I dissent. I would grant appellants a new trial. If there were nothing more in the case, the charge of the court requires a reversal of the judgments and a new trial. As a whole, the charge is inadequate and insufficient, and in parts there is fundamental error. Appellants were indicted and tried for a felony, and the charge should be commensurate with the seriousness of the crime. In the first place, in the majority opinion, the construction given to the charge of the court is an untenable interpretation of a basic error, and the plain and common meaning conveyed by the charge is ignored. A jury cannot be expected to make any such grammatical analysis of a charge as that contained in the majority opinion. In charging the jury the trial judge said: ". . . . . . Mrs. Berman, took an affidavit before Magistrate O'Hara that Mr. Stupp had assaulted her, had struck her and committed assault and battery upon her. The affidavit is not here. We do not know exactly the wording of that affidavit, but we can easily imagine it from the testimony that has been given. At any rate, there was an affidavit taken that Mr. Stupp had committed assault and battery upon her on that *Page 428 night, October 27, 1939. That affidavit was taken the next day and a hearing was had before the magistrate on November 3. . . . . . . Did these three defendants, or any one of them, wilfully and deliberately make a false affidavit for the purpose of having Mr. Stupp arrested? If they did that, then they are guilty of this crime of perjury." I think the jurors, or any other reasonable person, would understand by that statement that if any one of the defendants made a false affidavit all were guilty of the crime of perjury. But the appellants made no such affidavit. The affidavit for warrant was made by Lena Berman. Appellants were separately indicted for appearing as witnesses and testifying falsely before the magistrate at the preliminary hearing. Their pleas put in issue the facts averred in the indictments. The charge was not responsive to the indictments and misstated the issues.
It cannot be said that such error in the charge was harmless when, if the jury accepted what the court clearly said, the verdicts were improper. It is not our function to rewrite an erroneous and prejudicial charge in a criminal case.
The charge is also insufficient as it relates to the burden of proof. This alone would probably not be ground for reversal in the absence of a request for further explanation. See Com. v.Robinson, 148 Pa. Super. 61, 65, 66, 24 A.2d 694. However, it is an element which discloses the insufficiency of the charge in its entirety.
The trial judge should also have adequately defined perjury (section 322 of the Penal Code of 1939, P.L. 872, 18 Pa.C.S.A. § 4322), explained the elements which constitute that crime, and described the proof required to sustain it. Certainly, the charge of the court as to the making of false affidavits for the purpose of having Mr. Stupp arrested has nothing to do with the fact alleged as falsely sworn by appellants as witnesses before *Page 429 the magistrate, and consequently it failed to clarify the issues so that the jury could comprehend the questions they were to decide. In Sears v. Birbeck, 321 Pa. 375, 383, 184 A. 6, in an opinion by Mr. Justice (now Chief Justice) MAXEY, the Supreme Court said that this is a primary duty of a trial judge, a duty that must never be ignored.
There was no record of the testimony before the magistrate. It is significant that at appellants' trial the magistrate was called by the Commonwealth, and testified: "Q. Do you recall what testimony was given to you by the defendants, David Glickstein, Benjamin Glickstein, and Lena Berman? A. I do not. Q. You have no recollection of that now? A. No recollection. Q. Were there any notes of testimony taken at that time, sir? A. Not to my knowledge." In this case careful scrutiny should have been given to the oral testimony upon which the convictions for having testified falsely under oath in a judicial proceeding are based, there being an absence of authoritative or record proof of the averment in the indictments as to what constituted such alleged false testimony.
The inadequacy and the insufficiency of the charge are so obvious that further discussion of the case is probably not required. But there is another aspect of this case which I feel cannot be ignored. At least, it is contrary to my conception of what is essential to the impartial administration of justice. The prosecutor was a detective in the office of the district attorney (it was so stated at the oral argument and in appellants' brief) and a committeeman for a political party. The district attorney's office is in the unenviable position of having prosecuted these appellants on behalf of an attache of its own office who was interested in a matter in which he was involved as a result of his political activities. It is only necessary to refer to the fact that a district attorney is a quasi judicial officer. *Page 430 "He represents the commonwealth, and the commonwealth demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers, as it is to see that no guilty man escapes. Hence, he should act impartially": Com. v. Nicely, 130 Pa. 261, at page 270, 18 A. 737, at page 738. Cf. Com. ex rel. Minerd etal. v. Margiotti, 325 Pa. 17, 188 A. 524. No public prosecutor such as a district attorney should be involved in a case in which he may have a direct or indirect interest. In such event a special prosecutor should be appointed; this has frequently been done. Although here he may not be a heated partisan he certainly could not act impartially.
I do not agree with the majority opinion where it holds that the rulings of the trial judge on admissibility of evidence were only harmless error. Appellants were precluded by the rulings of the trial judge from showing the interest and bias of the witnesses. In this case I think that is substantial error. The majority opinion is inconsistent when it states "The statement of the trial judge, referring in the charge to the commonwealth's case, that `as far as we know, the witnesses have no interest in this proceeding at all' is not at variance with the record" while conceding that the trial judge erred in sustaining the objections to the cross-examination of the witnesses as to their political affiliations with the prosecutor. Certainly, there could be no evidence of interest when examination for the purpose of eliciting that fact had been denied.
It may not be amiss to refer to the circumstances surrounding the failure of Mrs. Berman to press her charge against Stupp before the grand jury. In his charge the trial judge said: "Then afterwards, for some reason or other, they did not prosecute the matter before the grand jury and the matter was dropped there." In the majority opinion it is said: "The prosecution *Page 431 was dropped at the suggestion of Lena Berman when it came before the grand jury." Neither of these statements is entirely accurate. Both Mrs. Berman and Samuel Glickstein testified that she had agreed to withdraw her prosecution of Stupp if Stupp would withdraw the charges he had made against her and these appellants. From the testimony of Samuel Glickstein (100a) it would appear that this settlement of their differences was initiated by Stupp himself. It is somewhat significant that none of this testimony is contradicted by Stupp or any other witness for the Commonwealth.
In my judgment appellants have not been accorded the recognized safeguards which are essential to criminal justice.