Stull v. Johnson ( 1915 )

Opinion by

Oklady, J.,

The single assignment of error is to the remarks of the trial judge in his charge to the jury in 'commenting on the testimony of one of the witnesses, viz: “There occurred in this case one of the most marvelous things that we have ever experienced, namely, that a father would go upon the witness stand and testify that his two-grown daughters — now women and mothers of children —are of such bad repute for truthfulness that he would not believe them on oath. We do not believe that any man on this jury has ever witnessed such a thing. It is quite a common thing for people to quarrel and for people to testify to each other’s reputation for truth and veracity, but when a father is called upon it is a problem for you to determine whether it was from a conscientious duty, or because of some feeling of enmity toward his children.” It must be conceded that such a spectacle as here indicated is so unusual as to challenge at once the attention of the jury, and the fairness of mind of so exceptional a parent. The causes leading to such a mental attitude were not developed, and it was not improper to have the jury gravely consider the testimony of so extraordinary a witness. The trial judge did not mislead or attempt to control the jury; he made no misstatement of an evidential fact, but fairly left the credibility of this witness to the consideration of the jury. In certain cases, it becomes the duty of the judge to express his opinion, so long as this is done in a manner which does not withdraw from the jury its right to consider, and decide under all the evidence. Commonwealth v. Martin, 34 Pa. Superior Ct. 451. And there may be, without error, a rather strong intimation of the opinion of the court upon certain facts when the case is left fully and clearly to the jury: Fitzpatrick v. Traction Co., 206 Pa. 335, and refer to the lack of credibility of the testimony of a witness. Gender v. Bachman, 8 Pa. Superior Ct. 405; Com. v. Schults, 221 Pa. 466. The incident was unprecedented, and the remark of the trial judge but emphasized the importance of weighing the testimony of both father and daughter.

There was no reversible error in the manner of submitting the question in controversy, and the judgment is affirmed.