Commonwealth v. Wilmer

Dissenting Opinion by

Hoffman, J.:

The act of rape constitutes one of the most heinous crimes known to man. It is condemned and reviled in every civilized society. Conviction of this crime sub*113jects the accused to a lifetime of opprobrium and disgrace. The very seriousness of this crime requires, therefore, that the utmost caution be exercised in assuring that the convicted man is in fact guilty.

In the instant case police testified that the victim was bleeding profusely from her eyes, nose and mouth. Her clothes were “soaked” with blood. One police officer testified, however, that to the best of his recollection, he found no bloodstains on defendant’s clothing.

It is with this evidence that the jury left the courtroom for deliberation at 4:38 p.m. and returned at 5:51 p.m. In their lengthy colloquy with the trial judge, which is contained in footnote one of the majority opinion, four jurors asked for further evidence with respect to defendant’s clothing. The jury was clearly concerned with whether the clothing would disclose a seminal discharge or other stains which would prove that defendant actually had sexual intercourse with the victim. Notwithstanding the jury’s hesitancy, the trial judge stated to the jury that they should not consider this point. He told the jury that the pants could be of no evidentiary value and would not aid them in reaching a conclusion on guilt or innocence. Repeatedly, he stated that the jury had sufficient evidence without the trousers to find defendant guilty beyond a reasonable doubt. He actively sought to dispel any doubt which arose from the fact that defendant’s clothing apparently did not bear signs of blood or seminal discharge on it. By so doing he improperly withdrew from the jury’s consideration a factor which was clearly disturbing them greatly.

This colloquy sufficiently demonstrates to me that the judge usurped the fact-finding function of the jury. For this reason, I would grant a new trial.

Spaulding, J., joins in this dissenting opinion.