Commonwealth v. Fitzpatrick
15 A. 466
Pa.
1888
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Opinion,

Mr. Justice Williams:

The defendants in error, who were defendants below, were indicted and put on trial for murder. At the conclusion of the еvidence the questions involved were discussed by coznisel, and the jury after the charge of the court retired to dеliberate upon their verdict. This was on the first day of February, 1887. On the fifth of the same month, which was Saturday and the last day of the regular term of the couz't, the jury not having agreed upon a verdict, was discharged by the court, notwithstanding the objection of the defendants. The learned judge of the Oyer and Terminer caused the following adjudication to be entered on the miziutes: “Now to wit, 5th February, 1887, the jury in this case having come into court repeat*116edly and affirmed that they could not agree, and that they had made every possible effort to agree and that they still cannot agree, thе term of the court now expiring, the court being satisfied that ‍​‌‌​​​​‌‌​‌​‌​‌​​​​‌‌​‌​‌​​​‌​‌​‌​‌‌‌​​‌​​‌‌​‌‌​‍it is useless to detain the jury longer, the jury are discharged from thе further consideration of the case, to which order and discharge the defendants except, at whose request a bill is sealed.”

The defendants were again called for trial in the following month of May and pleaded spеcially the former trial and the discharge of the jury without rendering a verdict, in bar of any further trial for the same offence. The commonwealth demurred to this plea, and the court after argument entered judgment on the demurrer in favоr of the defendants and discharged them from custody. The question thus raised is whether the facts set forth in the special plea show that the defendants have been once in jeopardy for the offence now charged agаinst them. If so, the constitutional provision that “No person shall for the same offence be twice put in jeopardy of life or limb,” is a conclusive answer to the indictment.

Jeopardy is the peril in which a defendant is put when he is regularly charged with crime before a tribunal properly organized and competent to try him. He must under such circumstances submit the sufficiency of his defence to the decision of a jury of his peers. He is in their hands, exposed to-the danger of conviction with all its consequences; or in the language of the bill of rights he is “in jeopardy.” From ‍​‌‌​​​​‌‌​‌​‌​‌​​​​‌‌​‌​‌​​​‌​‌​‌​‌‌‌​​‌​​‌‌​‌‌​‍this jeoрardy he is to be relieved, if relieved at all, by the verdict of the jury. Unless some overriding necessity arises after the jеopardy begins, the trial must proceed until it ends in a conviction or an acquittal. In a capital case, therefore, the court has no power to discharge a jury without the consent of the defendant, unless an absolutе necessity requires it: Commonwealth v. Cook et al., 6 S. & R. 577. The mere inability of the jury to agree within a few hours or days is not such a necessity: Commonwealth v. Clue, 3 R. 498; nor is the fact that the regular term is approaching an end, for the courts ‍​‌‌​​​​‌‌​‌​‌​‌​​​​‌‌​‌​‌​​​‌​‌​‌​‌‌‌​​‌​​‌‌​‌‌​‍havе power to continue the term until the case can be properly ended.

The serious illness or insanity of the defendant, and the illness, insanity, or death of the judge or a juror engaged in the trial, have been held to create a necessity for the withdrawal *117of a juror and a postponement of the trial; and it is not difficult to imagine other cases in which a similar holding should be made.. In this case, however, we take notice of the fact that Lackawannа county constitutes a judicial district with a president and an additional law judge. The adjudication does not suggest any reason why the term could not have been extended, and we assume that, there was none. There was thereforе no case of necessity presented by the facts stated in the adjudication, nor did the learned judge undertake to put a finding of such necessity upon the record. The adjudication only asserts that “The court is satisfied that it is uselеss ‍​‌‌​​​​‌‌​‌​‌​‌​​​​‌‌​‌​‌​​​‌​‌​‌​‌‌‌​​‌​​‌‌​‌‌​‍to detain the jury longer,” and then directs their discharge. This order was a mistake. It was made in disregard of the protest of the defendants. They were in jeopardy when the order was made and its effect was to end the trial and the jeоpardy without a verdict and without their consent. When they were again called upon to answer and subject themsеlves to the jeopardy of a trial, they had a right under the constitution to say, “We have been once put in jeоpardy for this crime and we cannot be compelled to undergo the same peril a second time for the same offence.” This was the effect of their special plea and it was unanswerable: Peiffer v. Commonwealth, 15 Pa. 468; McFadden v. Commonwealth, 23 Pa. 12,; Alexander v. Commonwealth, 105 Pa. 1; Hilands v. Commonwealth, 111 Pa. 1.

There may be room to doubt the wisdom of the constitutional provision in its present form, but there is no room for disсussion as to its effect. The justice of sustaining a plea of former acquittal or conviction is unquestioned and unquestionable; but^a plea of “once in jeopardystands on narrower, more technical, and less substantial ground. It {Alleges only that there might have been a con viction or an acquittal, if the judge trying the cause had not made а mistake in law which prevented a verdict. It is of no consequence how many mistakes he makes, if the trial results in a сonviction. The mistakes can be corrected on a writ of error and the defendant tried over again. But if the mistake results in closing the trial without a verdict, this* is remediless. The court that made it cannot correct it. The propеr court of review cannot correct it. The consequence is that a defendant charged with *118taking tbe life оf Ms fellow man goes out of the court and. out of the reach of justice because of a mistake in law made after an honest and painstaking effort to be ‍​‌‌​​​​‌‌​‌​‌​‌​​​​‌‌​‌​‌​​​‌​‌​‌​‌‌‌​​‌​​‌‌​‌‌​‍right. Such was the case of Hilands v. Commonwealth. Such is this case. But the constitutional provision is plain and its enforcement by the courts has been uniform.

The judgment entered upon the demurrer was right, therefore, and it is now affirmed.