Dissenting Opinion by
Mk. Justice McBride:I cannot agree that the opinion of the Court, or any of the observations contained therein, were either artless or almost naive. Nevertheless, in all other respects I join the reasoning and the conclusion in the dissenting opinion of Justice Musmanno. I need add only a few words on my own.
I have examined the record in Commonwealth v. Tenbroeck, 265 Pa. 251, 108 Atl. 635, cited in the majority opinion, and was shocked to find that at the time it was written it would support the present majority opinion. Indeed, the coercion there was infinitely worse than the coercion here. It must be pointed out, however, that (1) this Court was con*214vinced that the verdict should have been murder of the first degree rather than second degree, which the jury found; (2) the case was decided 41 years ago when accommodations for jurors (particularly for females) were far less civilized than they are now; and (3) during the trial the jurors had been permitted to separate, no hotel accommodations having been provided for them. It seems to me that the legislature has, in effect, invalidated the Tenbroeclc decision.
As recently as the Act of August 9, 1955, P. L. 323, §2336, which is applicable, inter alia, to Dauphin County, cited in the majority opinion, shows the legislative intent that women jurors, on a jury which is unable to agree on a verdict “upon the day in which the case was placed in their hands”, shall for their comfort and convenience have rooms “equipped with mirrors, toilets, beds and other conveniences.” This jury was composed of 10 women and 2 men. Conceding that the jurors did not specifically ask for what the legislature required to be available for them “upon order of the court”, it is, in any event, clear that counsel for defendant, at 3 a.m., specifically requested that the jury’s deliberations be interrupted to give them rest. The question therefore is whether it was an abuse of discretion for the court, in the present case, to fail or refuse to do what it had power to do. And it is not without significance that this happened in the Capitol of the Commonwealth, not in some obscure place where criminal trials are rare.
I believe that the decision whether the court below abused its discretion is akin to the principles that govern in applying the doctrine of harmless error. It is just as necessary that we do not find an abuse of discretion where the decision of the court below was reasonable, even though we disagree with it, as that we should not reverse a lower court for error where we are satisfied that it was harmless. The application of *215either of these principles, however, is not a ritualistic or dogmatic formula which necessarily depends upon whether the case, apart from the alleged abuse or error, warrants conviction.
In Commonwealth v. Blose, 160 Pa. Superior Ct. 165, 50 A. 2d 742, the Superior Court adopted the view as to harmless error stated by the Supreme Court of the United States in Kotteakos v. United States, 328 U. S. 750, 66 S. Ct. 1239, 1248, where it was said: “If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.”
Of course, one can never tell with certainty whether compelling the jury to continue its deliberations, as the court below did, was prejudicial to the defendant or favorable to her. In this case, however, although I am convinced that the evidence could possibly have warranted a finding greater than voluntary manslaughter, it does not seem to me that such a verdict would have been either likely or just. The real issue was not between murder and manslaughter but between manslaughter and Not Guilty. The situation is much different than in Tenbroeck, supra. In this case, after a review of the record, I am left with the unrelievable impression that the jury was coerced by fatigue and that this coercion did prejudice defendant.