Opinion by
Henderson, J.,
All of the assignments of error relate to the charge of the court the objections to which may be briefly stated as follows: (1) The trial judge commented upon the testimony of one of the witnesses for the commonwealth as being “ unchallenged,” “ uncontradicted,” “ undisputed ; ” (2) ' the probable consequences of a conviction were discussed; (3) the supplementary instructions to the jury amounted to coercion; (4) the charge as a whole was biased and unfair to the defendant. One of the principal witnesses for the commonwealth was Milholland. It would appear from the charge of the court that an attempt had been made to show, by argument of counsel or by suggestion in the course of the trial, that this witness represented interests antagonistic to the railroad company which ivas seeking a franchise from the city councils and with reference to this subject the court instructed the jury that Milholland was not on trial except so far as his credibility was involved; that in determining the weight to be given to his evidence they should consider the fact that he was engaged in the same business of which the defendant was accused — in other words, that to a certain extent he was an accomplice. In that connection the court said that in passing on his credibility they should consider the fact that every statement he gave as a witness was unchallenged; that he was not contradicted by any testimony offered upon the witness stand. The words, “unchallenged,” “ uncontradicted ” and “ undisputed ” were used in the same sense and indicated that no one had been called who contradicted the testimony of the witness. His evidence was strongly corroborated in its material parts and the commomwealth’s case did not wholly depend upon his testimony. After directing the attention of the jury to the allegations of the [461]*461witnesses in support of the commonwealth’s case the judge said: “ I am not stating to you what value you ought to give them” (the statements of the witnesses), “but I say that they are evidence in this case for your consideration in passing upon the question, which is the question in this case, was this an honest transaction?” The court further said: “The facts in this case are for your determination. I have instructed you as to what may constitute in law the offense of which this defendant is charged. Whether or not the evidence produced here justifies his conviction is for you to determine.” As there were no witnesses called for the defendant to testify in regard to the acts of the defendant out of which the accusation grew the learned trial judge did not exceed his duty in the language of the charge complained of. The evidence of the commonwealth’s witnesses was uncontradicted, unchallenged and undisputed by any witness called for the defendant and an examination of the charge will show that that is what the court said. The plea of “ not guilty ” was not testimony in the case, nor was the evidence of good character contradictory of the testimony of the witnesses who narrated the various transactions proved by the commonwealth in support of the indictment. All of the evidence in the case bearing upon the guilt or innocence of the defendant, except that presented' in support of his good character, was offered by the commonwealth. The trial judge was within the limits of propriety, therefore, when he used the language attributed to him and the jury could not have had any other understanding of this part of the charge than that no witnesses had been called by the defendant to controvert what the commonwealth’s witnesses had said on the stand. Similar language was used in Johnston v. Com., 85 Pa. 54. It is claimed that the court violated sec.10 of the Act of May 23, 1887, P. L. 158, in referring to the evidence as uncontradicted. We are unable to find in theicharge any language equivalent to an “adverse reference ” $0 the failure of the defendant to testify in his own behalf. Several persons participated in the acts which it was claimed by the commonwealth amounted to a conspiracy to bribe and any of these might have been called by the defendant if he had desired so to do. The fact that they were called by the commonwealth did not preclude the defendant from using the [462]*462same witnesses. His relation to the transaction apparently made it inexpedient for him to call as witnesses the persons with whom he had been acting, and it was the privilege of the court to call the attention of the jury to the fact that the commonwealth’s witness had not been opposed by the testimony of any witnesses called for the defense. No reference was made to the failure of the defendant to testify and it was certainly not the purpose of the statute to restrict discussion in the trial of a case beyond the manifest purpose indicated by its language.
We do not find anything in the charge to justify the criticism that it discussed the probable consequences of a conviction. The remarks of the court were in response to a suggestion of one of the members of the jury that some of them “ would like to know regarding the penalty.” The jurors were promptly informed that they had nothing to do with the penalty; that that was a matter for the court exclusively; that they should not consider it or enter into a discussion on that subject, but that any recommendation of mercy or severity would be considered. Com. v. Switzer, 134 Pa. 383, cited by the appellant, is very different in its facts from the case under consideration. The court there informed the jury what the sentence would probably be in case of a conviction and it was this putting before the jury of the probable action of the court which was said by the Supreme Court to be unfortunate.
The light of the court to express its opinion respecting the evidence where this is done without misleading or controlling the jury in the disposition of the ease is shown by many cases. In Johnston v. Com., 85 Pa. 54, there was a strong expression of opinion of the guilt of the defendant. In Kilpatrick v. Com., 31 Pa. 198, it was said: “ A judge may rightfully express his opinion respecting the evidence and it may sometimes be his duty to do so, yet not so as to withdraw it from the consideration and decision of the jury.” To the same effect are : Leibig v. Steiner, 94 Pa. 466; Spear v. R. R. Co., 119 Pa. 61; Baltimore & Potomac R. R. v. Fifth Baptist Church, 137 U. S. 568 ; Simmons v. U. S., 142 U. S. 148; Doyle v. Ry. Co., 147 U. S. 413. There was here, however, no expression of opinion as to the guilt or innocence of the defendant. That question was wholly committed to the jury. The authority of a [463]*463judge to adopt reasonable methods to bring about a verdict cannot be doubted if the verdict be based upon conscientious convictions and to that end a judge may impress upon the jury the importance of reaching such a verdict: Miller v. Miller, 187 Pa. 572. Nothing more than that was done in this.case. The time when the court will discharge a jury for failure to agree is ordinarily a matter of discretion with the trial judge. He may not impose penalties, nor should he subject to undue physical discomfort, but a failure to discharge the jury on request does not amount to coercion. There was no request to be discharged by this jury until they came in the third time and then in reply to an inquiry whether they were suffering seriously from their confinement the foreman replied that they were not.
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Opinion by
Henderson, J.,
All of the assignments of error relate to the charge of the court the objections to which may be briefly stated as follows: (1) The trial judge commented upon the testimony of one of the witnesses for the commonwealth as being “ unchallenged,” “ uncontradicted,” “ undisputed ; ” (2) ' the probable consequences of a conviction were discussed; (3) the supplementary instructions to the jury amounted to coercion; (4) the charge as a whole was biased and unfair to the defendant. One of the principal witnesses for the commonwealth was Milholland. It would appear from the charge of the court that an attempt had been made to show, by argument of counsel or by suggestion in the course of the trial, that this witness represented interests antagonistic to the railroad company which ivas seeking a franchise from the city councils and with reference to this subject the court instructed the jury that Milholland was not on trial except so far as his credibility was involved; that in determining the weight to be given to his evidence they should consider the fact that he was engaged in the same business of which the defendant was accused — in other words, that to a certain extent he was an accomplice. In that connection the court said that in passing on his credibility they should consider the fact that every statement he gave as a witness was unchallenged; that he was not contradicted by any testimony offered upon the witness stand. The words, “unchallenged,” “ uncontradicted ” and “ undisputed ” were used in the same sense and indicated that no one had been called who contradicted the testimony of the witness. His evidence was strongly corroborated in its material parts and the commomwealth’s case did not wholly depend upon his testimony. After directing the attention of the jury to the allegations of the [461]*461witnesses in support of the commonwealth’s case the judge said: “ I am not stating to you what value you ought to give them” (the statements of the witnesses), “but I say that they are evidence in this case for your consideration in passing upon the question, which is the question in this case, was this an honest transaction?” The court further said: “The facts in this case are for your determination. I have instructed you as to what may constitute in law the offense of which this defendant is charged. Whether or not the evidence produced here justifies his conviction is for you to determine.” As there were no witnesses called for the defendant to testify in regard to the acts of the defendant out of which the accusation grew the learned trial judge did not exceed his duty in the language of the charge complained of. The evidence of the commonwealth’s witnesses was uncontradicted, unchallenged and undisputed by any witness called for the defendant and an examination of the charge will show that that is what the court said. The plea of “ not guilty ” was not testimony in the case, nor was the evidence of good character contradictory of the testimony of the witnesses who narrated the various transactions proved by the commonwealth in support of the indictment. All of the evidence in the case bearing upon the guilt or innocence of the defendant, except that presented' in support of his good character, was offered by the commonwealth. The trial judge was within the limits of propriety, therefore, when he used the language attributed to him and the jury could not have had any other understanding of this part of the charge than that no witnesses had been called by the defendant to controvert what the commonwealth’s witnesses had said on the stand. Similar language was used in Johnston v. Com., 85 Pa. 54. It is claimed that the court violated sec.10 of the Act of May 23, 1887, P. L. 158, in referring to the evidence as uncontradicted. We are unable to find in theicharge any language equivalent to an “adverse reference ” $0 the failure of the defendant to testify in his own behalf. Several persons participated in the acts which it was claimed by the commonwealth amounted to a conspiracy to bribe and any of these might have been called by the defendant if he had desired so to do. The fact that they were called by the commonwealth did not preclude the defendant from using the [462]*462same witnesses. His relation to the transaction apparently made it inexpedient for him to call as witnesses the persons with whom he had been acting, and it was the privilege of the court to call the attention of the jury to the fact that the commonwealth’s witness had not been opposed by the testimony of any witnesses called for the defense. No reference was made to the failure of the defendant to testify and it was certainly not the purpose of the statute to restrict discussion in the trial of a case beyond the manifest purpose indicated by its language.
We do not find anything in the charge to justify the criticism that it discussed the probable consequences of a conviction. The remarks of the court were in response to a suggestion of one of the members of the jury that some of them “ would like to know regarding the penalty.” The jurors were promptly informed that they had nothing to do with the penalty; that that was a matter for the court exclusively; that they should not consider it or enter into a discussion on that subject, but that any recommendation of mercy or severity would be considered. Com. v. Switzer, 134 Pa. 383, cited by the appellant, is very different in its facts from the case under consideration. The court there informed the jury what the sentence would probably be in case of a conviction and it was this putting before the jury of the probable action of the court which was said by the Supreme Court to be unfortunate.
The light of the court to express its opinion respecting the evidence where this is done without misleading or controlling the jury in the disposition of the ease is shown by many cases. In Johnston v. Com., 85 Pa. 54, there was a strong expression of opinion of the guilt of the defendant. In Kilpatrick v. Com., 31 Pa. 198, it was said: “ A judge may rightfully express his opinion respecting the evidence and it may sometimes be his duty to do so, yet not so as to withdraw it from the consideration and decision of the jury.” To the same effect are : Leibig v. Steiner, 94 Pa. 466; Spear v. R. R. Co., 119 Pa. 61; Baltimore & Potomac R. R. v. Fifth Baptist Church, 137 U. S. 568 ; Simmons v. U. S., 142 U. S. 148; Doyle v. Ry. Co., 147 U. S. 413. There was here, however, no expression of opinion as to the guilt or innocence of the defendant. That question was wholly committed to the jury. The authority of a [463]*463judge to adopt reasonable methods to bring about a verdict cannot be doubted if the verdict be based upon conscientious convictions and to that end a judge may impress upon the jury the importance of reaching such a verdict: Miller v. Miller, 187 Pa. 572. Nothing more than that was done in this.case. The time when the court will discharge a jury for failure to agree is ordinarily a matter of discretion with the trial judge. He may not impose penalties, nor should he subject to undue physical discomfort, but a failure to discharge the jury on request does not amount to coercion. There was no request to be discharged by this jury until they came in the third time and then in reply to an inquiry whether they were suffering seriously from their confinement the foreman replied that they were not. They were asked to return to the jury room and make an effort to agree on a verdict in the case. Ahearn v. Mann, 60 N. H. 472; Erwin v. Hamilton, 50 Howard’s Prac. Rep. 32, and White v. Calder, 35 N. Y. 183, are cases in which the court urged upon the jury the importance of arriving at a verdict in terms as strong or stronger than are complained of here and these cases are cited with approval in Miller v. Miller, 187 Pa. 572. When we consider that the evidence was positive, clear and not contradicted, the propriety of the action of the court in impressing upon the minds of the jury the importance of arriving at a verdict cannot be questioned.
The charge does not appear to us to be obnoxious to the criticism of unfairness. That it dealt largely with the evidence for the commonwealth was a result of the fact that all of the evidence of facts bearing on the charge against the defendant was offered by the commonwealth. If the trial judge reviewed the evidence at all he necessarily devoted his attention principally to the commonwealth’s side. The attention of the jury was called, however, to the evidence offered for the defense and its relevancy and importance was clearly stated. Taking the whole evidence into consideration the defendant has no just cause to allege that the case was not fairly presented to the jury.
The assignments of error are overruled, the judgment is affirmed and the record remitted to tlie court below to the end that the sentence may be carried into execution.