Commonwealth v. McNair

Superior Court of Pennsylvania

Commonwealth v. McNair

222 A.2d 599, 208 Pa. Super. 369, 1966 Pa. Super. LEXIS 852

CourtSuperior Court of Pennsylvania

DecidedSeptember 15, 1966

DocketAppeal, 352

StatusPublished

Cited by24 cases

This text of 222 A.2d 599 (Commonwealth v. McNair) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. McNair, 222 A.2d 599, 208 Pa. Super. 369, 1966 Pa. Super. LEXIS 852 (Pa. Ct. App. 1966).

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Opinion

Opinion by

Montgomery, J.,

In this prosecution of appellant-defendant on the charge of driving a motor vehicle while under the influence of intoxicating liquor, his counsel requested and was refused the privilege of summation at the conclusion of the evidence. The trial was conducted without a jury before the Honorable John A. Boyle, who found the defendant guilty. Motions for a new trial and in arrest of judgment having been refused and sentence imposed this appeal followed.

A new trial must be granted. Had this been a jury trial the question would be settled by Charles Stewart v. The Commonwealth, 117 Pa. 378, 11 A. 370 (1887), *371 which held that the denial of the right of summation by counsel was an abridgement of the defendant’s constitutional right to full representation by counsel. The finding of a judge in a nonjury criminal case is the equivalent of a jury verdict. In Commonwealth v. Richman, 132 Pa. Superior Ct. 529, 532, 1 A. 2d 578, 579 (1938), this Court said, “A defendant surrenders none of his substantive rights when he is tried by a judge without a jury under the Act of 1935, and the trial judge is required to give consideration to, and is bound by, the same legal principles as a jury.” The right of summation is an important substantive right. Therefore, we hold that the principle of the Stewart case is equally applicable to nonjury trials as the summation stage of a prosecution is critical and to deny completely such right is prejudicial error. See generally Yopps v. State, 228 Md. 204, 178 A. 2d 879 (1962); 6 A.L.R. 3d 604; 38 A.L.R. 2d 1396. We cannot accept the district attorney’s argument that this denial of the right of summation was not prejudicial because of the subsequent opportunity defendant’s counsel had to review the evidence under the Act of June 15, 1951, P. L. 585, §1,19 P.S. §871, in arguing the post-trial motions. We cannot reasonably conclude that an argument made after a decision has been made is always as effective as it might have been if made before such time.

Judgment reversed and new trial awarded.

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Opinion by

Montgomery, J.,

In this prosecution of appellant-defendant on the charge of driving a motor vehicle while under the influence of intoxicating liquor, his counsel requested and was refused the privilege of summation at the conclusion of the evidence. The trial was conducted without a jury before the Honorable John A. Boyle, who found the defendant guilty. Motions for a new trial and in arrest of judgment having been refused and sentence imposed this appeal followed.

A new trial must be granted. Had this been a jury trial the question would be settled by Charles Stewart v. The Commonwealth, 117 Pa. 378, 11 A. 370 (1887), *371 which held that the denial of the right of summation by counsel was an abridgement of the defendant’s constitutional right to full representation by counsel. The finding of a judge in a nonjury criminal case is the equivalent of a jury verdict. In Commonwealth v. Richman, 132 Pa. Superior Ct. 529, 532, 1 A. 2d 578, 579 (1938), this Court said, “A defendant surrenders none of his substantive rights when he is tried by a judge without a jury under the Act of 1935, and the trial judge is required to give consideration to, and is bound by, the same legal principles as a jury.” The right of summation is an important substantive right. Therefore, we hold that the principle of the Stewart case is equally applicable to nonjury trials as the summation stage of a prosecution is critical and to deny completely such right is prejudicial error. See generally Yopps v. State, 228 Md. 204, 178 A. 2d 879 (1962); 6 A.L.R. 3d 604; 38 A.L.R. 2d 1396. We cannot accept the district attorney’s argument that this denial of the right of summation was not prejudicial because of the subsequent opportunity defendant’s counsel had to review the evidence under the Act of June 15, 1951, P. L. 585, §1,19 P.S. §871, in arguing the post-trial motions. We cannot reasonably conclude that an argument made after a decision has been made is always as effective as it might have been if made before such time.

Judgment reversed and new trial awarded.

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222 A.2d 599, 208 Pa. Super. 369, 1966 Pa. Super. LEXIS 852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mcnair-pasuperct-1966.

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