Com. v. Gallo
| Decision Date | 01 June 1962 |
| Citation | 344 Mass. 453,182 N.E.2d 817 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | COMMONWEALTH v. Joseph A. GALLO (three cases). |
William P. Homans, Jr., Boston (Walter Powers, Jr., Boston, with him), for defendant.
J. Blake Thaxter, Jr., Asst. Dist. Atty., for Commonwealth.
Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER, and SPIEGEL, JJ.
Following the decision in Gallo v. Commonwealth, Mass., 179 N.E.2d 231, 1 which reversed the conviction of the defendant and remanded the cases for further proceedings, the indictments were set down for trial in the Superior Court. The defendant entered pleas of autrefois acquit and autrefois convict, and moved that the indictments be dismissed on the ground that any further trial would place him in jeopardy for the second time. See G.L. (Ter. Ed.) c. 263, §§ 7, 8; Commonwealth v. DiStasio, 297 Mass. 347, 352-355, 8 N.E.2d 923, 113 A.L.R. 1133; Commonwealth v. Azer, 308 Mass. 153, 155-157, 31 N.E.2d 549; Commonwealth v. Burke, 352 Mass. 144, 172 N.E.2d 605. The cases are reported without decision upon the indictments, a stipulation, and the pleas. G.L. c. 278, § 30A, inserted by St.1954, c. 528.
The stipulation is taken almost word for word from the earlier decision (179 N.E.2d 231 2). The defendant was convicted on three indictments, respectively for armed robbery, for burglary being armed and making an assault, and for conspiracy. He was sentenced on the first two, and the third was placed on file. During the course of the trial, one of the twelve jurors became ill and was excused. The defendant's counsel agreed to continue with eleven jurors. No written waiver of the right to be tried by a jury of twelve nor any written request for trial by the remaining members of the jury was signed by the defendant and filed with the clerk. The judge informed the jury in open court that counsel agreed to proceed with eleven jurors. The defendant brought writ of error. We held that the Superior Court had jurisdiction to continue with the trial, but that the oral waiver was invalid under G.L. c. 234, § 26A, inserted by St.1945, c. 428, § 1. The rescript was, This, without more, meant that the defendant could be, and should be, retried on the indictments upon which there were convictions reversed in the prior case. Giles v. Commonwealth, 339 Mass. 410, 159 N.E.2d 536.
The grounds advanced by the defendant for escaping trial are unsound. He states in his brief, 'Although the concept of fairness to the Commonwealth might well be outraged by a rule which would foreclose further prosecution of a person whose conviction had been reversed because of an erroneous instruction to the jury or because of the admission or exclusion of evidence, it is not, it is submitted, unfair to the Commonwealth to protect the defendant against repeated inconclusive trials, where he has had no part in the error which caused termination of the first.' Assuming that the defendant had no part in orally agreeing to a trial by eleven jurors, accuracy compels the statement that his counsel did. Moreover, the first trial was not inconclusive. It ended in the defendant's conviction, which was reversed for failure to comply with the technical requirements of a statute imposed for his benefit. But entirely apart from this fact we are clearly of opinion that fairness to the Commonwealth and its people would be grievously outraged by sending the defendant back to the Superior Court for the sustaining of his pleas. That the prior conviction was set aside on writ of error does not establish double jeopardy. See Commonwealth v. Murphy, 174 Mass. 369, 371-372, 54 N.E 860, 48 L.R.A. 393, affd. sub nom. Murphy v. Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711; Commonwealth v. Burke, 342 Mass. 144, 172 N.E.2d 605; Green v. United States, 355 U.S. 184, 189, 78 S.Ct. 221, 2 L.Ed.2d 199. Compare Commonwealth v. Azer, 308 Mass. 153, 156, 31 N.E.2d 549; Giles v. Commonwealth, 339 Mass. 410, 415, 159 N.E.2d 536.
The case falls within what was said by Chief Justice Shaw...
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Juvenile, In re
...barred by double jeopardy principles, because the petitioner is himself seeking such reconsideration. See Commonwealth v. Gallo, 344 Mass. 453, 455, 182 N.E.2d 817 (1962); United States v. Tateo, 377 U.S. 463, 465--466, 84 S.Ct. 1587, 12 L.Ed.2d 448 10 The result we have reached has, howeve......
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D'Urbano v. Com.
...illegal trial in a court having jurisdiction, the defendant who establishes the fact on a writ of error may be retried. Commonwealth v. Gallo, Mass., a 182 N.E.2d 817, and cases cited. Hicks v. Commonwealth, Mass., 185 N.E.2d 739. b See In the Matter of Smigelski, 30 N.J. 513, 525, 154 A.2d......
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