517 F.2d 993 (3rd Cir. 1975), 74-2140, United States ex rel. Stewart v. Hewitt

Docket Nº:74-2140.
Citation:517 F.2d 993
Party Name:UNITED STATES of America ex rel. Frederick Charles STEWART, Appellant, v. Lowell D. HEWITT, Warden.
Case Date:June 10, 1975
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 993

517 F.2d 993 (3rd Cir. 1975)

UNITED STATES of America ex rel. Frederick Charles STEWART, Appellant,

v.

Lowell D. HEWITT, Warden.

No. 74-2140.

United States Court of Appeals, Third Circuit

June 10, 1975

Argued April 14, 1975.

Page 994

Norman M. Yoffe, Harrisburg, Pa., for appellant.

LeRoy S. Zimmerman, Dist. Atty., Marion E. MacIntyre, Deputy Dist. Atty., Richard A. Lewis, Harrisburg, Pa., for appellee.

Before SEITZ, Chief Judge, and ROSENN and WEIS, Circuit Judges.

OPINION

SEITZ, Chief Judge.

This case is before us on appeal from the district court's denial of a petition for habeas corpus relief based on the Double Jeopardy provision of the 5th Amendment.

On March 18, 1961, appellant (hereafter "defendant") was convicted in the Pennsylvania Court of Common Pleas of the murder of his wife. In state post conviction proceedings, the Pennsylvania Supreme Court, on October 4, 1972, reversed defendant's 1961 conviction and ordered a new trial. The court based its decision on the ground that the trial court had erred in 1961 when it denied defendant's motion for withdrawal of a juror even though apprised of the fact that defendant's father-in-law was on the panel of jurors from which the jury that subsequently convicted defendant was selected.

Page 995

On April 9, 1973, defendant's case was again called for trial. After the jury had been selected and impanelled, the trial judge was informed by the prosecutor that defendant's father-in-law was employed as a tipstaff during the current term of the Court of Common Pleas. As a tipstaff, it was his sworn duty to attend to the needs of and to care for the panel of jurors serving during the term. Defendant's trial had been set for the first day of the second week of the court's term. The Common Pleas judge noted that defendant's father-in-law had consequently been "exercising . . . his sworn duty of attending to the needs and care and so forth of the panel of jurors," for over a week.

The court reconvened shortly after the judge was apprised of this information, and defendant and his counsel were informed of this turn of events. At that time, the judge asked defendant's counsel whether he had any motions to make. After consultation with his client, defense counsel indicated that defendant did not desire to make any motions, and, upon being asked whether he wished to proceed with the trial, defendant responded in the affirmative. Thereupon the judge declared a mistrial sua sponte. The question on this appeal is whether the trial judge acted within his discretion in declaring a mistrial.

Preliminarily, we are satisfied that defendant met his burden of exhaustion of state remedies before presenting his double jeopardy claim by way of a petition for a writ of habeas corpus in the federal court. See United States ex rel. Keith Webb...

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