'Other testimony taken at this hearing (Craig) had to do with a practice at the jail severely condemned and criticized by this Court and now discontinued. When it was bedtime for the prisoners confined in the jail, the turnkey on duty passed out aspirin tablets and barbiturates, namely, phenobarbital to prisoners requesting the same. The latter, being in one-half grain tablets were sometimes not consumed but accumulated. Sometimes the pills were acquired by non-users and later given to other prisoners or used for barter or exchange. These were administered without doctor's prescription or order and without supervision or order and without supervision. 'This untenable situation first came to the attention of the Court during the murder trial of George W. Craig when that defendant appeared in Court in such a state of stupefaction that he was unable to take the witness stand and testify in his own behalf or assist his attorneys in handling his defense. His trial had to be interrupted and continued. Later this Court granted a new trial, assigning the use of the barbiturates as the reason therefore.'
After conviction by the jury and recommendation of a life sentence, counsel for Craig filed a motion for a new trial. The motion was granted as a matter of course, and when the case was tried some time in September 1960, aspirin and phenobarbital were no longer dispensed by the jail wardens. At the second trial, the defendant was again found guilty of murder in the first degree and by separate verdict under the Split Verdict Act,
the jury after hearing further evidence fixed the penalty as life imprisonment.
The Supreme Court has long favored the rule of discretion that a trial judge may require a second trial on the same issues where his failure to do so would defeat the ends of justice. Wade v. Hunter, 336 U.S. 684, 69 S. Ct. 834, 93 L. Ed. 974 (1949). At times the valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him may be subordinated to the public interest -- when there is an imperious necessity to do so. Wade v. Hunter, supra, 336 U.S. 690, 69 S. Ct. 834.
The very fact that a second jury has been empaneled and sworn does not in itself constitute double jeopardy. Courts have authority to discharge a jury from giving any verdict, whenever in their sound discretion, taking all circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. Wade v. Hunter, supra. This is true also where there exist such circumstances or emergencies which by diligence could not have been averted and which would thwart the administration of justice. Himmelfarb v. United States, 9 Cir., 175 F.2d 924. So that where a jury trial is interrupted and the jury is excused and separated before it has rendered a verdict, under circumstances necessary for the protection of the defendant, even though without the defendant's action and express consent, there is no violation of the double jeopardy provisions of the Constitution. Gori v. United States, 1961, 367 U.S. 364, 81 S. Ct. 1523, 6 L. Ed. 2d 901; Downum v. United States, C.A.5, 1962, 300 F.2d 137, cert. granted 371 U.S. 811, 83 S. Ct. 54, 9 L. Ed. 2d 54; Killilea v. United States, 1 Cir., 287 F.2d 212, cert. den. 366 U.S. 969, 81 S. Ct. 1933, 6 L. Ed. 2d 1259, rehearing denied 368 U.S. 872, 82 S. Ct. 64, 7 L. Ed. 2d 73.
But in this case, the jury did arrive at a verdict and the grant of a new trial by Judge Shumaker was well within the precautionary measure as dictated by the circumstances of the case -- and especially after a motion was made by counsel for the defendant for a new trial. The trial judge's action was done with the view of procuring a fair trial for the defendant; and where a court concludes, upon information, that circumstances make it impossible for the jury to act with the independence and freedom on the part of each juror requisite to a fair trial of the issue between the parties, it is within the authority of the court to order the jury to be discharged and to put the defendant on trial by another jury. The defendant is not thereby put twice in jeopardy. Simmons v. United States, 1891, 142 U.S. 148, 12 S. Ct. 171, 35 L. Ed. 968.
In any event, the defendant may not ask for a new trial where he has been once convicted and after the grant of a new trial lay claim that the grant of a new trial placed him twice in jeopardy. United States of America ex rel. Melton v. Hendrick, 1963, 218 F.Supp. 293. The fact that the trial judge may have agreed with the relator that a new trial was in order as a matter of justice will not avail the relator in laying claim to double jeopardy. Our Court of Appeals for the Third Circuit affirmed this holding in 330 F.2d 263, when at page 265 it said that it agreed 'with the District Court's holding that under Pennsylvania law Melton 'waived his protection against being tried again for the same offense by his application for a new trial, since the court considers that the first jeopardy in which he was placed continues until the time of imposition of legal sentence at a subsequent trial."
The question may be here raised as to whether or not there has been an exhaustion of the state remedies by the relator prior to the filing of the petition here. The record indicates that the relator's counsel, Cingolani, had believed it futile to file an appeal to the Pennsylvania appellate courts. There is no question of Mr. Cingolani's ability and standing in the community. It was a legal question for determination between him and his client. Nevertheless, this does not prevent a determination being made here in accordance with Footnote 5 as presented in Melton, supra, to this effect:
'5. In Note 7, 218 F.Supp. at p. 296, the District Court expressed doubt as to whether Melton had exhausted his state remedies with respect to his contention that he had been subjected to cruel and unusual punishment in violation of federal constitutional rights. On that score we need only say that in In re Ernst's Petition (3 Cir.), 294 F.2d 556, pp. 561, 562 (1961), cert. den. 368 U.S. 917, 82 S. Ct. 198, 7 L. Ed. 2d 132 we expressly held that: 'Denial of a state prisoner's petition for habeas corpus on its merits remains permissible under Section 2241 even though state remedies may not have been exhausted."
Since the relator's petition, record and evidence as submitted here do not show any violation of our constitutional provisions, the petition for the issuance of a Writ of Habeas Corpus will be denied.