34 Pa. Super. 451 | Pa. | 1907
Opinion by
All of the assignments of error relate to the charge of the court the objections to which may be briefly stated as follows: (1) The trial judge commented upon the testimony of one of the witnesses for the commonwealth as being “ unchallenged,” “ uncontradicted,” “ undisputed ; ” (2) ' the probable consequences of a conviction were discussed; (3) the supplementary instructions to the jury amounted to coercion; (4) the charge as a whole was biased and unfair to the defendant. One of the principal witnesses for the commonwealth was Milholland. It would appear from the charge of the court that an attempt had been made to show, by argument of counsel or by suggestion in the course of the trial, that this witness represented interests antagonistic to the railroad company which ivas seeking a franchise from the city councils and with reference to this subject the court instructed the jury that Milholland was not on trial except so far as his credibility was involved; that in determining the weight to be given to his evidence they should consider the fact that he was engaged in the same business of which the defendant was accused — in other words, that to a certain extent he was an accomplice. In that connection the court said that in passing on his credibility they should consider the fact that every statement he gave as a witness was unchallenged; that he was not contradicted by any testimony offered upon the witness stand. The words, “unchallenged,” “ uncontradicted ” and “ undisputed ” were used in the same sense and indicated that no one had been called who contradicted the testimony of the witness. His evidence was strongly corroborated in its material parts and the commomwealth’s case did not wholly depend upon his testimony. After directing the attention of the jury to the allegations of the
We do not find anything in the charge to justify the criticism that it discussed the probable consequences of a conviction. The remarks of the court were in response to a suggestion of one of the members of the jury that some of them “ would like to know regarding the penalty.” The jurors were promptly informed that they had nothing to do with the penalty; that that was a matter for the court exclusively; that they should not consider it or enter into a discussion on that subject, but that any recommendation of mercy or severity would be considered. Com. v. Switzer, 134 Pa. 383, cited by the appellant, is very different in its facts from the case under consideration. The court there informed the jury what the sentence would probably be in case of a conviction and it was this putting before the jury of the probable action of the court which was said by the Supreme Court to be unfortunate.
The light of the court to express its opinion respecting the evidence where this is done without misleading or controlling the jury in the disposition of the ease is shown by many cases. In Johnston v. Com., 85 Pa. 54, there was a strong expression of opinion of the guilt of the defendant. In Kilpatrick v. Com., 31 Pa. 198, it was said: “ A judge may rightfully express his opinion respecting the evidence and it may sometimes be his duty to do so, yet not so as to withdraw it from the consideration and decision of the jury.” To the same effect are : Leibig v. Steiner, 94 Pa. 466; Spear v. R. R. Co., 119 Pa. 61; Baltimore & Potomac R. R. v. Fifth Baptist Church, 137 U. S. 568 ; Simmons v. U. S., 142 U. S. 148; Doyle v. Ry. Co., 147 U. S. 413. There was here, however, no expression of opinion as to the guilt or innocence of the defendant. That question was wholly committed to the jury. The authority of a
The charge does not appear to us to be obnoxious to the criticism of unfairness. That it dealt largely with the evidence for the commonwealth was a result of the fact that all of the evidence of facts bearing on the charge against the defendant was offered by the commonwealth. If the trial judge reviewed the evidence at all he necessarily devoted his attention principally to the commonwealth’s side. The attention of the jury was called, however, to the evidence offered for the defense and its relevancy and importance was clearly stated. Taking the whole evidence into consideration the defendant has no just cause to allege that the case was not fairly presented to the jury.
The assignments of error are overruled, the judgment is affirmed and the record remitted to tlie court below to the end that the sentence may be carried into execution.