Dissenting Opinion by
Mr. Justice Allen M. Stearne:In my opinion the defendant was improperly convicted of murder in the first degree with penalty fixed at death. The killings were proven and in fact were conceded. The defense was insanity. If defendant toere sane, there cannot be the slightest doubt but that he was guilty of wilful, deliberate and premeditated murder, which fully justified the imposition of a sentence of death. I would, however, grant a new trial (a) because the verdict was against the weight of the evidence (b) because there was trial error in admitting in evidence unnecessary photographs which were of an extremely gruesome and prejudicial nature — even though *207counsel for defendant consented to their admission, and where there was no explanation to the jury by the trial judge concerning the reason for such admission.
Under the Act of February 15, 1870 P. L. 15 sec. 2, 19 PS 1187, an appellate court is required to review the law and evidence and determine whether the ingredients necessary to constitute murder in the first degree were proven to exist. Furthermore, in a homicide case, especially where a defendant’s life is at stake, and where defendant may have been deprived of a fair and impartial trial or suffered manifest injustice an appellate court will review the case notwithstanding the failure, of defendant’s counsel to take proper exceptions : Commonwealth v. Stowers, 363 Pa. 435, 70 A. 2d 226, and cases therein cited.
Defendant, Guerino Carluccetti, on April 2, 1935, killed Emilio Giovannetti and Laura Giovannetti, his wife. The revolting details of the killings need not again be recited. The victim husband was killed by gun shot wounds inflicted by defendant. The wife was killed by defendant beating her over the head with a gun stock. The brutal and unjustifiable killings, in all their revolting circumstances, obviously indicated or suggested the possible insanity of defendant. A lunacy commission was appointed on May 24,1935, and a hearing had on June 24, 1935, following which defendant was committed to the Farview State Hospital for the criminal insane. Defendant was therein incarcerated for fourteen years, until May 20, 1949, when he was returned to Dauphin County for trial. Defendant was tried commencing September 19, 1949. On September 23, 1949, a verdict was rendered by the jury of guilty of murder in the first degree with penalty fixed at death, upon which sentence was pronounced.
The sole defense was insanity at the date of the killings, viz.: April 2, 1935. After testimony concern*208ing the facts of the killings, about which there is no dispute, the Commonwealth rested. Defendant produced Dr. Irving J. Spear, a psychiatrist and neurologist, who had testified before the lunacy commission on June 24, 1935. The doctor gave positive, affirmative testimony concerning the insanity of defendant and testified that, in his opinion, defendant was insane on the date of the killings on April 2, 1935. The Commonwealth conceded (p. 403) that the doctor was qualified to render such opinion. After reciting his professional qualifications and accomplishments, the witness testified in great detail that defendant was suffering from dementia praecox, with paranoiac tendency; that the psychosis was schizophrenia (split personality, i.e., Dr. Jekyll and Mr. Hyde); and that on April 2, 1395, defendant was mentally sick and did not know the difference between right and wrong.
With the record as above, defendant rested. The Commonwealth then, in rebuttal, called sixteen lay witnesses, all of whom testified negatively that during the period of time they knew defendant they had never noticed anything about him that would indicate to them that defendant was of unsound mind. Such evidence is admissible under Commonwealth v. Wireback, 190 Pa. 138, 42 A. 542 and Commonwealth v. Cavalier, 284 Pa. 311, 131 A. 229. Cf. Wigmore on Evidence 3rd ed., Vol. VII, sec. 1938, pp. 45, 46. It, nevertheless, is of negative character. Furthermore quantity, in law, never takes the place of quality. The weight of defendant’s sole professional witness — with his ample positive testimony — greatly exceeds that of the negative testimony of the Commonwealth’s numerous witnesses called in rebuttal. The uncontradicted medical testimony of the expert was that defendant suffered from schizophrenia, or split personality; that therefore members of defendant’s family, relatives, acquaintances, *209etc., would ordinarily be unable to detect any evidence of insanity. It follows that the negative lay opinion testimony would have but little probative value on the question of defendant’s sanity or insanity.
' The assistant district attorney vigorously and exhaustively cross-examined the doctor. He cross-examined concerning the doctor’s knowledge of the personnel of the staff at the Farview Hospital. The necessary inference was a criticism of the doctor’s failure to make inquiry and secure records at the hospital. It seems curious that while ■ the Commonwealth called sixteen lay witnesses to re\ut the expert scientific testimony of an admittedly qualified physician, it failed to secure from the hospital the authenticated records of that institution, buttressed by professional opinions of qualified staff physicians or other medical experts, concerning the mental condition of a patient (at the time of the killings and thereafter) who had been committed to that- institution in 1935 and who had remained as a patient in such state institution for the criminal insane for a period of fourteen years.
It is axiomatic that a verdict not warranted by the evidence will be set aside. Whether the evidence is insufficient to support the verdict is a question of law for the court. A verdict contrary to the weight of the evidence or shocking to judicial conscience is likewise a question of law: see host of cases cited in Vol. 6, sections 77 and 78, in Standard Pennsylvania Practice p. 317 et seq.
I regard as trial error the admission of the Commonwealth’s evidence óf the gruesome photographs of the bodies of the dead victims, exhibits X7-8-9. Number 7 is the photograph of the semi-nude body of the mále victim. Numbers 8 and 9 are photographs of the semi-nude body of the female victim, in a bath tub, revealing -that her skull had been bashed in, and showing *210bloody matter splattered upon the body, tub and walls. These photographs were unnecessary and were clearly prejudicial to defendant. True, defendant’s counsel consented to such admission. But where the life of a defendant is at stake because of inadvertence, carelessness or ignorance of counsel, this Court will intervene to prevent an injustice. The late Chief Justice Maxey (while an Associate Justice of this Court) said in Commonwealth v. Corrie, 302 Pa. 431, 153 A. 743, p. 436: “Should a case arise where a defendant was being hurried to an undeserved doom by reason of the carelessness of his. counsel in not taking exceptions to palpable errors which offend against the fundamentals of a fair and impartial trial, the appellate courts would, without being recusant to this salutary rule, find a way to avert the injustice threatened. Some invasions of rights amount to a deprivation of that due process of law guaranteed by the federal Constitution and, in different phraseology, by the state Constitution, . . . .”
In Commonwealth v. Scott, 284 Pa. 159, 130 A. 317, we said p. 162: “No exception was taken to the charge or request that it be reduced to writing and filed of record, hence it is not properly before us for review. Impelled, however, by the gravity of the defendant’s situation, we have carefully examined the charge. . . .” See also Commonwealth v. Stowers, 363 Pa. 435, 70 A. 2d 226.
The admission in evidence, in a homicide case, of photographs of the dead victim ordinarily is a matter of discretion of the trial judge. But judicial discretion must be exercised within proper limits. Such evidence, to be admissible, must be helpful to the jury in their investigation and deliberation. The photographs must not be introduced solely to arouse the jury’s emotions. Puthermore, the reason for the admission must be carefully explained to the jury ~by the trial judge. In Com*211monwealth v. Gibbs, 366 Pa. 182, 76 A. 2d 608, Mr. Chief Justice Dew said, p. 185: “. . . several photographs of the body were introduced in evidence over defendant’s objections. It is his position that these exhibits were of no value as evidence and were introduced solely to inflame the jury. That question has been raised in numerous cases and the law in respect to inflammatory evidence has become well settled. So long as the evidence is helpful to the jury in their investigation and deliberation and not introduced solely to arouse their emotions, the trial judge may, in the exercise of his sound discretion, admit such exhibits but the reason for their admission must be carefully explained to the jury: (citing cases). In the instant case the photographs were introduced to show the position and cohdition of the body and the extent of the wounds. ... All of the exhibits were used extensively by the medical experts to illustrate their oral testimony. These were all proper purposes: (citing cases). Therefore, the trial judge did not abuse his discretion in admitting these exhibits into evidence subject to the precautionary instruction, which he gave, that the jurors were not to allow themselves to be prejudiced by them but were to consider them only for the purposes for which they were offered.” (Italics supplied)
An examination of the evidence will disclose that there was not the slightest reason why the photographs Avere helpful to the jury in their investigation and deliberation. While perhaps unintentional, the effect on the jury clearly was to arouse their emotions to the prejudice of defendant. But the fatal trial error was the failure of the trial judge to explain carefully to the jury the reason for. the admission of the photographs.
I am not at all impressed by the Commonwealth’s apprehension expressed.at argument that, in the event of the grant of a new trial and a subsequent acquittal *212because of insanity at the time of the hillings, a dangerous person might be turned loose in the community. Mr. Justice Horace Stern, while President Judge of Philadelphia Court of Common Pleas No. 2, wrote an opinion in Commonwealth v. Ritter, 13 D. & C. 285, which has been widely cited in this and other states. He demonstrated that the necessity for appropriate punishment in criminal cases is chiefly in the interest of the protection of society. The Legislature probably had this in mind when, under the Act of March 31, 1860, P. L. 427 sec. 66, as amended by the Act of April 17, 1929, P. L. 532 sec. 2, 19 PS 1351, it was enacted that where it is found that a person was insane at the time of the commission of the crime, and is acquitted because of such insanity, the court is empowered to order the defendant to be kept in strict custody so long as he shall continue to be of unsound mind. In Commonwealth v. Winter, 289 Pa. 284, 137 A. 261, this Court said, p. 296: “The only effect of the special finding of acquittal on the ground of insanity would be to authorize the court to order the defendant into custody while he continued of unsound mind. . . .”
For the foregoing reasons I would reverse the judgments and award a new trial.