240 Pa. 255 | Pa. | 1913
Opinion by
The only assignments of error insisted upon in this case concern an alleged abuse of discretion by the court below.
The defendant was indicted and tried for murder; the Commonwealth pressed for a verdict of second degree and the jury rendered one of voluntary manslaughter. The deceased was hurt during the course of a bar-room altercation and died a week afterwards; it was con
The trial judge committed error in not directing the official stenographer to place upon the record the remarks of the district attorney as the court had heard and understood them; that such was the proper course to pursue is plainly indicated in our decisions. When the district attorney disagreed with counsel for the defense concerning the alleged objectionable language, the latter immediately requested the trial judge to perform his duty in this respect; and when the court declined, counsel proceeded in the appropriate way to protect the prisoner’s interests and secure a review: See Com. v. Weber, 167 Pa. 153; Holden v. Pennsylvania Railroad Co., 169 Pa. 1; Com. v. Windish, 176 Pa. 167; Com. v. Shields, 50 Pa. Superior Ct. 1, 23.
No matter what version we may accept, the remarks of the district attorney were highly objectionable and likely to prove prejudicial to the defendant. “It is error for counsel......to state......his own knowledge of facts unless he has testified thereto as a witness...... or to insinuate that he has knowledge of facts which are calculated to prejudice the opposite party”: 38 Cyc. 1496. “The district attorney is a quasi-judicial officer; he represents the Commonwealth, and the Commonwealth demands no victims. It seeks justice only, equal and impartial justice......; hence, he should act impartially. He should present the Commonwealth’s case fairly, and should not press upon the jury any deductions......that are not strictly legitimate. When he exceeds this limit......he is no longer an impartial officer”: Com. v. Nicely, 130 Pa. 261, 270, approved in Com. v. Bubnis, 197 Pa. 542, 550. Also see Com. v. Polichinus, 229 Pa. 311, 314; Com. v. Green, 233 Pa. 291; Com. v. Swartz, 37 Pa. Superior Ct. 507, 511. As
The court’s instructions, in relation to the objectionable language of the district attorney, are so vague and indefinite, one cannot say with.any degree of certainty that the jury must have understood their application or that, they cured the harm complained of. If the trial judge thought the . remarks harmless, he should have placed his understanding of the language used upon the record; he then could have refused the motion of counsel for the defense and granted an exception, and on appeal we would have passed upon, his exercise of discretion accepting the version of the occurrence stated or approved by him. While n,o. doubt the trial judge intended to administer impartial.justice, yet upon,the light furnished by the present record we cannot but feel that the ruling assigned for error,shows a misuse of judicial discretion which in law amounts to an abuse thereof (Com. v. Cook, supra, p. 5.98).
The first and, second assignments are .sustained, and the judgment is reversed with a, venire facias de.novo.
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