Commonwealth v. Kent

• Decision Date: 08 November 1946
• Citation: 355 Pa. 146,49 A.2d 388
• Parties: Commonwealth v. Kent, Appellant
• Court: Pennsylvania Supreme Court

49 A.2d 388

355 Pa. 146

Commonwealth v. Kent, Appellant

Supreme Court of Pennsylvania

November 8, 1946

Argued September 30, 1946.

Appeal, No. 106, March T., 1946, from judgment of O. & T Somerset Co., Sept. T., 1944, No. 3, in case of Commonwealth v. James Henry Kent. Judgment affirmed

Indictment charging defendant with murder. Before BOOSE, P.J.

Verdict of guilty and judgment of sentence thereon. Defendant appealed.

The assignments of error are overruled and the judgment is affirmed, and the record is remitted in order that the sentence be carried out.

Archibald M. Matthews , for appellant.

Thomas F. Lansberry, District Attorney, and Paul E. C Fike , for appellee.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES JJ.

OPINION

MR. JUSTICE LINN

This appeal is from conviction of murder of the first degree with sentence of life imprisonment. All the elements of first degree murder appear. The appellant complains that (1) the Commonwealth's demurrer to his plea of former jeopardy was sustained; (2) his demurrer ^[1] to the Commonwealth's evidence was overruled; (3) that the evidence is insufficient to sustain the verdict and (4) that his motion for a new trial was refused.

1. This was the second trial, the jury, in the first trial, having been discharged without reaching a verdict. In support of his plea of former jeopardy the appellant contended that the jury in the first trial was discharged for a reason legally insufficient in this Commonwealth. The constitution provides, "No person shall, for the same offense, be twice put in jeopardy of life or limb." Art. I, sec. 10. There are many exceptions to the general statement that a person once in jeopardy may not again be put in jeopardy for the same offense. See Com. v. Cook , 6 S. & R. 577, 579 (1822); Com. v. Barille , 270 Pa. 388, 113 A. 663; Con v. Davis , 266 Pa. 245, 110 A. 85; Thompson v. U.S., 155 U.S. 271, 274; Kirk: Jeopardy During the Period of the Year Books, 82 U. of P. Law Rev. 602, 603; Administration of the Criminal Law (Am. Law Inst.) Tentative Draft No. 2, p. 36 to p. 56. The question in this case is, Was it absolutely necessary to discharge the jury before verdict, the defendant not having expressly consented? The answer depends on a fact which it was necessary that the judge should find from the evidence then before him. He was not required to discharge the jury unless satisfied by the evidence that such necessity appeared. He considered the evidence before him and stated the facts in an opinion from which we quote. "The case was first tried during the September Term of Court, 1944, and was submitted to the jury at the conclusion of the Court's charge, on Saturday, September 16th, about 3:45 p.m. The jury immediately entered upon their deliberations, and about 11 o'clock in the night of that day they reported that they had not agreed upon a verdict, and would not likely agree upon a verdict for some time, if at all. Thereupon, the Court suggested that the jury retire for the night. On Sunday morning, September 17th, their deliberations were resumed and continued throughout the day and well into the night, with no change in the result. On Monday morning, September 18th, after the deliberations had extended over forty hours, the jury informed the officers in charge that they were hopelessly deadlocked and would not be able to agree upon a verdict, with the request that this information be reported to the Court. Upon receiving this information, and in advance of the regular hour for convening Court, the District Attorney and the defendant's counsel were called into the Judge's Chambers and informed of the situation. After a consultation between Court and Counsel, it was agreed, because of the illness of one or more of the jurors and their physical exhaustion, that it would be futile to require the jury to deliberate longer, as it would probably result in a coerced verdict, which would require the granting of a new trial in the event of a conviction: Miller v. Miller, 187 Pa. 572. Under the facts and circumstances then existing, both the District Attorney and the defendant's counsel agreed and consented that the jury should be discharged....

"Assuming, however, that neither the defendant nor his counsel acquiesced and consented to the discharge of the jury, there was a more impelling and imperative reason creating an absolute necessity for the discharge of the jury. During the trial of the case, which extended over a period of four days, one of the jurors became seriously ill, which required the care and attendance of a physician on at least two occasions. While he was afforded some relief, the cause of his illness persisted, and this, together with the physical exhaustion and the inability of the jury to agree upon a verdict within a reasonable time, incapacitated him from performing the duties of a juror in a case of such gravity. A second juror reported that because of the condition of his health and physical exhaustion, he could not hold out much longer. A verdict consented to and rendered necessary because of physical exhaustion is not a true, just and conscientious verdict; and affords ground for granting a new trial: Com. v. Lutz , 200 Pa. 226...."

We think the illness of the jurors in the circumstances so found brought the case within the rule authorizing the judge to discharge the jury in a capital case without resulting acquittal of the defendant: Com. v. Davis , 266 Pa. 245, 247, 110 A. 85.

2. The second and third complaints that appellant's demurrer was overruled and his request for binding instructions was denied may be considered together. As it was conceded that the crime was murder of the first degree, the only question was whether the evidence was sufficient to convict the defendant. No eye-witnesses to the shooting appeared. The jury dealt with the circumstances disclosed. The burden of appellant's argument on this phase of the appeal was that he was convicted on testimony, alleged to be false, given by his mistress and by a very bad criminal record ^[2] properly admitted in evidence to enable the jury to fix the penalty in case of conviction. The evidence was relevant, the real of apparent contradictions were for the jury. The case was fairly tried, and we may add that it is not without significance that no exceptions to the charge were taken.

George Kern, a resident of Johnstown, left his home in his automobile on Thursday evening, December 9, 1943, at about eight o'clock. His sister, who was his housekeeper testified that he then had a "diamond ring on" and "quite a roll of money." Next morning, December 10, his car was found in a certain parking lot in Johnstown, unlocked, with the key in the ignition. It does not appear who placed the car in the parking lot. This lot was 13-2/10 miles from the place where Kern's body was found. The appellant was well acquainted with Kern. On Saturday afternoon, December 11, at about 1:30 o'clock, Kern's body was found by two deer hunters in an open section of woodland in Somerset County near a public road. This point was 9 miles from defendant's residence. The hunters testified "that they found the body partially covered with snow over the top of his clothing. His body was lying on the abdomen with the left hand or arm under the body and the right arm across the center of the back. His hat was off, lying about five feet from the body and his glasses were partially knocked off. When the body was lifted or moved over, pools of blood were found under the head and face and six bullet wounds upon his body, four in the head, one in the back of the neck and one in the back of the body. All of the bullet marks, except the one in the back, were heavily powder burned, indicating that the gun was close to his head and body when the bullets were fired. His trouser pockets were turned out and rifled, his money was gone, and his...