165 A. 765 | Pa. Super. Ct. | 1933
Argued March 13, 1933. These are appeals by the Commonwealth from orders of the court below sustaining pleas of autrefois acquit and dismissing the demurrers of the Commonwealth to such pleas. Seven indictments were found against the defendant wherein he was charged with obtaining money by false pretenses, larceny by clerk and *72 employee, and fraudulent conversion. The defendant entered pleas of not guilty, and all the cases were presented to one jury. They were argued together before this court and will be disposed of in one opinion. In the course of the trial, the assistant district attorney took exceptions to a remark of counsel for the defendant and moved for the withdrawal of a juror on the ground that such remarks were prejudicial to the Commonwealth's cases. Judge CHASE, specially presiding, granted the motion, withdrew a juror, and continued the cases. At a later term the cases were listed and again called for trial before another judge. The defendant then entered pleas of autrefois acquit, the Commonwealth demurred, and the court made the orders which we have indicated.
The court below, in an opinion sustaining the pleas of autrefois acquit, gave consideration to the propriety of the action of Judge CHASE in the first trial in withdrawing a juror and concluded that the remarks attributed to counsel for the defendant were not such as warranted the action taken, there being no manifest necessity for the discharge of the jury, and that the defendant would, therefore, be placed in jeopardy a second time if the demurrer of the Commonwealth was sustained. We are inclined to agree with the conclusion of the court below that it was a mistake of law on the part of the trial judge at the first trial to withdraw a juror. The rights of the Commonwealth could have been fully protected by an admonition to the jury to disregard the remarks of counsel. It does not follow that the defendant may not be tried again on the indictments in question. We said in the case of Com. v. Friedman,
The contention of defendant is that Judge CHASE made a mistake of law in withdrawing a juror at the first trial, and the defendant may therefore not again be placed in jeopardy. In a capital case the law is undoubtedly as contended for by defendant (Com. v. Cook, 6 S. R. 577; Hilands v. Com.,
The defense in this case is technical and does not involve tests for guilt or innocence. We are all of the opinion that the order of the lower court should be reversed.
The several judgments are reversed with a procedendo.