Commonwealth v. Raymond

Dissenting Opinion by

Mb. Justice Musmanno:

In his charge to the jury in this case, the trial judge said: “I think it would be a miscarriage of justice if you found this defendant not guilty, because I think in my reasoning and in my circumstances, as I have thought them out and reasoned them out, that I should and do have a right to make this comment.”

The Majority Opinion finds nothing wrong in this statement because the judge told the jury that it was up to them to decide whether the defendant was guilty or not. The Majority repeats the oft-quoted rule that: “A trial judge has every right to express his opinion as to the weight of the evidence, or even the guilt or *210 innocence of the accused, provided it is done fairly and temperately, and provided further that he leaves the ultimate decision to the jury and does not interfere with its responsibility.”

But this rule, even as stated by the Majority, carries within it a very important modification; namely, that the judge must express his opinion “fairly and temperatelyThe judge there did not express himself “fairly and temperately.” Metamorphically he held a whip over the heads of the jury. He told them that if they did not agree with him, their contrary view would amount to a “miscarriage of justice.” This kind of language, it seems to me, smacks of coercion. A juror may not mind disagreeing with a judge on factual matters but he would dislike very much placing himself in the category of a person who has participated in a miscarriage of justice, judicially proclaimed.

The crime committed by the defendant here was abhorrent and lacked a single mitigating feature. The jury did not need to be bludgeoned into doing its obvious duty. What I find regrettable about the Majority Opinion is that it will be quoted in cases where the guilt of the defendant is not so clear as it is in this case. In consequence, the principle of reasonable doubt, which has been undergoing considerable punishment during the last several decades, will soon be whimpering into the umbrageous region of the neglected, and may continue to slide until it finally disappears into the dark sea of oblivion.

The Majority says that the judge on nine occasions told the jury that they were to decide the facts. He could have told them this a hundred times but those feathery words would never whittle down the towering mountain peak of admonition that if they did not accept his conclusion they would be perpetrating a miscarriage of justice.

*211 The Majority treats all this, I say with respect, rather cavalierly and ends np with hand-dusting finality that the “assignment of error is without a semblance of merit.” I find that the assignment of error has more than a semblance of merit. In fact, it proclaims with strident voice and complaining drums that the defendant’s rights to a trial by jury, as constitutionally guaranteed, were signally violated. I am sorry that the Majority did not hear the tumult.