Dissenting Opinion by
Mb. Justice Cohen:Defendant was tried under an indictment for murder. Under such an indictment, it is error for the trial judge not to give a charge on voluntary manslaughter.
It has long been the law of Pennsylvania that even if there is no evidence of manslaughter, the jury may award such a verdict. In Commonwealth v. McMurray, 198 Pa. 51, 47 Atl. 952 (1901), we said at page 60: “The facts as stated by defendant conclusively negatived all idea of manslaughter, and there was no evidence on which counsel could found any claim that the jury had the right (though they might have the power) to render such a verdict.” (Emphasis supplied).
How is a jury able to exercise its power when it is never advised that it has such power? While it is true that this Court has said that where there is no evidence whatever of manslaughter it need not be charged (Commonwealth v. McMurray, supra), that rule has led to an arbitrary justice where there is a murder indictment without facts showing manslaughter, since trial judges have capriciously chosen to charge the doctrine or not. Compare Commonwealth v. Yeager, 329 Pa. 81, 196 Atl. 827 (1938) with Commonwealth v. Robinson, 305 Pa. 302, 157 Atl. 689 (1931). In the latter case, this Court found no error in a charge which told the jury (1) the elements of manslaughter, (2) that there was no evidence of the crime, and (3) that they still had it in their power to *578find manslaughter. Such a charge ought to have been included here.
There is another reason why a new trial ought to be given in this case. Our recent decisions in Commonwealth v. Frazier (411 Pa. 195, 191 A. 2d 369 (1963) and 420 Pa. 209, 216 A. 2d 337 (1966)) have had the effect of making voluntary manslaughter a lesser offense to murder. In Frazier I, defendant was tried on an indictment of murder and convicted of voluntary manslaughter even though the evidence showed murder and did not show manslaughter. As a result of trial error judgment was reversed and a new trial was awarded. Having been acquitted of murder, Frazier was indicted for manslaughter. At trial he demurred to the evidence, saying that the facts did not make out the crime of manslaughter. This Court, in Frazier II, reversed the grant of the demurrer by the lower court and held that one may be indicted for manslaughter and convicted of voluntary manslaughter even though the evidence shows murder and does not show manslaughter. Consequently, one may be convicted of voluntary manslaughter on evidence of murder only, on either an indictment for manslaughter or for murder. Since only the indictment differs the one crime must be included within the other.
One set of facts will permit a conviction of murder or manslaughter on a murder indictment. The difference, therefore, is a matter of degree, and “the jury has the exclusive right to fix the degree of guilt. . . .” Commonwealth v. Meas, 415 Pa. 41, 45, 202 A. 2d 74, 76 (1964).
Finally, defendant argues that there was evidence which could properly be relied on by a jury to find voluntary manslaughter. One of defendant’s statements to the police, introduced to impeach him, recounted that defendant saw the victim raise the gun, that he grabbed at it, and that the shooting occurred during *579the struggle for the weapon. In Commonwealth v. Banks, 376 Pa. 531, 103 A. 2d 726 (1954), we said at page 534: “The jurors are not bound to accept the version of the Commonwealth nor that of the defendant, but must consider all the testimony and make up their minds as to what was the true situation.” I think that on these facts and on the law just stated, the charge on voluntary manslaughter was improperly withheld. This is particularly true since we have said: “[A] trial judge is not required to charge the jury on manslaughter where there is nothing in the testimony to reduce the grade of the crime below murder . . . it is only in very clear cases, where there is no room for doubt, that this can properly be done [citing cases].” (Emphasis supplied). Commonwealth v. Miller, 313 Pa. 567, 569, 170 Atl. 128 (1934).
Hence, the fair and proper administration of criminal justice requires that in every murder trial the jury be charged on the elements of voluntary manslaughter. The jury ought to be made fully aware of all the verdicts that it has the power and, indeed, the right to return.
I dissent.
Mr. Justice Jones joins in this dissenting opinion.