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COMMONWEALTH v. OTT (03/16/65)

decided: March 16, 1965.

COMMONWEALTH
v.
OTT, APPELLANT



Appeal from judgment of sentence of Court of Oyer and Terminer of Philadelphia County, Jan. T., 1963, No. 1704, in case of Commonwealth of Pennsylvania v. Russell John Ott.

COUNSEL

George Levering Arnhold, with him Harry R. Back, for appellant.

William H. Wolf, Jr., Assistant District Attorney, with him Joseph M. Smith, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts concurs in the result and is of the opinion that it is undesirable, unnecessary and unfair to allow the trial judge to inform the jury that in his opinion the defendant is guilty. Mr. Justice Musmanno joins in this view. Mr. Justice Cohen dissents. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Eagen

[ 417 Pa. Page 270]

Russell John Ott was convicted by a jury of murder in the first degree. The case was tried under the so-called Split-Verdict Act of December 1, 1959, P. L. 1621, § 1, 18 P.S. § 4701, and after the jury failed to agree upon the punishment to be imposed, it was discharged.

[ 417 Pa. Page 271]

A new trial was denied and Ott was sentenced to imprisonment for life. From this judgment the present appeal was filed.

The prime question for decision is whether or not the learned trial judge erred in charging the jury that in his opinion the defendant was guilty and it was his duty to tell them so. We are impelled to the conclusion that he did, and that sufficient prejudice resulted which renders a new trial mandatory.

The pertinent portion of the instructions to the jury was as follows: "Now, I am about to make a comment, members of the jury. And my comment is that I am of the opinion that this defendant is guilty. But please understand, members of the jury, that it's my duty and it's my right to make a comment, under the law of Pennsylvania. But it's also my duty to say to the jury when I make that comment that you don't have to agree with me, that it's entirely, completely, finally for you to say what the verdict shall be: guilty of murder in the first degree, not guilty of murder in the first degree; guilty of murder in the second degree, not guilty of murder in the second degree; not guilty. You may find one of those three verdicts. That is entirely for you."*fn1

At least as early as the year 1885, this Court ruled that the trial judge in a criminal case may express an opinion to the jury on the weight and effect of the evidence, provided that such comment does not amount to a binding instruction, and moreover, is warranted by the evidence: McClain v. Commonwealth, 110 Pa. 263, 1 A. 45 (1885). This principle of law has been consistently followed ever since. See, e.g., Commonwealth v. Cunningham, 232 Pa. 609, 81 A. 711 (1911); Commonwealth v. Weston, 297 Pa. 382, 147 A. 79 (1929); Commonwealth v. Chambers, 367 Pa. 159,

[ 417 Pa. Page 27279]

A.2d 201 (1951); and, Commonwealth v. Romano, 392 Pa. 632, 141 ...


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