217 Pa. Super. 96 | Pa. Super. Ct. | 1970
Dissenting Opinion
Dissenting Opinion by
Appellant was indicted for rape and brought to trial before a judge and jury. After the Commonwealth and defense had rested their case and argued to the jury, the trial judge indicated that since the hour was late, he would charge the jury the next day. When court reconvened for that purpose, the district attorney made a motion for withdrawal of a juror. His motion and
Fourteen months later, appellant was tried once again for rape. He entered a plea of former jeopardy, which plea was denied by the court. Appellant was convicted, and his motion for a new trial was denied.
Several years later, appellant filed a post-conviction petition, alleging his conviction was in violation of the guarantee against double jeopardy. After a hearing, his petition was denied. From that denial, this appeal followed.
When faced with this question before, both the Supreme Court and this Court have noted that the federal guarantee against double jeopardy was not binding upon Pennsylvania. See, e.g., Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 180, 183, 220 A. 2d 859, 861, cert. denied, 385 U.S. 963, 87 S. Ct. 405 (1966); Commonwealth v. Kubacki, 208 Pa. Superior Ct. 523, 530-531, 224 A. 2d 80, 84 (1966). Accordingly, we have applied the Pennsylvania guarantee against double jeopardy in capital cases only, in accordance with our interpretation of that guarantee. See, e.g., Commonwealth v. Simpson, 310 Pa. 380, 165 A. 498 (1933). The federal guarantee, however, is now applicable to the states. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056 (1969). Its application to noncapital, as well as capital, cases is of necessity also binding upon us. Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).
The federal rule with respect to whether one trial may be terminated and the defendant tried again without violating the guarantee has been stated as follows: “We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice wouDd otherwise be defeated.” United States v. Perez, 9 Wheat. 579, 580 (1824). A similar rule has been followed by our courts in capital cases. See, e.g., Commonwealth v. Simpson, supra.
Such “manifest necessity” has been found, for example, where the jury has been unable to reach a verdict. United States v. Perez, supra. It has been found where the court determines, during the course of the
When a district attorney fails to prepare his case well, no manifest necessity arises to warrant termination of trial. It is incumbent upon him to be reasonably prepared, so that all the necessary evidence will be presented and his argument with respect thereto will be logical and complete. The trauma of trial, as well as the expense of a second trial, warrant our requiring that the district attorney present his case well the first time.
I would reverse the order of the lower court and discharge appellant.
Lead Opinion
Opinion
Order affirmed.