Commonwealth v. Barnak ( 1947 )

In my opinion the appellant is justly entitled to a retrial because of the manifest error contained in the trial court's plain and unretracted instruction to the jury that " . . . it will be for you, [i.e. the jury] if you are otherwise convincedof the defendant's guilt beyond a reasonable doubt, to take into consideration the defense of alibi that has been raised by the defendant."¹ (Emphasis supplied.) Obviously that instruction denied to the appellant's alibi evidence its well-recognized capacity (if believed) to engender, in connection with all the other evidence in the case, a reasonable doubt as to the defendant's guilt, even though the alibi evidence, of itself, was insufficient to establish that the defendant was elsewhere than at the scene of the crime at the time of its commission. See Commonwealth v. Mills, 350 Pa. 478, 484, 39 A.2d 572, where, incidentally, Mr. Chief Justice MAXEY also appropriately reiterated that "a trial judge's charges which are inadequate or not clear, or which tend to mislead are well recognized grounds for reversal" as had been pointedly observed in Searsv. Birbeck, 321 Pa. 375, 391, 184 A. 6 (citing cases).

The gravity of the error above indicated could hardly be greater than in a case such as the present where the objective defense consisted entirely of the alibi evidence which was by no means trifling or inconsiderable. Nor is the harmfulness of the error to be explained away on the ground that the learned trial judge correctly instructed the jury in other relevant particulars. Specifically, neither the charge as to the defendant's burden in respect of the alibi nor the repeated statements as to the Commonwealth's burden in seeking a conviction in any way extenuate for the error committed. Likewise, the trial court's specified affirmative error is none the less ground for reversal although counsel did not call it to the judge's attention timely as is required in the case of a factual error in a court's charge; and, that should be especially so upon appellate appraisal of actual error in the trial of murder indictments.

Mr. Justice DREW joins in this dissent.

¹ The charge in its entirety in this connection was as follows: "The defendant has offered another defense, what we call a positive defense, and that is the defense of alibi. An alibi, as we use it in common parlance, is an excuse that isfabricated to get ourselves out of a difficulty. In law it does not mean anything of the kind; in law it means a proof that the defendant was at some other place at the time the crime was committed and, being at some other place that he necessarily could not have been at the place where the crime was committed. If the Commonwealth has convinced you of the defendant's guilt beyond a reasonable doubt excepting for the alibi that has been set up, then the burden of proving an alibi is on the defendant. But the burden of proving an alibi is not beyond a reasonable doubt, the burden of proving an alibi is only by a fair preponderance of the evidence, and it will be for you, ifyou are otherwise convinced of the defendant's guilt beyond areasonable doubt, to take into consideration the defense ofalibi that has been raised by the defendant." (Emphasis supplied).