Dissenting Opinion by
Mr. Justice Musmanno:Mrs. Ethel Kravitz, the defendant in this case, was found guilty of murder in the second degree on the charge of having killed her husband. The verdict was based entirely on circumstantial evidence which, the defendant contends, fell short of proving her guilty beyond a reasonable doubt.
There are indeed features in the case which might well disturb the inquiring mind as to whether justice has been done. If the transcript of the record showed that all rules of proper criminal procedure were punctiliously adhered to, and that all irrelevancies which might mislead the fact-finding tribunal were scrupulously excluded, and that the jury was instructed in words of living light as to their duties and responsi*225bill ties, one would have to say that the accused was afforded every right under the Constitution and that, therefore, the verdict must be accepted as due process of law.
Unfortunately, the transcript does not show that kind of a trial. Without intending to suggest that anyone was motivated by a thought other than seeking to achieve a just and proper verdict, I am constrained to say that the hand which held the helm allowed it occasionally to slip away and, as a consequence, the craft bearing the accused was swept into treacherous waters and finally landed on a shore which no one can say with unquestioning assurance was the proper destination.
Since there were no eyewitnesses to the killing, which was the subject of the trial, the presiding judge should have been exceptionally careful not to allow anything to come into the proceedings which might set up a false standard for the jury’s deliberations. Whether such a standard was raised depends upon an understanding of the facts which, briefly, were as follows.
On the afternoon of July 4, 1958, at 4:50 p.m., the body of Max Kravitz, with bullet wounds and many lacerations inflicted -by some instrument, was found in the marital bedroom of his home at 1250 Knox Hoad, Wynnewood, Montgomery County. Furniture, draperies, clothing and Avails of the room Avere bespattered Avith blood.
Mrs. Kravitz was in the house at the time.- There Avas no evidence as to when the fatal bullets were fired and the blows struck. In mid-afternoon of that day, a neighbor (305 feet away), Paul MacMurray, had heard the breaking of glass in the Kravitz house. ITe ran to it and, while there, heard a man’s loud voice utter three unintelligible words. He returned to his home and called the police Avho immediately appeared at the KraAdtz home and asked Mrs. Kravitz, who came to the door of the house, whether everything was all *226right. She said that everything was all right. The police left.
At 4 p.m., Mrs. Kravitz drove to the home of her sister-in-law, Mrs. Esther Passon, who lived from one-fourth to one-half a mile away, to deliver some flower pots (both families were interested in gardening) and then returned to her home with Mr. Passon, to whom she was to give some gardening implements. They came to the Kravitz home at about 4:50 p.m. It was then that the dead body was discovered.
The Commonwealth argues, in support of the verdict, that the defendant was the only one in the Kravitz house during the time that the killing occurred and •that, therefore, only she could have committed the dreadful deed. But the witnesses the Commonwealth presented did not exclude the possibility that someone else could have entered the house during the crucial hours. It was a summer’s day. The garage door was open at 2:50 p.m. The defendant was admittedly away from-the house between 4 and 4:5Q p.m. When she and Mr. Passon came to the house at the latter hour, the front door, according to Mr. Passon, was .open. In fact, when the police arrived in answer to his call, he told them; as the district attorney concedes in his brief, ■that “robbers had performed the deed.”
The Commonwealth maintains that the defendant planned to kill her husband, but produced no. evidence to substantiate this alleged intention. It did show through a witness, Mrs. Frances Robinson, that the defendant “wanted to get a' divorce.” A wife may very much desire to be permanently separated from a man she had once loved without desiring that the separation take place in a cemetery. The statistics sorrowfully announce that nearly one out of every four marriages ends in divorce. One could not say on this basis that 25% of the spouses (one or the other) engenders the desire to murder the opposing mate.
*227Mrs. Robinson also testified that she had drafted two wills for Mrs. Kravitz in which the testatrix left nothing to Max Kravitz. Here again a woman may want to disinherit her husband and yet not want to bludgeon him to death. Such a disinheriting (if factually and legally verifiable) ivould not have seriously affected Mr. Kravitz economically since he was wealthy in his own right. But what possible connection could this will-writing have with an intent to murder? Mrs. Kravitz’s will would be absolutely meaningless at the time of the death of Mr. Kravitz. Her will would be effective only when she died! And certainly there was no evidence that she would kill herself in order to spite her husband.
Mrs. Robinson also testified that Mrs. Kravitz said: “Max is simply impossible; I cannot put up with this foolishness. Now he won’t eat in the kitchen.” What Mrs. Kravitz intended to gain by her husband eating in the kitchen was not developed in the testimony but whatever that hypothetical advantage could have been to her, its lack of fulfillment could scarcely have provoked her to the extent that she would murder him in cold blood.
The Commonwealth contended that the weapon which killed Max Kravitz was a 38 calibre IT. S. revolver which was found concealed in a culvert located on the route assumed to have been traveled by Mrs. Kravitz when she went to visit the Passons. There was no evidence that this revolver1 belonged to Mrs. Kravitz, that she ever used it, or was familiar with it in any way. It reputedly belonged to the victim’s father.
The Commonwealth accepted 2:47 p.m. as the time Mr. McMurray heard the crashing of glass. Its brief *228then goes on to say: “It is inescapable that this victim did the summoning by breaking the window panes. It was when he did this that the defendant realized her horrible mistake in assuming that he was dead. It was then that she took the butt end of the revolver and smashed it over the victim’s head, and, when the gun grips broke, she then used her hand mirror to complete this wicked killing.
“This victim fell with his feet toward the window and his head toward the bed. All the blood on the rug was centered about the immediate area where his body was found. This was where he committed his final thrashings of life as he was being bludgeoned.”
But the Commonwealth admits that Mrs. Kravitz appeared at the door of her home nine minutes later, properly clothed, her hair undisheveled, and giving no evidence of having engaged in the fearful and bloody violence described. In fact, the Commonwealth was to argue later that she was “cool, calm, and collected,” to demonstrate that she was the kind of a person who could have premeditated and executed so dastardly and sanguinary a crime. But no matter how cruel and calloused a woman might be, she would not liare had time to brandish the revolver as a club, using it so many times that its grips broke, then to ply a hand mirror until it smashed, change her clothes, wash off all marks of blood, and appear in the door “cool, calm, and collected” — all in nine minutes.
The Commonwealth contends further that a blouse, some slippers and shoes belonging to her were found in the master bedroom bearing droplets of blood. But this circumstance is not evidence of guilt since Mrs. Kravitz shared the bedroom with her husband and the clothes belonging to her would normally be in that room.
The Commonwealth points out, in further support of its thesis of guilt, that although Mrs. Kravitz wept *229after the death of her husband, she never shed tears, but not every grief-stricken woman becomes a Niobe.
All these incidents, observations and coincidences relied upon by the Commonwealth could still be substantial accusatory items of guilt which would require strong evidence of exculpation on the part of the defendant, if the stream of the trial leading to an acceptable verdict had not been unintentionally diverted and unwittingly muddled by erroneous rulings on the part of the trial court.
In his opening remarks to the jury the district attorney said: “We will show you, members of the jury, that the defendant was taken to the Bryn Mawr Hospital for a blood test, and she refused to submit to a blood test.” Defendant’s counsel objected to this statement, even before it was made, anticipating what the district attorney would say, and he moved for withdrawal of a juror after it was made. The judge overruled the objection and refused the motion.
Although no evidence was presented to show that Mrs. ICravitz had refused to take a blood test, the Commonwealth never retracted its statement that she had so refused. Thus for eleven days, the duration of the trial, the jury was allowed to believe that Mrs. Eravitz, out of fear of divulging some evidence of guilt, had refused to give up a specimen of blood. The statement by the district attorney made the defendant suspect at the very beginning of the trial, and it is possible that all evidence which followed was interpreted by the jury as confirming the suspicion which was not based on any proved fact. Once a sky gazer assumes that the clouds in the celestial heights form the shape of a camel, every stray and fragmentary shred of mist in that vaulted area becomes part of the predetermined image.
The district attorney undoubtedly did not intend to take advantage of the defendant, but the fault was a *230serious one and should have been corrected by the judge at once. The judge later realized his error in not having excluded the statement, but in an attempt to correct the situation he shook the issue out of the frying pan of error into the fire of outright condemnation. When he came to charge the jury, the Judge said: “To this statement in the opening address, defense counsel took objection and at that time the trial judge overruled the objection. Later, during the trial, the trial judge refused to permit the Commonwealth to show the defendant's refusal to give a blood sample. In the opinion of the trial judge, even though the defendant refused to give a sample of her blood to the police, such a refusal is not competent evidence, against her to show a conscienceness of guilt, because of the constitutional provision that, ‘no person accused of crime, shall be compelled to be a witness or to give evidence against himself, and such provisions render incompetent all evidence incriminating the accused, which he is compelled to produce.’
“In this case, she had the privilege against self-incrimination affording her protection, which is to be construed liberally, to prevent compulsory self-incrimination. If the police or doctors took her blood by force and compulsion, such evidence would be inadmissible, and against due process of law.
“I, therefore, charge you, members of the jury, that the defendants refusal to submit to a blood typing test, if she did object, should not, and cannot, be commented upon to the defendant’s prejudice, because she had a right to refuse and no inference prejudicial to the defendant should be drawn by the jury from such alleged refusal.
“It is not to be considered by you, as evidence of conscienceness of any guilt, as she had a legal right to refuse. Therefore, please, erase from your minds, and forget the district attorney’s opening statement in this *231regard, in considering this case, and pass upon the case as if there was no statement that this defendant refused to furnish a Mood typing sample. If she did refuse, she had a legal right to do so, and she must not be prejudiced in any manner by such statement. Please, therefore, blot out and erase from your minds, this alleged request for a Mood sample to he taken from the hody of the accused. It has no place in your consideration in the case.” (Emphasis supplied.)
It will be noted here that in telling the jury that Mrs. Kravitz had the right to refuse a blood test, he practically told the jury that she in fact had refused.2 In point of realism, however, the question for the jury was not whether Mrs. Kravitz could legally decline a blood test, but whether, in fact, she did decline to take the test, for, if she refused to furnish a blood typing sample, this would show that she feared the sample would show her to be guilty. Hence this kind of a refusal could be interpreted as an admission of guilt because, if innocent, she would not fear a blood test or any test.
Let us give an illustration. Suppose the district attorney had said to the jury: “We have a confession from the defendant in which she admits committing the murder.” Let us suppose that, later on, the court ruled that the confession was inadmissible because the defendant had not been advised of her constitutional rights in the matter. 'Would any instruction by the judge to disregard the district attorney’s statement ever blot out from the minds of the jurors the proposition that the defendant had actually confessed?
Suppose the district attorney had said that the defendant refused to'look at the dead body of her hus*232band. And then suppose the trial judge had told the jury that she had the right not to look at his body and did not give the defendant an opportunity to explain why she had not looked or to say that she had in fact looked. Under those circumstances, would not the jury assume that she had refused to look at her husband out of a consciousness of guilt, or out of hatred, a hatred which had impeHed her to his destruction?
It is thus plain that the district attorney’s remark that Mrs. Kravitz refused to submit to a blood test became a stain on the robe of presumption of innocence which no exhortation on the part of the trial judge could wipe out.
The Majority of this Court supports the decision of the trial judge in this matter, but I respectfully submit that, in doing so, the Majority misses the whole point. The Majority Opinion argues at length that Mrs. Kravitz could have been compelled to submit to a blood test because, while the Constitution protects an accused from being compelled to utter words, it does not protect him from being compelled to utter blood. I do not think that this is the law, but even if it were, it has absolutely nothing to do with the issue. The damage done the defendant lay in the fact that the jury was allowed to take the district attorney’s statement that Mrs. Kravitz had refused to take the blood test as established truth and then was given no chance to refute his statement.
The trial judge’s charge on the subject of blood sampling was even more prejudicial to the defendant than already indicated. Before taking up the blood test episode, the judge said to the jury: “In seeking a motive, you may search the action, conduct and behavior of the defendant immediately before, during, and after the commission of the alleged offense, if she did it, and you may ask yourselves, whether such conduct was the conduct of an innocent or guilty person.”
*233Thus, if the jury believed that Mrs. Kravitz refused to submit to the blood test (and they could not believe otherwise because she was not allowed to refute the charge) they were allowed to believe that this refusal was the conduct of a guilty person.
In view of the fact that the Commonwealth’s case was a pyramid of circumstances with no eyewitnesses involved, the judge should have charged the jury to study the pyramid with extreme caution to determine whether it held together solidly or whether, by the simplest application of the force of logic, it would tumble to the ground of unconfirmed hypothesis. Instead of so or similarly charging, the judge practically invited the jury to guess at the solidity of the prosecution’s structure. He said: “If after going over all of the evidence, and giving it your best consideration, you do not have a reasonable doubt of the defendant’s guilt, then it is your solemn duty to convict. Please bear in mind, however, that it is not the duty and burden of the Commonwealth to prove or establish guilt beyond or beyond all possibility of doubt, or prove it to an absolute certainty, but only beyond that reasonable doubt as I have just defined that term to you.” (Emphasis supplied).
When the judge said that in order to obtain a conviction the Commonwealth did not need to prove the defendant guilty to an “absolute certainty,” he in effect said to the jury: “Before you can convict, you must be certain, but not absolutely certain.” This is like saying that “we want the truth, but not necessarily the absolute truth.” Why did the judge modify “certainty” ? When he said that the Commonwealth had the burden of proving guilt beyond a reasonable doubt, and he defined reasonable doubt, he gave the jury the proper measuring rod to use in gauging the evidence, but when he said that the Commonwealth did not need to prove *234its case to an absolute certainty, he splintered the measuring rod.
The Commonwealth was asking for a verdict of first degree murder with the death penalty. It is horrible to contemplate that in a civilized society the fact-finding tribunal would be allowed to send a person to his or her death on proof which is not absolutely certain.
The judge went further. He said: “The burden resting on the Commonwealth to prove its case beyond a reasonable doubt, does not require it to demonstrate the utter impossibility of innocence.”
This was another invitation to the jury to be satisfied with a guess. Why was it necessary to conjure up fantasies as to what the Commonwealth was not required to do? Obviously, the Commonwealth was not expected to bring in a dozen angels to testify to the guilt of the defendant, but, by everything which is just, proper, and decent, the Commonwealth was required to remove the possibility of innocence before it could dare to place a person in the electric chair, because that is what the Commonwealth was asking be done. It is appalling to think that a person may be convicted of murder while there still exists the possibility that he or she may be innocent, but that is exactly what the judge told the jury they could do.
The judge played on this theme as if it were a harpsichord. He returned to it over and over. He said: “The requirement of the law is, that in order to warrant a conviction on circumstantial evidence, the facts and circumstances proved must be of such character as to produce a moral certainty of the guilt of the accused beyond a reasonable doubt, and such as reasonably and naturally justify an inference of guilt, and are of such volume and quality as to overcome the presumption of innocence and satisfy the Jury of the accused’s guilt beyond a reasonable doubt. It does not *235require them to be absolutely incompatible with innocence.” (Emphasis supplied).
Why shouldn’t the facts and circumstances, in order to warrant a verdict of guilty in a murder case, be absolutely incompatible with innocence? The Judge’s statement in this regard would wipe out the rule of reasonable doubt. If every circumstance introduced against Mrs. Kravitz could be explained compatibly with innocence, she would be entitled to an acquittal because such equation of interpretation would inevitably raise the reasonable doubt which would entitle the defendant to an acquittal. This Court has spoken frequently in direct opposition to what the judge told the jury in this case. In the case of Commonwealth v. Benz, 318 Pa. 465, 472, we said: “When a charge of crime is sought to be sustained by circumstantial evidence, the hypothesis of guilt should flow from the facts and circumstances proved, and be consistent with them all. The evidence must be such as to exclude to a moral certainty every hypothesis but that of guilt of the offense imputed; the facts and circumstances must not only be consistent with and point to the guilt of the accused, but they must be inconsistent with his innocence.”
I submit that the trial judge in the case at bar committed another serious error. He said to the jury: “If the circumstances proved do not convince you beyond a reasonable doubt, and the Commonwealth has failed to exclude the reasonable possibility of a third person committing the deed, then you would acquit the defendant.” (Emphasis supplied).
One must corrugate his brow and think hard to grasp just what the judge meant by this involved phraseology, but if one stays with it long enough he will see that the judge was adding a condition to the reasonable doubt doctrine which, of course, he had no right to do at all. If anything in the criminal law of *236America is definite, precise, inalienable, unalterable and as immovable as the Appalachian Mountains, it is that the defendant is absolutely entitled to an acquittal if the prosecution fails to prove its case beyond a reasonable doubt. But here the judge said that if the Commonwealth failed to carry its reasonable doubt burden, that failure would still not be enough to acquit the defendant. Something else had to be established, namely, the failure “to exclude the reasonable possibility of a third person committing the deed”? What is the meaning of these words? If they seem more like the expression of a clairvoyant seeking to impress by being occult than a judicial instruction, they would be treated as mere surplusage. But, nebulous as they may be, and as unfathomable as they may seem, they still state too clearly that the defendant is to be penalized if the Commonwealth fails to do certain unknown things. Of course, such a situation is intolerable in the criminal law.
Once the Commonwealth fails to prove its case beyond a reasonable doubt that ends the trial and a verdict of acquittal is mandatory, either by the jury’s voluntary act or at the direction of the judge.
The judge seems to reveal his innermost thoughts on the case when he says in his opinion refusing a new trial: “We consider the- charge just and fair, considering that the defendant did not talce the witness stand and deny any of the Commonwealth’s evidence, but was content to rest on the alleged weakness of the Commonwealth’s circumstantial evidence.” (Emphasis supplied). But whether the defendant did or did not take the stand, she was entitled to a charge which safeguarded all her constitutional prerogatives and did not impose on her unconstitutional conditions.
The difficulty I find in affirming the verdict in this case is that we are not sure that all avenues of possible acquittal were intellectually open to the jury. The rec*237ord would seem to suggest that the judge was so fearful that the' defendant might be freed that, consciously or unconsciously, he continued throwing barriers across roads which could lead to acquittal.
Of course, it would be inevitable that the judge would come to a conclusion on his part as to whether the defendant was guilty or innocent, but he had the bounden obligation to keep that conclusion locked in his heart. Instead of doing so, however, he opened the strongbox of his heart and the secret flew out, to fly about the courtroom and eventually come to perch on the jury box rail itself. And while there, it spoke persuadingly to the jury, explaining that if there existed “a reasonable doubt of the defendant’s guilt, then the law is that the defendant should be given the benefit of that doubt and acquitted,” but that if the evidence convinced them of the defendant’s guilt, they had a “solemn duty” to convict.
Of course, it may be that the judge was merely unfortunate in choosing wrong words to convey right ideas, but the jurors, like school children eager to learn the day’s lesson, take each word pronounced by the teacher as grave and irrevocable judgment.
In outlining the evidence the judge said: “There was some evidence that the defendant told Officer Mould when he came to the front door of the Kravitz residence on July 4th, that she said ‘everything is all .right.’ That she told Captain Shaffer, and the district attorney in questioning her, after this offense, that she had used, as a route to go from her home to the Passon residence, the Sussex and Morris Avenue route.”
■ What was the “offense” the judge referred to? Did he characterize Mrs. Kravitz’ statement that “everything was all right” as an offense, or was he referring to the killing itself? If he was referring to the killing, why did he incorporate it into the midst of a state*238ment as to the route taken by Mrs. Kravitz? If she was innocent, she had committed no offense.
In speaking of the Commonwealth’s contentions the judge said to the jury: “The Commonwealth contends that there ewre no signs of any breaking or burglary at that time, between 5 p.m., w;hen the house was again examined; that all doors and windows in this home were secure; that there was nothing missing from the house; that the jewelry, wallet on the bureau, and the money were all intact within the home; that this defendant made an unexpected visit to her brother-in-law’s house, Morris Passon; that she talked on that occasion of the broken glass, and when there she telephoned to ascertain whether her husband had gone swimming or was in the home; that she requested Morris Passon to come to their home for some small gift, so that he could be there when the body was found.”
It will be noted that here the judge enumerated many items of tangible and demonstrable events, all established by testimony, and then introduced as something proved what was merely argument on the part of the Commonwealth. The judge said that Mrs. Kravitz “requested Morris Passon to come to their home for some small gift, so that he could be there when the body was found.” This, of course, sounds as if Mrs. Kravitz had told Mr. Passon that she wanted him to be at the Kravitz house when the body was to be found. Of course, Mrs. Kravitz said no such thing. She went to the Passon home, as I have already mentioned, to deliver flower pots and asked Mr. Passon to accompany her home so that she could give him some agricultural implements. When they arrived at the house, the dead body was discovered. This discovery had nothing to do with the visit to the Passons, so far as established evidence is concerned.
The excerpts which I have taken from the judge’s Charge, all revealing a Commonwealth flavor, may not *239have been intended in that way by the speaker, but the jury can only be guided by what the judge says. The judge who is charging a jury is like the navigator in the control tower who is guiding an airplane into the airport through a dense fog. If the navigator speaks the wrong words, the airplane crashes.
It is very possible that the jury was reluctant to convict on the evidence as they heard it during the trial, but that when it came to them through the medium of the judge it took on nuances and colorations which made it sound like something far more convincing than it really was — and a verdict of guilty followed. Even so, it will be noted that there were some doubts in the minds of the jurors. Otherwise, they would not have returned a verdict of second degree murder with a recommendation of mercy.
If Mrs. Kravitz committed the heinous and brutal crime the Commonwealth charged her with, it is difficult to believe that, any jury sworn to enforce the law as written could have found any reason to render a verdict of second degree murder, instead of first degree murder.
I regret having to make the following observation because the trial judge is certainly a jurist of ability and integrity, but the. record, as I read it, demonstrates that he allowed his emotions to control his judgment, his feelings to guide his rulings, and his inner convictions to dictate his language of instruction to the jury. It would almost appear that he concluded that whatever assistance he could give the Commonwealth would be all for the good. He thus supplied the lightning of his authority to the thunder of the district attorney and, in doing so, the jury returned a verdict which could have been right, insofar as the facts are known to God, and then, again, by the same Omniscience, could have been entirely wrong. .. . . .
*240Since we are only mortals and can only form our judgment on what is revealed to us, we cannot say with that assurance which should he ours in a matter so serious as. a murder trial that the verdict in this case was uninfluenced by the errors which all those who run may read.
For that reason I believe there should be a new trial where the facts will speak trumpet-tongued, where prejudicial irrelevancies will be barred from the courtroom as effectually as a mob, where the scales of probity will be held uprightly, unswayed by the gales of passion which invariably accompany the discovery of deeds which shame mankind, and where the words of the judge will enlighten the jury as a living flame of impartiality and rectitude.
Such a trial, governed by the eternal principles of fairness and right which are a hallowed part of the great heritage of the democratic institutions of America, will take place in a calm and dispassionate atmosphere, and when the trial will have been concluded, the community will have reason to say that no one was denied due process and that the verdict, whatever it may be, will reflect truth and the sacred principles of eternal justice.
Both the Commonwealth’s brief and defense counsel’s brief repeatedly refer to the murder weapon as a “gun.” This tiresome misuse of a word is almost inexcusable. The weapon in this case was a revolver not a gun.
With the exception of twice stating the matter in hypothetical form, the judge repeated over and over that Mrs. Kravitz refused to take the blood test.