Dissenting Opinion by
Keller, J.,I regret that I cannot concur in the opinion of the court filed in this case.
In his charge, the learned trial judge told the jury that the question of time was the important fact for them to determine and elaborated at length on the subject so as to lead the jury to understand that if, notwithstanding the printed terms on the pawn ticket, the defendant had agreed to give the prosecutrix six months in which to redeem the property pawned he was guilty, while if the time limit was only until September 1st, he was not guilty. The important fact to be determined by the jury was the fraudulent intent of the defendant in selling the pawned goods, and while the time of the pledge was an element in determining the fraud, it was not absolutely controlling, and the guilt or innocence of the defendant did not depend on the jury’s determination of that fact.
So also, in his instructions as to reasonable doubt, the trial judge clearly was confused and in error. He told the jury, it is true, that the defendant was presumed to be innocent and that it was incumbent upon the Commonwealth to prove to their satisfaction and beyond a reasonable doubt that the defendant was guilty, but he immediately went on to explain what was meant by reasonable doubt, as follows: “If in your own business transactions you would be convinced, beyond any doubt, of the truthfulness of the statement of the defendant, then that would be such a doubt as should cause you to hesitate to convict and you must give the defendant the benefit of that doubt and acquit him.” This explanation was directly contrary to the law, and required the defendant to convince the jury of the truthfulness of his testimony, beyond any doubt, before they could acquit him. In my judgment the error was not sufficiently corrected in the rest of the charge.
I would sustain the sixth and ninth assignments of error and award a new trial.
Porter, J., concurs in this dissent.