dissenting.
This is the second time appellant has sought relief from this Court, see Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976). Today the majority is willing to accommodate him by reversing a judgment of sentence for a trial ruling which was unquestionably correct at the time that it was made.
Appellant was tried for murder under the provisions of the Penal Code of 1939, formerly 18 P.S. § 4101 et seq., as amended, because the homicide occurred on August 27, 1972, prior to the effective date of the new Crimes Code, 18 Pa.C.S.A. § 101 et seq. The appellant contends that the trial court erred in refusing to charge the jury regarding involuntary manslaughter thereby foreclosing the possibility of that verdict. While such an instruction has over my dissent been determined to be proper under the criminal homicide provisions of the new Crimes Code, 18 Pa.C.S.A. §§ 2501-05, see, e. g., Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977); Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977); Commonwealth v. Ford, 474 Pa. 480, 378 A.2d 1215 (1977); it was settled law that such' an instruction was improper under the homicide provisions of the Penal Code of *2731939. See, e. g., Commonwealth v. Jackson, 450 Pa. 417, 419 n. 2, 299 A.2d 209, 210 n. 2 (1973); Commonwealth v. Hoffman, 439 Pa. 348, 357, 266 A.2d 726, 731 (1970); Commonwealth v. Reid, 432 Pa. 319, 322, 247 A.2d 783, 785 (1968); Commonwealth v. Edwards, 431 Pa. 44, 52, 244 A.2d 683, 687 (1968); Commonwealth v. Soudani, 398 Pa. 546, 547 n. 1, 159 A.2d 687, 688 n. 1, cert. denied, 364 U.S. 886, 81 S.Ct. 177, 5 L.Ed.2d 107 (1960); Commonwealth v. Comber, 374 Pa. 570, 573-74, 97 A.2d 343, 344 (1953); Commonwealth v. Palermo, 368 Pa. 28, 31-32, 81 A.2d 540, 541-42 (1951); Commonwealth v. Hardy, 347 Pa. 551, 554, 32 A.2d 767, 768 (1943).* Since appellant was retried under the provisions of the 1939 Penal Code, the decisional law mandated that an instruction on involuntary manslaughter should not have been given. Thus the trial court’s ruling was consistent with the clearly defined law and should not be disturbed at this late stage.
LARSEN, J., joins this opinion.Long before the enactment of the 1939 Penal Code this principle was firmly entrenched in the law of homicide in this jurisdiction. See, e. g., Commonwealth v. Mayberry, 290 Pa. 195, 199, 138 A. 686, 688 (1927); Hilands v. Commonwealth, 114 Pa. 372, 380-81, 6 A. 267, 268 (1886); Walters v. Commonwealth, 44 Pa. 135 (1863); Commonwealth v. Gable, 7 Serg. & R. 423, 424 (1821).