Commonwealth v. Meads , 29 Pa. Super. 321 ( 1905 )

Opinion by

Oblady, J.,

The defendant was indicted and convicted of'knowingly and unlawfully using and displaying a counterfeit, or imitation, of the label, trade-mark, symbol or private stamp of the Cigar Makers’ International Union of America, in violation of the provisions of the Act of May 21,-1895, P. L. 95, as amended by Act of May 2, 1901, P. L. 114, and Act of April 3, 1903, P. L. 134. The title to the original act is as follows : “ An act to provide for the adoption of trade-marks, labels, symbols or private stamps by any incorporated or unincorporated association or union of workingmen, and to regulate the same.” It is contended by appellant that the indictment should have been quashed and the judgment on the verdict arrested, on his motion as filed, for the reason that the third section of the act of 1895, and as subsequently amended, is unconstitutional in that it creates a new offense and provides for the imposition of a penalty in violation of article III, sec. 3, of the state constitution, viz.: “ No bill shall be passed containing more than one subject which shall be clearly expressed in its title,” the argument being that the words, “ and to regulate the same,” can only refer to the adoption of the trade-marks, and not to the violation of the provisions of the statute. The contention that the title to the bill is defective because it does not give adequate notice of its contents is not a new one, having been urged upon this court in a number of cases. See Commonwealth v. Muir, 1 Pa. Superior Ct. 578 ; s. c. 180 Pa. 47; Commonwealth v. Moore, 2 Pa. Superior Ct. 162; Commonwealth v. Jones, 4 Pa. Superior Ct. 362; Baker v. Warren County, 11 Pa. Superior Ct. 170 ; Commonwealth v. Beatty, 15 Pa. Superior Ct. 5 ; Commonwealth v. Norton, 16 Pa. Superior Ct. 423 ; Commonwealth v. Ayers, 17 Pa. Superior Ct. 352; Commonwealth v. Mintz, 19 Pa. Superior Ct. 283; Stroudsburg Boro. v. Shick, 24 Pa. Superior Ct. 442. Measured by the standard determined by these cases the title to this statute is sufficiently clear to give notice of the legislative purpose of those who may be specially interested therein, and so as reasonably to lead to an inquiry into its body. The words used in the title are certainly clear and intelligible enough to direct the attention of anyone who contemplated using or displaying' a counterfeit or imitation of a trade-mark, label, symbol or private stamp to an examination into the provisions relating thereto. “ To regulate means to lay down a rule by which a thing shall be done ; to prescribe a rule by which a business or trade shall be conducted: ” Anderson’s Law Diet. “ To adjust by rule, method or established mode; to direct by rule or restriction; to subject to governing principles or laws : ” 2 Bouvier’s Law Dict. (Rawle Rev.). In McVey v. Brendel, 144 Pa. 235, the Supreme Court say: “There is no rule of morals or business upon which a man can defend himself in the preparation and use of spurious labels.” The title directs the attention of all who use or display trademarks, whether with innocent intention or guilty purpose, to an examination of the act. The assignments relating to the invalidity of the title of the act are not sustained.

The arrangement in this case was to deliver the goods at a railroad station in Adams county, hence the title to the property did not pass upon delivery to the common carrier in York county but was. incomplete until actually delivered at the place of • consignment: Dannemiller v. Kirkpatrick, 201 Pa. 218 ; Commonwealth v. Schmunk, 22 Pa. Superior Ct. 348; s. c., 207 Pa. 544. The answer of the trial judge to the defendant’s request for binding instructions at the close of the commonwealth’s case was fully justified by many decisions in addition to the ones above cited, and the second assignment^ of error is overruled.

The charge of the court to the jury is open to several objections, notably in the excerpts embraced in the seventh, eighth, ninth and twelfth assignments. Some expressions are extravagant in their character, and they would necessarily affect the judgment of the jurors adversely to the defendant by tending to belittle the defense. While the charge was replete with caution that the jury should give the defendant the benefit of all reasonable doubt, it was manifest from the words employed and illustrations used that the trial judge strongly favored a verdict of guilty: Penna. R. R. Co. v. Berry, 68 Pa. 272; Pierson v. Duncan, 162 Pa. 187; Heydrick v. Hutchinson, 165 Pa. 208 ; Cauffman v. Long, 82 Pa. 72.

It is well settled that it is not error for a judge in his charge to a jury to express his opinion upon the facts if done fairly, provided he does not give a binding direction or interfere with the province of the jury: Com. v. Orr, 138 Pa. 276. But in every case which justifies a judge in expressing an opinion the jury should be directly informed that it is his opinion, and that they are not to be bound by it. And the expression of opinion should always be made with the utmost fairness and absence of partisanship. To say to the jury: “ If you believe Jackson and Stine in corroboration of that fact, then he is not guilty. If these men are telling the truth, he is not guilty; but can you believe them; as reasonable men, can you believe them ? ” This practically eliminated their testimony from the case, and at the same time destroyed the testimony of the defendant so far as it was corroborated by them. If the jury believed the testimony of the defendant he was entitled to a verdict of not guilty, independent of the credibility of the other witnesses.

To say of a witness for the commonwealth, “ Mr. Hershey is one of the most reputable citizens, as you all know, a man who has been in business for some time in the borough of York Springs,” was giving this witness a standing with the jury entirely independent of, if not at variance with, the evidence in the case. The assumption of facts by the court, giving credit to, or detracting from, special witnesses, coupled with the statement that “ the responsibility of the punishment is not with you, and you will not allow it to unduly influence you in any way at all; it can be very heavily punished, and it ought to be very heavily punished, but the responsibility of that is not with you, it is entirely with the court,” indicated that the trial judge was impressed with a belief of the defendant’s guilt. It may be correct as a matter of ethical judgment to say that it is the bounden duty of labor to organize for its protection, but to say that “ if they fail to do so their truest interests might soon be crushed under the pitiless juggernaut of conscienceless capital,” is a form of expression more appropriate on a public rostrum than from the judicial bench. Taken as a whole the charge was calculated to mislead, and was not an unprejudiced and deliberate presentation of the law and dispassionate submission of the facts to the jury. It gave undue prominence to the testimony of Hershey, a witness for the commonwealth, and impeached the testimony of the two witnesses for the defendant. Such statements by the court exert an influence which cannot be estimated : Goersen v. Com., 99 Pa. 388 ; Commonwealth v. Goldberg, 4 Pa. Superior Ct. 142; Commonwealth v. Winkelman, 12 Pa. Superior Ct. 497.

When a case is to be submitted to the jury the credibility of witnesses and the weight and effect of their testimony is exclusively within the province of the jury, and the trend of all our decisions is to watch over and protect zealously the legitimate powers of the jury by preventing the trial judge from overstepping the line which separates law from fact. The purpose of a charge is to state and explain the law, not to carry on a process of general reasoning which tends to influence the jury in either direction. For these reasons the defendant did not have that fair and impartial trial which our laws guarantee to every citizen.

The judgment is reversed and a venire facias de novo awarded.