Mccreary et al. v. Commonwealth

• Decision Date: 01 January 1857
• Citation: 29 Pa. 323
• Parties: McCreary et al. versus Commonwealth.
• Court: Pennsylvania Supreme Court

Page 323

29 Pa. 323

McCreary et al. versus Commonwealth.

Supreme Court of Pennsylvania.

ERROR to the Court of Oyer and Terminer of Washington county.

Montgomery and Gibson, for plaintiffs in error.—The penalty for burglary, under the Act of 31st May, 1718, was death, and so continued until April 23, 1829, when the punishment was modified to imprisonment in the penitentiary: Jacobs v. The Commonwealth, 5 S. & R. 316; Commonwealth v. Cook, 6 S. & R. 577; Com. v. Clue, 3 Rawle 498; Peifer v. Com., 3 Harris 468. In some of the states it has been held that a prisoner was not in jeopardy until he was convicted: 3 Story on Const. 659: Com. v. Olds, Supreme Court of Kentucky, 1822; People v. Godain, 18 Johns. 187; Chitty on Crim. Law, vol. 1, 628; Rex v. Wolf, 1 Chitty's Rep. 401. Under the Act of 31st May, 1718, the trial of a case for burglary is the trial of a capital crime. The authorities on the subject "once in jeopardy" will be found fully collated in Wharton's Crim. Law under that title: Williams v. Com., 3 Grat. 568; Com. v. Fells, 9 Leigh 613; State v. Garrigues, 1 Hayward 241; Speer's Case, 1 Dev. 49; State v. Ephraim, 2 Dev. & Bat. 162; State v. Waterhouse, Yerg. 278; Ned v. The State, 7 Porter 187; State v. Abram, 4 Ala. 272; Com. v. McCall, 1 Virginia Cases; Weeber v. Com., 4 Rob. 756; McLane v. The State, 10 Yerg. 241; Monroe v. The State, 5 Geo. 75; Jarnagin v. The State, 10 Yerg. 529; McLane v. The State, 9 S. & M. 465.

Wilson, District Attorney, and Hart, for the Commonwealth.— McFadden v. Com., 11 Harris 16; Story on the Const. § 930; United States v. Haskell, 4 Wash. C. C. 409; United States v. Perez, 9 Wheaton 589; Wharton's Am. Crim. Law, §§ 581, 83, 84; Com. v. Bowden, 9 Mass. 194; People v. Godwin, 18 Johns. 187; Moore v. The State, 1 Walker 134; State v. Stone, 2 Scan. 326; Com. v. Olds, 5 Little 140; Com. v. Cook, 6 S. & R. 579; Com. v. Clue, 3 R. 498; Com. v. Peifer, 3 Harris 468; McFadden v. Com., 11 Harris 12; People v. Douglass, 4 Cowen 26; State v. Prescott, 7 N. H. 290; Wh. Crim. Law, § 3120; Franklin v. The State, Sup. Ct. Ala., 15 Am. Law Reg.

The opinion of the court was delivered by ARMSTRONG, J.

William McCreary and William Donnelly, alias Connelly, were indicted in the Court of Oyer and Terminer of Washington county, for burglary, committed in the dwelling-house of William Burton, and stealing therefrom his personal property, of considerable value.

On the 20th May, 1857, they were put on their trial, the evidence heard, the case argued by counsel, and the jury, after receiving the charge of the court, retired to deliberate on their verdict. After some time they came into court, and said they were unable to agree, and they were therefore discharged by the court.

At August Term of the same year, the defendants were again called up for trial, when they put in a special plea, stating the facts in a formal manner, alleging that they had "once been in jeopardy for the same offence," that the jury had been discharged without their consent, and claiming that they could not be again put on trial for the same cause. To this plea the Commonwealth's counsel demurred, and the court "overruled the plea of defendants on the ground that the jury on the former trial, after having retired, came into court, and declared their inability to agree, and were discharged by the court." The defendants were ordered to answer over, and a jury being called, the trial proceeded, and the defendants were convicted.

The special plea of defendants is based on the tenth section of the 9th article of the Constitution of Pennsylvania, which says, "No person shall, for the same offence, be twice put in jeopardy of life or limb." The counsel for the plaintiffs in error, in support of his argument for the application of this clause of the constitution to the case of burglary, invokes the aid of the decisions of the Supreme Court of our own state. But none of them afford a precedent for the point made here. 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. In The Commonwealth v. Cook and Others, 6 S. & R. 577, the defendants were indicted for murder — and so in The Commonwealth v. Clue, 3 Rawle 498, the language of the constitution is very imperative, "No person shall, for the same offence," &c. Yet it is not so inexorable as to shut out a practical construction demanded by necessity, and the safety of the community. Hence it is, that although now settled that the discharge of a jury in a capital case, against the consent of the prisoner, works his acquittal, yet the rule is subject to exceptions, "as where the prisoner has tampered with the jury, or has contrived to keep back the witnesses for the prosecution;" where the prisoner during the trial becomes insane; or where a juror dies. These are of a class of exceptions referred to in Cook's case, where the whole subject was most learnedly discussed by Chief Justice TILGHMAN and Justice DUNCAN, and the case is only referred to to show that it was once doubted whether the discharge of a jury, even in a capital case, was equivalent to the acquittal of the prisoner, and if doubted in such case, we may well hesitate before we allow to the guilty the use of such a shield to screen him from the punishment due to lesser offences.

But it is contended by counsel, that as by the Act of the 31st of May, 1718, burglary was punishable with death, and as the second section of that act provides that "the inquiries and trials of all petty treasons, misprision of treason, murder, manslaughter, and homicides, and all other crimes and misprisions, as by this act or any other Act of Assembly of this province are or shall be made capital, or felonies of death, which have been or shall be done, committed, perpetrated, or happen within this province. shall be as by this act directed;" and therefore if a jury could not be discharged in a capital case, they could not now in burglary, although that offence is no longer a felony of death. If it were, the argument would be conceded. The section provides that "the inquiries and trials" of offences which are or shall be made capital, shall be as by this act directed. This must be considered in reference not only to the crimes enumerated, but to the punishment annexed to them. If, after the passage of this act, a crime not then punishable with death was subsequently made so, the party charged would be entitled to all the advantages which the rules of trial in a capital case would legally permit; and by the same rule, if...