Dissenting Opinion by
Mr. Justice Bell :Defendant was convicted of murder in the second degree. I would affirm the judgment. The majority opinion does not and cannot say that the evidence was insufficient to sustain the conviction, or that there was any trial error. Because the crimes are so basically different, it is very unusual that an indictment for murder and for involuntary manslaughter are tried together.* When the question has arisen this Court has wisely said that the question of trying the two 'bills of indictment together should be left to the discretion of the trial ¡Court** and we will not reverse unless there has been a clear abuse of discretion. In Commonwealth *557ex rel. Spencer v. Ashe, 364 Pa. 442, 71 A. 2d 799, the Court, speaking through Mr. Justice, now Chief Justice, Jones, said (page 446) : “. .. it is within the sound discretion of the trial court to determine whether a number of indictments against the same person should be tried together: Commonwealth v. Festa, 156 Pa. Superior Ct. 329, 332, 40 A. 2d 112; Commonwealth ex rel. Koleg v. Ashe, 140 Pa. Superior Ct. 215, 216, 14 A. 2d 175; and Commonwealth v. Tracey, 137 Pa. Superior Ct. 221, 227-228, 8 A. 2d 622. And, an exercise of discretion in such regard will not be reversed unless it clearly appears that the rights of the defendant were thereby prejudiced: Commonwealth v. Mulroy, 154 Pa. Superior Ct. 410, 413, 36 A. 2d 337.”
See also to the same effect: Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 132, 151 A. 2d 480.
The majority have impliedly decided that the Court below clearly abused its discretion. If the opinion is penetratingly read it is not difficult to perceive that what it “really” says, is that it believes that a conviction of involuntary manslaughter would be more just than a conviction of murder. It is a truism that “sympathy” cases frequently make bad law or create harmful precedents. It is too often forgotten that the remedy or cure for the conviction of a higher crime instead of a lower crime which an appellate court believes would have been more appropriate, lies not in a new trial (which incidentally increases the burden of our tremendously overburdened Courts) but in a commutation by (the Board of Pardons and) the Governor Avhich, in the light of past history, can undoubtedly be obtained if there is any justification therefor.
The District Attorney of Philadelphia County has never known this to happen.
The trial Judge refused defendant’s motion to have both indictments tried together.