable view of their client’s case, have nothing to offer but a technicality, which in my opinion is not sound even technically.
It is true that the statute enacts that the jury if they find a person indicted guilty shall “ascertain in their verdict whether it be murder of the first or second degree,” but they are to “ ascertain,” i. e., to decide and declare, that fact, just as they do the other facts in the case, in accordance with their oath to render “ a true verdict according to the evidence. ” In the present case the only verdict the evidence would justify, was, as the judge instructed the jury, either murder of the first degree or not guilty. The jury had the power to render a different verdict, just as they had the power to find the prisoner guilty of assault only, but I cannot be convinced that it was reversible error for the judge to omit to tell them that they had the power, if they chose, to disregard their duty and violate their oaths by a verdict which no view of the evidence would *302sanction. It is well settled-that where the evidence does not justify a verdict of manslaughter it is not error to omit to charge the jury on that grade of homicide : Brown v. Com. 76 Pa. 319 (339); Clark v. Com. 123 Pa. 555 (575); Com. v. Crossmire, 156 Pa. 304; Com. v. Buccieri, 153 Pa. 535. I am unable to see why the distinction between the degrees of the highest form of homicide, murder, should have any greater sanctity to disregard the binding force of the evidence. There are some strong expressions in the cases on the duty of the court to leave this question to the -jury, but they should be understood as referring to the right of the jury to. decide the facts, according to the law and the evidence, where the evidence admits of an issue of fact. Where the evidence raises no such issue but points to only one alternative conclusion of murder of the first degree or not guilty at all, I can see no difference of duty either in court or jury between trials for murder or for any other crime.
On the contrary, in Shaffner v. Com., 72 Pa. 60, the judge charged the jury, “if the prisoner is guilty there can be no difficulty in ascertaining the degree for being by poison it must be in the first degree if purposely administered; . . . . if you are convinced that he is guilty of the crime, it is murder of the first degree as declared by the act of assembly, and it is your duty to say so without regard to the consequences to the prisoner.” This was held not to be error. And in McMeen v. Com., 114 Pa. 300, the charge was: “ If you find the defendant sent the poison to his wife with the intent to take her life, then the law says it is murder in the first degree and you should say so in your verdict.” This again was held not to be error. The distinction between these instructions to the jury and that given in the present case, is altogether too illusory and unsubstantial to be worthy of countenance by a court administering law and justice in a case of serious crime.