Summary
In Commonwealth v. O'Brien, 312 Pa. 543, 168 A. 244 (1933), in which the defendant was convicted of bribery, the lower court misquoted the words attributed by a witness to the defendant.
Summary of this case from Commonwealth v. CrawfordOpinion
April 21, 1933.
September 25, 1933.
Criminal law — Trial — Charge of court — Reference to testimony — Variance.
1. Where, upon the trial of an indictment charging bribery, there is a substantial variance between the testimony of a witness and the account thereof given by the trial judge in his charge, the effect of which is to remove from the consideration of the jury material testimony favorable to the defendant, the interests of the defendant are so prejudiced as to deprive him of a fair and impartial trial. [544-6]
Trial — Practice — Charge of the court — Failure to except.
2. A defendant is not to be deprived of his liberty and reputation because of the inadvertence of a trial judge, or the carelessness of his counsel in failing to call the attention of the trial court to palpable error which offends against the fundamentals of a fair and impartial trial. [546]
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, DREW and LINN, JJ.
Appeal, No. 35, May T., 1933, by defendant, from order of Superior Court, March T., 1933, No. 18, affirming the judgment and sentence of Q. S., Dauphin Co., March Sessions, 1932, No. 165, in case of Commonwealth v. George O'Brien. Judgment reversed and venire facias de novo awarded.
Indictment for bribery. Before WICKERSHAM, J.
The opinion of the Supreme Court states the facts.
Verdict of guilty of attempt to bribe, upon which judgment and sentence were passed. Defendant appealed to the Superior Court which affirmed judgment and sentence. Defendant appealed.
Error assigned, inter alia, was refusal of defendant's motion for directed verdict, quoting record.
Charles Edwin Fox, of Fox, Rothschild, O'Brien Frankel, with him Caldwell, Fox Stoner, for appellant.
Carl B. Shelley, Assistant District Attorney, with him Karl E. Richards, District Attorney, for appellee.
Argued April 21, 1933.
Defendant, George O'Brien, was indicted under section 48 of the Criminal Code of March 31, 1860, P. L. 382, for bribery, the indictment charging that he had offered and promised to give Richard J. Beamish, the Secretary of the Commonwealth, the sum of $20,000 to influence his decision in awarding a contract for the purchase of voting machines for the City of Philadelphia. The jury found him "guilty of attempt to bribe." His motion in arrest of judgment and for a new trial having been overruled, he was sentenced to pay a fine of $5,000 and undergo imprisonment for not more than a year nor less than six months. From the order of the Superior Court affirming the judgment and sentence, this court, on defendant's petition, allowed an appeal.
The facts of the case are stated fully in the opinion of the Superior Court, 107 Pa. Super. 569. It is unnecessary for us to restate them here, inasmuch as we are of opinion that serious and fundamental error in the charge to the jury requires that a new trial be granted. Mr. Beamish, upon whose testimony the case of the Commonwealth depended, testified that defendant, in an interview with him in his office, had said to him, "There will be a nice present in it for you, if the Shoup Machine gets the award," and "There will be $20,000 in it for you if the Shoup Company gets the award." In reviewing this testimony in his charge, the learned trial judge told the jury that Mr. Beamish had said that the defendant "said that he would give him $20,000, or the Shoup Company would give him $20,000 if he would award the contract to that company." This variance between the testimony of the witness and the judge's account of it was of such nature as seriously to prejudice the interests of the defendant and deprive him of a fair trial. The gravity of the variance is manifest. It had the effect, if the jury accepted the version of the trial judge, of entirely removing from their consideration the uncontroverted testimony in the case which showed that defendant, at the time he talked with Mr. Beamish, had been unable to find any work for more than a year, was entirely without means, and had no connection whatever with the Shoup Company. Mr. Beamish's own testimony shows that the defendant informed him of these facts at the time he had his talk with him. If they were true, since defendant had positively denied that he had made an offer of any kind to Mr. Beamish, it certainly was for the jury to determine the probability of whether a man in defendant's indigent situation, without any connection whatever with the Shoup Company, could or would have offered a $20,000 bribe. The probable effect of the statement of the learned trial judge was to withdraw from the jury all consideration of this very material testimony, which was presented to show the improbability of defendant's having made such an offer. While doubtless inadvertent, this serious error had the effect of depriving the defendant of a fair trial.
The Superior Court noted this variance and called attention to the desirability of a trial judge adhering to "the exact words alleged to have been employed by the defendant," but declined to reverse the case on that ground because defendant's counsel had taken no exception to the charge. In this we believe that learned court erred. A man is not to be deprived of his liberty and reputation because of the inadvertence of a trial judge or the carelessness of his counsel in failing to call the attention of the trial court to palpable error which offends against the fundamentals of a fair and impartial trial.
Judgment reversed and a venire facias de novo awarded.