Commonwealth v. Baker

• Decision Date: 07 January 1964
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Leroy BAKER.
• Court: Pennsylvania Supreme Court

196 A.2d 382

413 Pa. 105

COMMONWEALTH of Pennsylvania, Appellant, v. Leroy BAKER.

Supreme Court of Pennsylvania.

January 7, 1964.

Arlen Specter, Asst. Dist. Atty. Philadelphia William H. Wolf, Jr., Asst. Dist. Atty., Arlen Specter, Asst Dist. Atty., Chief, Litigation Division, F. Emmett Fitzpatrick, Jr., First Asst. Dist. Atty., James C. Crumlish Jr., Dist. Atty., Philadelphia, for appellant.

Donald J. Goldberg, Philadelphia, for appellee.

Before BELL C. J., and MUSMANNO, JONES, COHEN, O'BRIEN and ROBERTS, JJ.

BELL, Chief Justice.

This is an appeal by the Commonwealth of Pennsylvania from the Order of the Court of Oyer and Terminer and General Jail Delivery of Philadelphia County, sustaining defendant's plea of double jeopardy to a charge of murder in the first degree.

John Leroy Baker, the defendant, was charged in Bill of Indictment No. 681 of April Sessions, 1961, with the murder of his friend, Lulu Mayo. He was accused of killing her at her place of employment by firing five shots from a revolver into her body and causing her death. The case was called for trial on December 11, 1961. On December 13, 1961, a jury was impaneled and sworn and the case was tried by a jury and Judge. On December 19th, the trial Judge charged the jury; and at the conclusion of his charge, viz., at 4:34 p. m., the case was given to the jury for deliberation. The record is silent as to exactly what occurred thereafter, ^[1] but it was assumed by counsel for both appellant and appellee that the jury had its dinner and after some deliberation retired for the might. The following morning the jury resumed deliberation of the case. At 11:27 a. m. the jury returned to the Courtroom for further instructions and at 12:07 p. m. retired to resume its deliberations. Approximately forty-five minutes later, the jury returned to the Courtroom and informed the trial Judge that it was in disagreement. Thereupon, the following colloquy took place:

'THE COURT: Ladies and gentlemen of the jury, you have had this case since yesterday afternoon. I know you have given it your very best consideration. The length of time we have taken to try this case ordinarily would have been two weeks and you have been here nine days now.

'May I ask you, Madam Forelady, it is now five minutes of one. If you went out and had lunch and tried again, because we are supposed to suggest to you that you must remain and deliberate as long as you can hope that you might arrive at agreement, do you think if you did that, you could reach a verdict?

'Do you think that would be helpful?

'THE FORELADY: I don't think it would be helpful, Your Honor.

'THE COURT: Do you think you are hopelessly divided?

'THE FORELADY: Yes, Your Honor.

'THE COURT: Do you think it is physically and mentally impossible to come to an agreement?

'THE FORELADY: Yes, I do, Your Honor.

'THE COURT: Then I presume you want me as the judge to say this is a mistrial, that you just cannot come to an agreement.

'THE FORELADY: I am afraid so.

(Side bar discussion with counsel.)

'THE COURT: Ladies and gentlemen of the jury, I must accede to your request and I will have to declare this to be a mistrial. Stand the defendant up.

(Defendant at the bar of the Court.)

'THE COURT: Leroy Baker, you have heard the statement of the forelady. The Court declares this case against you to be a mistrial and you will stand trial at another time. Take the defendant out.'

Thereupon the trial Judge, over the objection of the Commonwealth and without either the consent or the objection of the defendant, declared a mistrial and discharged the jury.

On June 3, 1963, defendant was again brought to trial on the same bill of indictment for murder. Defendant forthwith filed a plea of 'double' jeopardy or, as it is sometimes called, 'former' jeopardy. ^[2] The lower Court sustained this plea of double jeopardy as to the charge of murder in the first degree only, and continued the trial in order that the Commonwealth might take this appeal.

Although no question has been raised as to appealability, we have considered the question and hereby decide that an appeal by the Commonwealth will lie. Commonwealth v. Simpson, 310 Pa. 380, 165 A. 498; cf. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304.

Before discussing the various contentions which have been made by appellant and by appellee, we note that both agree (a) that defendant is not entitled to be forthwith discharged, and (b) he can be tried at least for murder in the second degree and for voluntary manslaughter. This was clearly and definitely and specifically decided in Commonwealth v. Simpson, 310 Pa. 380, 165 A. 498, supra. Although the Commonwealth and the defendant agree that the defendant can be tried for second degree murder and voluntary manslaughter, they differ on the question of whether he can again be tried for murder in the first degree. We believe another related question is necessarily involved, viz., if Baker is tried and convicted of murder in the first degree, can he be sentenced to more than life imprisonment?

The Commonwealth contends (1) that the trial Judge properly exercised his discretion in discharging the jury and (2) that defendant tacitly consented to the discharge of the jury, and for each of these reasons defendant's plea of former jeopardy should have been denied.

Article, I, Section 10, of the Constitution of Pennsylvania, P. S., pertinently provides: '* * * No person shall, for the same offense, be twice put in jeopardy of life or limb * * *.' This Court, in Commonwealth v. Simpson, 310 Pa. pages 384, 385, 387, 165 A. at pages 499, 500, supra, construed this Section of the Constitution as follows:

'* * * May a defendant be tried a second time on an indictment charging murder when the commonwealth seeks conviction not for murder of the first degree but for murder of the second degree or manslaughter only? In Hilands v. Com., 111 Pa. 1, 2 A. 70, the jury in a murder case, after being sworn, was discharged by the trial judge. The defendant was again arraigned and convicted of first degree murder. It was held that this was double jeopardy as he had twice been put in jeopardy of life. * * * In Com. v. Tenbroeck, 265 Pa. 251, 108 A. 635, the defendant was indicted and tried for murder, and convicted of and sentenced for murder of the second degree. Pending the trial, the jury was permitted to separate, which, it was urged, compelled a reversal. We said (page 256 of 265 Pa., 108 A. 635, 637), 'As the conviction was of the second degree the case ceases to be a capital one, and the temporary separation of the jury, of which complaint is made, becomes unimportant.'

'* * * 'The first observation to be made concerning the clause in question is that it applies only to capital cases. ^[3] This was not the fact anciently, when punishment might take the form of mutilation of one's members, or their endangerment, as in trials by battle, for, in such cases, when placed on trial he was in jeopardy of his limbs without also being in jeopardy of his life. The cases in which the protection of the clause may be invoked are those in which at the time the crime was committed, it was punishable by death. Thus crimes which at common law were capital, but which under our statutes are not so punished, are not within the meaning of the provision. If at some future time the punishment for murder should be made life imprisonment in all cases, the clause in question would be of no service, except because of the possibility of a return to capital punishment.' For these latter statements there is the express authority of McCreary v. Com., 29 Pa. 323, 325.

'* * * But the fact, the reality of the matter, is that there is now no jeopardy of limb, as there was when the expression first came into the law, when most, if not all, of the major felonies were punishable with death or mutilation. The words today, so far as punishment is concerned, are without application to anything which exists.

'* * * in McCreary v. Com., supra, the defendants were being tried for burglary. When it appeared the jury was unable to agree on a verdict, it was discharged; subsequently the accused were again put on trial. Their defense was former jeopardy. The plea was overruled, and they were convicted. We affirmed the sentence, in the opinion making it clear that the constitutional provision applied only to capital offenses, saying: 'It is not denied that the clause applies to cases of felony of death; but no case has been cited showing its application to crime of an inferior grade. * * * It [the constitutional provision] is not so inexorable as to shut out a practical construction demanded by necessity, and the safety of the community. * * * That it applies to capital cases is on all hands conceded, for both 'life and limb' are there in jeopardy. But this cannot be said when imprisonment alone is the punishment. There life is surely not jeopardized. But if the construction asked for be tolerated, that where imprisonment places 'life or limb' in jeopardy, convictions for assault and battery might with equal propriety be embraced. * * * We find them coupled together in the constitution, and all we can do is to give them a rational and practical interpretation.' * * *

'* * * We think, however, our present construction comports more with sound public policy and with the necessity, now existing in dealing with lawbreakers, for a reasonable interpretation of the criminal law. Hilands v. Com., 111 Pa. 1, 2 A. 70, and Com. v. Fitzpatrick, 121 Pa. 109, 15 A. 466, are overruled so far as they are in conflict with this opinion.

'The order of the court below is reversed, the demurrer of the commonwealth is sustained in part, the plea of defendant is sustained so far as first degree murder is concerned,...