Frederick B. Smillie, Paul A. Davis, Margaret Corson Applegarth and Smillie, Bean & Scirica, Norristown, for appellant.
C. Howard Harry, Asst. Dist. Atty. and J. Stroud Weber, Dist. Atty., Norristown, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 172 Pa. Super. Page 608]
In what gives every indication of having been a bitterly contested trial, replete with trial errors and
[ 172 Pa. Super. Page 609]
highlighted by over-zealousness on the part of the prosecution, the defendant was found guilty of operating a motor vehicle while under the influence of intoxicating liquor. From a sentence of a fine of $200 and imprisonment for a period of six months, defendant has brought this appeal.
This is the second time he was brought to trial for the same offense. On the first trial a juror was withdrawn and the case continued because of prejudicial misconduct on the part of the Commonwealth. On the second trial the Commonwealth appears to have been determined that the defendant should not again get off so easily. Such determination evidently created the atmosphere in which the case was tried, culminating in the perhaps inadvertent, but heretofore unheard of, charge of the court that the jurors, if convinced beyond a reasonable doubt of the guilt of the defendant, ' should have no hesitancy whatsoever, as jurors in the grand, old American system, of bringing in a verdict of guilty.' (Emphasis added.)
No explanation was given by the learned trial judge in his opinion refusing a new trial as to what he meant by the instruction, and, in the absence of any explanation, speculation as to what was meant would only lead into the realm of conjecture. Suffice it that if he was referring to the 'American system' of justice, then the jury should have been instructed that a verdict of not guilty would be just as consistent with that system, if not more so. The overemphasis placed on ' bringing in a verdict of guilty ' could only be counterbalanced by a similar instruction as to bringing in a verdict of not guilty. (Emphasis added.)
'It is a primary duty of the trial judge -- a duty that must never be ignored -- in charging a jury to clarify the issues so that the jury may comprehend the questions they are to decide'. Sears v. Birbeck, 321 Pa. 375, 383,
[ 172 Pa. Super. Page 610184]
A. 6, 10. In Commonwealth v. Malone, 354 Pa. 180, at page 187, 47 A.2d 445, 449, after quoting the foregoing, the Court added: 'When the issues in either a criminal or a civil case are not clarified in the judge's charge, the charge is of very little value in the ...