Appeal from judgment of Court of Oyer and Terminer of Philadelphia County, March T., 1964, No. 1900, in case of Commonwealth of Pennsylvania v. Arthur J. Lucier.
Herbert Somerson, with him Benjamin Donolow, for appellant.
Stanley M. Shingles, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Chief Justice Bell.
The appellant, Arthur J. Lucier, convicted by a jury of murder in the second degree and sentenced to imprisonment for a term of ten to twenty years appeals from the judgment. We reverse and order a new trial.
In his charge to the jury, the trial judge stated inter alia: "In a case of this sort, it is not only my right but it is my duty to express an opinion as to the guilt or innocence of the defendant . . . ." (Emphasis added.)
"It is my opinion that there is no possible reason in this case for finding a verdict of not guilty. It is my opinion, further, that there is no basis for a finding of guilty of voluntary manslaughter . . . . It would be a miscarriage of justice if you do not find defendant guilty of murder in the first degree."
In Commonwealth v. Ott, 417 Pa. 269, 273, 207 A.2d 874 (1965), we stated: "Whether or not the learned
trial court below misconstrued its responsibility in this regard, we are firmly of the opinion that in no instance should a trial judge tell a jury that it is his duty to express an opinion that the accused is guilty. The connotations of the term "duty" in such a context are such that the jury may well conclude that a guilty verdict is the only choice they have, and thus such an instruction would effectively interfere with the jury's right to solely determine the question of guilt or innocence." (Emphasis added.)
Ott is controlling and requires the grant of a new trial in the instant case. While it is, therefore, unnecessary to reach the remaining assignments of error, we deem it expedient to discuss another portion of the trial court's instruction to the jury in order to discourage similar practices in the future.
In compliance with the jury's request, the trial court defined the penalties for voluntary manslaughter, second degree murder and first degree murder. The jury has nothing to do with the punishment of an offense, except in the single situation governed by the so-called "Split-Verdict Act," Act of December 1, 1959, P. L. 1621, amending § 701 of The Penal Code of June 24, 1939, P. L. 872, 18 P.S. § 4701. In all other instances punishment is a matter solely for the court and not for the jury to know or consider during its deliberations. While no objection was voiced by counsel when the explanation under discussion was ...