Appeal, No. 264, Jan. T., 1963, from order of Court of Oyer and Terminer and General Jail Delivery of Philadelphia County, April T., 1961, No. 681, in case of Commonwealth of Pennsylvania v. Leroy Baker. Order affirmed.
William H. Wolf, Jr., Assistant District Attorney, with him Arlen Specter, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellant.
Donald J. Goldberg, with him Michael J. Rotko, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, O'brien and Roberts, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
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,*fn1 but it was assumed by counsel for both appellant and appellee that the jury had its dinner and after some deliberation retired for the night. 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, 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.*fn2 The lower Court sustained this plea of double jeopardy as to the charge of murder in the first degree ...