48 Pa. Super. 56 | Pa. Super. Ct. | 1911
Opinion by
The defendant was indicted under a charge of felonious rape. The verdict returned by the jury, was not guilty of felonious rape, but guilty of an attempt to commit felonious rape.
The defense offered to this charge was an alibi. Several prominent citizens testified to the character of the defendant, as to his general reputation, and that he had enjoyed a reputation for peace and good order in the community for many years. While there was no special request for instruction on this point, the learned judge stated in his general charge as follows: “A man may have a good reputation, and yet commit a crime. Evidence of good reputation would not amount to much, if you were satisfied, beyond a reasonable doubt from the evidence, apart from that, that this is the man who committed the assault. Evidence of good reputation may have very great weight with you if evidence of the facts are not as clear as you might like to have them.”
This is in substance what the trial judge stated to the jury in Com. v. Sayars, 21 Pa. Superior Ct. 75, viz.: “Good character should be considered in a doubtful case, or in a case where, after summing up all the testimony carefully, the jury are in an equilibrium, or almost balanced.” To say that proof of good character is only available under such circumstances, is to say that it is of no substantial account whatever. Where the commonwealth has clearly and indubitably established the defendant’s guilt, good character is of no avail as a defense, but in such event,
At the conclusion of his charge the learned trial judge said, “I have written out the form of verdict which you may render, one or the other, whichever one you may think the evidence justifies. It is either one or the other of the two forms of verdict which I will send out with
Under proper instructions it was for the jury alone to say what the intention of the defendant was, even if they found him guilty of an assault. As stated in Com. v. Chapler, 228 Pa. 630, “It is not only the right of the jury to ascertain the degree, but it is the right, of the accused-to have it ascertained by the jury, and a judge takes away one of the statutory rights of the accused when he undertakes to ascertain it himself.”
It may well be that jurors would sometimes be relieved of much anxiety, if the trial judge would specifically direct them as to the form of verdict they should return, but it is better that jurors, in every case, should suffer some slight inconvenience and discomfort, rather than that countenance should be given to a practice, which followed to its logical result, would destroy one of the- safeguards of the accused, which reason and experience combine to show is of the highest value. It has been well said of another constitutional guaranty, and may be said as appropriate here, “It is the capability of abuse, and not
For the reasons above given, the judgment is reversed and a venire facias de novo awarded.