concurring.
I agree with the majority that appellant is entitled to a new trial because one accused of criminal homicide is entitled to an instruction on involuntary manslaughter, if requested, whether or not there is any “rational basis” in the mind of the trial judge for such a verdict.
To refuse to hold that it is error not to instruct on involuntary manslaughter, even in a case where there is no “rational basis” upon which the jury could return such a verdict sets the stage for the same issue which confronted this Court previously concerning voluntary manslaughter.
The problem in the voluntary manslaughter area began when a jury returned a verdict of voluntary manslaughter even though there had been no charge as to voluntary *448manslaughter. We were then confronted with the issue of whether to accept the voluntary manslaughter verdict (for which there had not been a charge) or refuse to accept the voluntary manslaughter verdict as valid. If the voluntary manslaughter verdict had not been accepted, the Court, of necessity, would have had to enter a verdict of acquittal overruling the jury’s verdict of guilty of voluntary manslaughter. This Court refused to ignore the voluntary manslaughter verdict under such circumstances, and held that it was within the authority of the jury to return such a verdict, even though the jury had not been instructed on voluntary manslaughter.
What happens when jurors return a verdict of involuntary manslaughter, even though they have not been charged on that crime, because in their wisdom they believe that a lesser degree of guilt is involved in the case? This Court will then have to decide, as it once did in the voluntary manslaughter area, whether to accept the involuntary manslaughter verdict as valid, even though the jury was not charged on the crime, or to refuse to accept the jury’s verdict and enter a verdict of acquittal.
The proper justice in a given case frequently involves close questions. I do not understand why judges or justices assume that they, rather than juries, can best resolve the close questions. We should eliminate artificial limitations on a jury’s deliberations. The jury should be charged on involuntary manslaughter in all cases of criminal homicide. If in its wisdom a jury decides that involuntary manslaughter is a proper verdict, a judge should not disturb that verdict. There is no reason to fear that juries will irrationally return an involuntary manslaughter verdict in cases where there is no basis of any kind for such a verdict. The jury may, however, out of superior reasoning or compassion, disagree with the trial judge and bring in a verdict of involuntary manslaughter even though there is no “rational basis” in the court’s mind for such a verdict.
In such close cases, I prefer the wisdom of twelve persons to that of a single judge. The ultimate justice of a given *449case is more properly the prerogative of a jury than of a judge.