225 Pa. Super. 247 | Pa. Super. Ct. | 1973
Opinion by
The sole issue of this appeal is whether the third trial of the defendant was in violation of the double jeopardy clause of the Constitution of the United States.
On June 23, 1969, the United States Supreme Court held that the double jeopardy clause is applicable to the states through the Fourteenth Amendment.
Whether a re-trial is permissible under the double jeopardy clause after the jury is discharged without reaching a verdict depends on whether there was a “'manifest necessity” for the act. United States v. Jorn, 400 U.S. 470 (1971) ; United States v. Perez, 9 Wheat. 579 (1824). As the late Justice Harlan stated in Jorn, supra at 484-485: “For the crucial difference between
It is irrelevant that defendant has not objected to the trial judge’s action in declaring a mistrial. As our Supreme Court recently said in Commonwealth v. Shaffer et al., 447 Pa. 91, 101, 288 A. 2d 727 (1972), “In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceeding.” (Quoting Jorn.)
Appellant was exposed to two judicial proceedings before he was finally convicted in the third trial. The reason for the first mistrial was that the prosecuting attorney was ill. Recent decisional law leads us to the inexorable conclusion that such a reason for subjecting a defendant to a second trial can hardly be considered tantamount to “manifest necessity.” See, Commonwealth v. Ferguson, 446 Pa. 24, 285 A. 2d 189 (1971) (illness of Commonwealth witness did not justify mistrial) .
The second trial was terminated when the jury failed to reach a unanimous verdict after nine hours of deliberation. In Commonwealth v. Baker, 413 Pa. 105, 196 A. 2d 382 (1964), our Supreme Court held that double jeopardy attached to a second trial as the trial judge in the first trial had declared a mistrial for the
It is not to be forgotten that any doubts as to the existence of a “manifest necessity” of granting a mistrial must be resolved “in favor of the liberty of the citizen, rather than [by exercising] what would be an unlimited, uncertain, and arbitrary judicial discretion.” Commonwealth v. Ferguson, supra at 30.
Under the circumstances of the instant case, we conclude that the two proceedings which resulted in mistrials should not have been aborted as no “manifest necessity” was evident. Absent exceptional circumstances and overriding societal policy this Court must hearken to the purpose of the Fifth Amendment provision against double jeopardy i.e., “that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling Mm to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Benton v. Maryland, supra at 796.
For these reasons we reverse the judgment of sentence, vacate the convictions and discharge the appellant.
In Commonwealth v. Richbourg, 442 Pa. 147, 275 A. 2d 345 (1971), onr Supremo Court held that the Benton decision was fully retroactive. See Ashe v. Swenson, 397 U.S. 436, n.1 (1970).