¶2I concur in the decision of the court, and join in its opinion except for the portion dealing with the court’s failure to instruct on voluntary manslaughter. I think that, if requested, it would have been reversible error on the part of the trial court not to charge that voluntary manslaughter was a verdict which was within the power of the jury to return, even though there was no evidence to support such a finding. See Commonwealth v. Matthews, 446 Pa. 65, 285 A. 2d 510 (1971) (dissenting opinions of Mr. Justice Roberts and of the writer); Commonwealth v. Banks, 447 Pa. 356, 364, 285 A. 2d 506 (1971) (dissenting opinion of the writer, joined by Mr. Justice Roberts) ; Commonwealth v. Davis, 449 Pa. 468, 297 A. 2d 817 (1972) decided this day (opinions of Mr. Justice Roberts and of the writer in opposition to order of affirmance); and Commonwealth v. Kenney, 449 Pa. 562, 297 A. 2d 794 (1972), decided this day (dissenting opinion of Mr. Justice Roberts, joined by the writer).
¶3Dissenting Opinion by
¶4I dissent. It was error for the trial court not to charge the jury on involuntary manslaughter. Involuntary manslaughter is defined as the killing of another without malice and unintentionally, but in the course of some unlawful act not amounting to a felony ... or negligently doing some act lawful in itself. Commonwealth v. Mayberry, 290 Pa. 195, 138 A. 686 (1927). The jury, as triers of fact, could have found that the death occurred as a result of a negligent act, since there was evidence that the fire was accidently set by the act of placing the can of gasoline too near the “hotplate”. It was within the province of the jury to either believe or disbelieve this testimony, and decide *453whether negligence was present. The court erred by taking this consideration away from the jury by instructing them not to consider involuntary manslaughter as a possible verdict.
¶5The trial court also improperly deprived the defendant of a jury trial on the issue of malice which is a necessary element of murder and must always be decided by the jury. See Commonwealth v. Yuknavich 448 Pa. 502, 295 A. 2d 290 (1972) (concurring opinion by Justice Manderino ).