(concurring).
I concur in the decision of the Court that the trial court erred in refusing appellant’s motion to consolidate for trial the murder and involuntary manslaughter indictments. Furthermore, I agree with my brother Roberts in his separate opinion that the failure of the trial court to charge as requested on involuntary manslaughter was also error. This concurrence is appended to suggest in short compass what I consider to be the proper rationale dictating consolidation and to indicate when I believe a charge to the jury on involuntary manslaughter is warranted.
The Court posits as its reason for requiring consolidation of the two indictments against Carol Moore the dictates of “fundamental fairness.” Opinion of the Court, ante at 852. While no one can fault this premise as a basis for decision, there is, I believe, a less amorphous reason for granting appellant’s motion for consolidation. It is that, properly considered, involuntary manslaughter, like voluntary manslaughter, is a lesser-included offense under a murder indictment. Sharing this view, Mr. Justice Roberts has set forth the bases for itl in his opinion. I would add only that, so far as my research has discovered, the Pennsylvania view that involuntary manslaughter is not a lesser-included offense to murder is shared by no other jurisdiction. See e. g., United States v. Comer, 137 U.S.App.D.C. 214, 421 F.2d 1149 (1970); Anno., 11 A.L.R.Fed. 173 (1972); People ex rel. Fox v. Twomey, 15 Ill.App.3d 760, 305 N.E.2d 375 (1973); People v. Heffington, 32 Cal.App.3d 1, 107 Cal.Rptr. 859 (1973); Hewitt v. Commonwealth, 213 Va. 605, 194 S.E.2d 893 (1973); Anno., 102 A.L.R. 1019 (1936); Anno., 27 A.L.R. 1097 (1923); Anno., 21 A.L.R. 603 (1922).
Mr. Justice Roberts does not reach the question which is squarely raised in this case and decided by the majority, viz., whether the court should have granted the mo*337tion to consolidate the indictments for trial. But if it is sound to conclude that involuntary manslaughter is a lesser-included offense of murder, I think it follows as the night the day, that a motion for consolidation must be granted. It also follows that if no request for consolidation is made and the defendant is acquitted of murder, he may not then be prosecuted on the involuntary manslaughter indictment. Any other result would raise serious questions of double jeopardy. See Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889).*
Another consequence of the lesser-included offense concept is that in a case (unlike the present one) where there is no indictment for involuntary manslaughter but only one for murder, the presence of evidence which would enable the factfinder to return a verdict of involuntary manslaughter would entitle the defendant to an instruction on the elements of that offense. This conclusion is in accord with the views expressed by the Supreme Court of the United States in applying the federal rule on the doctrine of lesser-included offenses:
“The basic principles controlling whether or not a lesser-included offense charge should have been given in a particular case have been settled by this Court. . ‘[i]n a case where some of the elements of the crime charged themselves constitute a lesser crime, *338the defendant, if the evidence justified s] it . . [is] entitled to an instruction which would permit a finding of guilt of the lesser offense.’ * * * But a lesser-offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as .to both the lesser and greater offenses. * * * In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.” (Emphasis added.) Sansone v. United States, 380 U.S. 343, 349-50, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965) [quoting Berra v. United States, 351 U.S. 131, 134, 76 S.Ct. 685, 100 L.Ed. 1013 (1956)].
See also Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844, 847 (1973). It should be emphasized, however, that before a charge on involuntary manslaughter is required, there thus must be some evidence, from whatever source, which would permit the jury to return such a verdict. This is in contrast to the situation which now exists with respect to voluntary manslaughter. As this Court has recently held, a charge on voluntary manslaughter must be given on a trial for murder if it is requested, even absent evidence which would support a verdict of voluntary manslaughter. Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974). See also United States ex rel. Mathews v. Johnson, 503 F.2d 339 (3d Cir. 1974). Because at common law in Pennsylvania there reposes in the jury the inherent power to return such a verdict in the exercise of its discretion even in the absence of proof of the elements of voluntary manslaughter, we have concluded that the jury must be informed of its power in this respect. No simi*339lar historical reasons, however, dictate such a rule with respect to involuntary manslaughter.
Under the facts of this case, as the Court correctly determines, the jury could have found appellant’s conduct to be “criminally negligent.” Opinion of the Court, ante at 853. Thus its decision is sound that the trial court erred in refusing the motion for consolidation. I therefore concur in the decision to reverse and remand for a new trial.
It is to be further noted that in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1140 (1974), this Court held that a prosecutor must bring “in a single proceeding, all known charges against a defendant arising from a ‘single criminal episode.’ ” 452 Pa. at 253, 304 A.2d at 441 (emphasis added). While not controlling in the instant case (Campana was decided several months after Carol Moore’s trial), consolidation would also be required under that decision. Moreover, in a case covered by the new Crimes Code, the same result would ensue. 18 Pa.C.S. § 110(1)(ii) (1973).