Dissenting Opinion by
Me. Justice Roberts:While I can agree with the majority that in context the trial court’s charge was not a comment upon the guilt of the accused, I must again note my disagreement with the proposition that a trial judge may *5comment upon the guilt of an accused. See Commonwealth ex rel. Smith v. Rundle, 423 Pa. 93, 99-100, 223 A. 2d 88, 91 (1966) (dissenting opinion). Furthermore, in an area of the law that can be properly classified as evolving,* the majority studiously ignores an important caveat to the judicial privilege of comment upon guilt. “While it is difficult to define with any degree of specificity when such an opinion as here under discussion should not be expressed, it can be definitely stated that such should not be done in a very close case.” Commonwealth v. Ott, 417 Pa. 269, 273, 207 A. 2d 874, 877 (1965). (Emphasis added.)
I must dissent, however, on an issue not discussed in the majority opinion. The appellant contends that it was error for the trial judge to remove from the range of verdicts the jury might return the verdict of involuntary manslaughter. We have recently held that a defendant is entitled to a charge on voluntary manslaughter where there is some evidence which could support such a verdict. Commonwealth v. Pavillard, 421 Pa. 571, 576, 220 A. 2d 807, 810 (1966). I believe that a like rule should apply to the question of whether defendant was entitled to an involuntary manslaughter instruction when indicted and tried for such a charge.
Appellant here contended that the killing was a result of his efforts to defend himself. He stated that he was accosted by six or seven men who attempted to rob him and that, while in flight, he turned and fired several shots into the group. Involuntary manslaugh*6ter consists, inter alia, of the doing of an act not strictly unlawful in itself but which is done in an unlawful manner and without due caution. See Commonwealth v. Aurick, 342 Pa. 282, 288, 19 A. 2d 920, 923 (1941). In fact, the reckless discharge of a gun into a crowd is a classic example of involuntary manslaughter. See Commonwealth v. Micuso, 273 Pa. 474, 478, 117 Atl. 211, 213 (1922). The jury could have concluded that at the time appellant fired he was no longer in danger of his life and that his act was therefore reckless. I thus conclude that there was some evidence of involuntary manslaughter and that it was error to take this offense from the jury.
The Commonwealth argues that involuntary manslaughter, a misdemeanor, is not a permissible verdict under a murder indictment and that further it is improper to include both murder and involuntary manslaughter in the same indictment. See Commonwealth v. Palermo, 368 Pa. 28, 81 A. 2d 540 (1951). I disagree, for Pa. R. Crim. P. 219(a) (effective January 1, 1965) clearly allows joinder of a count of involuntary manslaughter in a murder indictment; in any event, I fail to see the relevancy of this argument.. Appellant was indicted and brought to trial on two indictments—one for murder and one for involuntary manslaughter. Under these circumstances, I believe that if there is evidence to support an involuntary manslaughter verdict, an accused is entitled to an instruction.
I dissent.
■. Mr.- Justice O’Brien joins in this dissenting - opinion.Compare Commonwealth v. Raymond, 412 Pa. 194, 194 A. 2d 150 (1963), cert. denied, 377 U.S. 999, 84 S. Ct. 1930 (1964) and Commonwealth v. Moyer, 357 Pa. 181, 53 A. 2d 736 (1947) with Commonwealth v. Lucier, 424 Pa. 47, 225 A. 2d 890 (1967), Commonwealth v. Young, 418 Pa. 359, 211 A. 2d 440 (1965) and Commonwealth v. Ott, 417 Pa. 269, 207 A. 2d 874 (1965).