Dissenting Opinion by
Mr. Justice Musmanno:Alfred Cisneros, born in America of Mexican and Puerto Rican parents, was tried for felonious homicide in Philadelphia and convicted of murder in the first degree. A study of the record demonstrates quite palpably that he did not receive the fair and impartial trial which the Constitution of the United States and the Constitution of Pennsylvania, both formulated in the city of his trial, guarantee to him as a citizen of this American Republic. Although the jury chosen to render him justice listened for three days to evidence, it was stripped of all powers of decision by the Trial Judge who effectually dictated the verdict by telling the jury that “a verdict of not guilty would be a miscarriage of justice.” This kind of language placed before the jury a dead end in their path of deliberation, it erected a barrier with which conscience, logic and intelligence could not cope. This language almost suggested to the jury that they themselves might have to answer for some species of misconduct if they acquitted, the defendant. Nor was the dogmatic direction of the Judge in any way-mitigated, by the fact that he ádded that his opinion was not binding on the jury. What is.meant by “not binding?”. ■......
That .the. Judge did not intend to modify his “convicting” words is demonstrated by the fact that he immediately went on to crescendo the degree of fate which the jury could impose on the defendant. He instructed them that they, could find him guilty of sec*455ond degree murder, they could render a verdict of first degree murder with life imprisonment, or they could return a verdict of murder in the first degree and affix the penalty at death.
The Judge’s statement above quoted appears at the very end of the charge. The full wording is as follows: “Therefore, members of the jury, depending upon the manner in which you resolve the issue of fact in this case, and apply the law, as I have previously defined it to you, to those facts, you can return one of four possible verdicts, first, a verdict of not guilty, although I previously indicated to you that it is my conviction that under the evidence in this case a verdict of not guilty would be a miscarriage of justice. However, my opinion is not binding upon you.”
The Trial Judge here says that it is his conviction that an acquittal would amount to a miscarriage of justice, but that his opinion is not binding on the jury. Of course, it is obvious that the word conviction rises to a higher degree of certainty than opinion. Webster’s International Dictionary defines conviction as: “State of being convinced.” “A strong persuasion or belief; as, to live up to one’s convictions; an intensity of thorough conviction ”
The Majority disposes of the Trial Judge’s invasion of the jury box by saying that the Judge’s language “was not harmful to the defendant” because “the jury could not have drawn the distinction between the use of the word ‘conviction’ and the use of the word ‘opinion’ which the appellant claims. It would be unwarrantable to hold that the jurors in this case, who were undoubtedly laymen — not philologists or lexicoggraphers — would understand the word ‘conviction’ to be something different than ‘opinion.’ ” This argument suggests either that no member of the jury was educated enough to understand the difference between *456“conviction” and “opinion” or that the Trial Judge was relying upon an assumed ignorance of his audience by employing language which was to be understood as meaning something other than what it actually said. Either interpretation bestows no credit on Judge or jury.
I would grant a new trial in this case not only because of the irreparable harm done by the Judge’s use of the phrase, “miscarriage of justice,” but also because of the general prejudicial tone of his charge throughout. After the argumentative and partisan arguments of the district attorney and defense counsel, it is supposed that the Judge presiding over a trial will tranquilize with deliberative manner and speech the turbulent waves of thought and feeling aroused and agitated by the battling attorneys. Here, however, the Judge did not pour the oil of serenity on the billows of debate. A listening person, not noting the change in voice, or observing the identities of the speakers, might have had difficulty in determining where the district attorney ended and the Trial Judge began. At one point in his charge, after reviewing the evidence, the Judge said: “If after weighing and considering all the evidence in the case you have a reasonable doubt of the guilt of the defendant of the crime of murder for which he stands indicted, then you must return a verdict of not guilty.” He then followed with: “Now, on what basis and what evidence could you return such a verdict?” In other words, on what possible basis could the jury even think of returning a verdict of not guilty?
He'followed this cynical jibe at the defendant’s case' with a supposed'outlining of points in the defendant’s behalf:. “You could "acquit the defendant if under the evidence in»the'case you conclude either that the defendant did? not ’ shoot his wife, or if you find that he *457did, that you accept and believe Ms testimony that he never intended to kill or harm her, that he procured the gun which he had in Ms possession only for the purpose of frightening her or using it upon himself, that he did not intend to fire the gun at his Avife and that in some unexplained manner several shots were discharged from the gun, two or three of which struck the deceased and one struck the defendant, inflicting the wounds Avhich have been described here.”*
The italicized portion of the above statement is sarcasm Avhich certainly should have no place in any charge, and especially not in one which has to do with a trial where a man’s life is at stake. And then, as if this contemptuous reference to the defendant’s case was not enough, the Judge proceeded to destroy every chance for a possible Not Guilty verdict by stating: “If you make such findings, you would, of course, be disregarding all the evidence in the CommonAvealth’s case, that evidence I have revieAved for you, consisting of both direct and circumstantial evidence hearing on the guilt of the defendant
It is no Avonder that at the end of the charge, as already quoted, the Judge emphasized: “7 previously indicated to you that it is my conviction that under the evidence in this case a verdict of not guilty would be a miscarriage of justice.”
Of course, in pointing out these falls from grace on the part of the Trial Judge, it is not my purpose to suggest that he had any ulterior purpose in seeking conviction of the defendant. He undoubtedly was sincerely convinced that the defendant was guilty, but so long as Ave have trial by jury it is the jury which decides guilt or innocence, not the judge. If the evidence was so overAvhelmingly in favor of the prosecution, as *458the Judge assumed and believed, Avhy Avas it necessary to bludgeon the jury into a verdict of guilty? Could he not assume that the jury itself Avould see Avhat apparently he saAV so vividly? And then Avith all his certitude, it Avas still possible the Judge could have mis-strained the evidence. In his solicitude that error should not approach the jury box he overlooked that it Avas Avithin the realm of possibility that it could touch the bench. In Commonwealth v. Karmendi, 325 Pa. 63, 68, this Court very properly ordered a neAV trial Avhen the Judge in that case shed the robe of impartiality assigned to him by laAV and the traditions of his centuries-old office: “Complaint is made of the temper and scope of the trial court’s charge to the jury. There Avas elaborate comment in graphic terms on the evidence and inferences therefrom tending to indicate, on defendant’s part, conduct inconsistent Avith innocence. The CommonAvealth’s closing argument Avas largely repeated in tenor and form appropriate only to that stage of the trial. But comment on defendant’s evidence by comparison was strikingly inadequate. The charge also reveals by innuendo, if not forthright, the court’s opinion that she Avas guilty, and Avas expressed in rhetoric which must have been a factor in moving the jury to the same opinion. This is not the proper function of a charge: Commonwealth v. Myma, 278 Pa. 505; Commonwealth v. Trunk, 311 Pa. 555; Commonwealth v. Robinson, 102 Pa. Superior Ct. 46. Nor can such excess of statement be cured instructing by the jury that it must exercise its oavu judgment.”
The charge in the case at bar has other faults. It is, for one thing, confusing. And the confusion always managed to inure to the disadAvantage of the defendant. The Judge charged at length on manslaughter, taking the jury on a 500-Avord labyrinthian tour of that complicated subject, and then he terminated the journey *459with the startling* declaration: “Now, members of the jury, while I have defined for you the crime of manslaughter, both voluntary and involuntary, I instruct you that there is no evidence here in this case that toould warrant a verdict of manslaughter, either voluntary or involuntary.” Further: “Therefore,- members of the jury, get that clearly in your minds. There is no basis for your bringing in a verdict of voluntary manslaughter in this case.”
As a matter of pragmatic reality, manslaughter, as I view the law, was definitely in this case. In nearly all homicide resulting from emotional disturbances and outbursts, as opposed to coldly calculated planning for material advantage, the elements of voluntary manslaughter are invariably present for consideration. I will not burden this Dissenting Opinion with any dissertation on the law appertaining to manslaughter, but I should like to incorporate by reference my views on that topic as expressed recently in the case of Commonwealth v. LaRue, 381 Pa. 113.
But if manslaughter, both voluntary and involuntary, in the eyes of the Trial Judge, was out of the case, why did he charge so extensively on the theme? Considering the fact that the Judge already knew that he was ruling a manslaughter verdict out of the proceedings, his exposition on the subject was as irrelevant as a description of a trip through Egypt. However, the serious fault of the instruction on manslaughter, from the Judge’s point of view, lies not in its superfluity, but in the cumulative effect of his hammering-on the theme that there was no defense really left to the defendant. He forbade the jury to return a verdict of manslaughter; he instructed them not to be influenced by the district attorney’s statement that the prosecution did not seek or urge a death penalty; after telling the jury that character evidence with all the *460other evidence in the case could raise a reasonable doubt capable of working a conviction, if he warned: “However, as you well know, members of the jury, persons of good reputation sometimes commit crimes,” and then proceeded to point out that the defendant had once committed an assault and battery; he replied to defense counsel’s argument as if he were an opponent in debate; and then finally he adjured the jury that to return a verdict of not guilty would be a miscarriage of justice.
Keeping in mind the respect and even awe with which a jury looks upon the bench it would be like gathering figs from thistles to expect that the jury would defiantly oppose what the Judge so obviously desired and almost imperiously demanded. From the moment the Judge ceased speaking the defendant ivas doomed and the jury’s deliberation could only have been an empty formality.
The consideration which Alfred Cisneros received at this trial could more easily fit into the history of the ruling caste which tyranically reigned in the land of his ancestors than accord with the chronicles of fairness always associated with Anglo-American justice.
The reasons for a new trial in this case are an open book for anyone to see, but they seem to have made no impression on the Majority which remains satisfied that no harm was done the defendant because the members of the jury, after all, were “not philologists or lexicographers” and thus could not distinguish between “conviction” and “opinion.”
I dissent.
Emphasis from here on, supplied.