Appeal from order of Court of Common Pleas of Butler County, March T., 1965, No. M.S.D. 31, in case of Commonwealth ex rel. Donald H. Montgomery v. David N. Myers, Superintendent.
Donald H. Montgomery, appellant, in propria persona.
Robert F. Hawk, Assistant District Attorney, and John H. Brydon, District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result. Mr. Justice Cohen took no part in the consideration or decision of this case.
The first question presented on this appeal is whether, in the particular circumstances of this record, appellant's conviction of murder in the first degree, following the termination of a prior trial by the declaration of a mistrial, on appellant's motion, violates the prohibitions against double jeopardy contained in either the Federal or State Constitutions.*fn1 The court below, in dismissing appellant's petition for a writ of habeas corpus, concluded that his conviction was without constitutional objection. We are of the view that the court reached the correct conclusion and affirm its action.
In June 1962, appellant was brought to trial before a jury in the Court of Oyer and Terminer of Butler County on consolidated indictments charging murder, arson, burglary and armed robbery. During the course of the trial, the district attorney, in his summation, referred to appellant as a "pro" and as an "old pro", whereupon counsel for appellant moved for the withdrawal of a juror on the ground that such reference had prejudiced appellant's right to a fair trial. The motion was granted and a mistrial declared.
Upon being brought to trial again, appellant moved the court to dismiss the indictment charging murder on the ground that to try him again would constitute double jeopardy.*fn2 The motion was denied and appellant
was retried and found guilty of murder in the first degree and sentenced to life imprisonment.*fn3 He now attacks the conviction in which the second trial resulted.
In considering appellant's contentions, we note at the outset that existing precedent holds that the Fifth Amendment prohibition against double jeopardy is not a limitation on the power of a state to reprosecute a criminal defendant, that power being subject to the less confining restraint of the Due Process Clause of the Fourteenth Amendment. See Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676 (1959); Ciucci v. Illinois, 356 U.S. 571, 78 S. Ct. 839 (1958) (per curiam); Hoag v. New Jersey, 356 U.S. 464, 78 S. Ct. 829 (1958); Brock v. North Carolina, 344 U.S. 424, 73 S. Ct. 349 (1953); Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149 (1937). However, recent decisions*fn4 of the Supreme Court of the
United States, holding provisions of the Fifth and Sixth Amendments, previously viewed as restrictions on the power of the federal government only, as binding on the states through the Due Process Clause of the Fourteenth Amendment, have cast some doubt on the continuing vitality of these precedents. See Comments, Double Jeopardy: Its History, Rationale and Future, 70 Dick. L. Rev. 377 (1966); Notes, Double Jeopardy: The Reprosecution Problem, 77 Harv. L. Rev. 1272, 1286-89 (1964); People v. Laws, 29 Ill. 2d 221, 193 N.E. 2d 806 (1963); cf. United States ex rel. Hetenyi v. Wilkins, 348 F. 2d 844, 849-56 (2d Cir. 1965). We find it unnecessary to anticipate the Supreme Court on this question, however, since we are of the view that even were the Fifth Amendment, with the body of federal decisional law which has delineated its contours, held to be presently binding on the states, no transgression thereunder may be said to have occurred by reason of appellant's reprosecution.*fn5 Similar considerations lead us also to conclude that appellant's conviction is not precluded by the double jeopardy provision of Article 1, § 10 of the Constitution of this Commonwealth.
Under the double jeopardy provision of the Constitution of Pennsylvania the mere fact that a defendant is placed on trial before a competent tribunal does not preclude reprosecution if the proceeding fails to terminate in a verdict. See Commonwealth v. Baker, 413 Pa. 105, 115, 196 A.2d 382, 387 (1964) (dictum); Commonwealth v. Kent, 355 Pa. 146, 49 A.2d 388 (1946); Commonwealth v. Davis, 266 Pa. 245, 110 Atl. 85 (1920); Commonwealth v. Christopher, 168 Pa. Superior Ct. 592, 80 A.2d 863 (1951) (per curiam). Such construction of our constitution is consistent with the view taken of the proscription against double jeopardy contained in the Fifth Amendment and the constitutions of other jurisdictions. See, e.g., United States v. Tateo, 377 U.S. 463, 84 S. Ct. 1587 (1964); Gori v. United States, 367 U.S. 364, 81 S. Ct. 1523 (1961); Wade v. Hunter, 336 U.S. 684, 69 S. Ct. 834 (1949); Thompson v. United States, 155 U.S. 271, 15 S. Ct. 73 (1894); United States v. Perez, 9 Wheat. 579 (1824); Orr v. State, 236 Ala. 462, 183 So. 445 (1938); State v. Dowthard, 92 Ariz. 44, 373 P. 2d 357 (1962), cert. denied, 372 U.S. 920, 83 S. Ct. 735 (1963); People v. Mills, 148 Cal. App. 2d 392, 306 P. 2d 1005, cert. denied, 355 U.S. 841, 78 S. Ct. 55 (1957); McLendon v. State, 74 So. 2d 656 (Fla. 1954); Kamen v. Gray, 169 Kan. 664, 220 P. 2d 160, cert. denied, 340 U.S. 890, 71 S. Ct. 206 (1950); Clukey v. State, 160 Me. 198, 202 A.2d 6 (1964); State v. Romeo, 43 N.J. 188, 203 A.2d 23 (1964), cert. denied, 379 U.S. 970, 85 S. Ct. 668 (1965); State v. Ravencraft, 222 S.C. 139, 71 S.E. 2d 798 (1952); DeYoung v. State, 160 Tex. Crim. 628, 274 S.W. 2d 406 (1954); Notes, Double Jeopardy: The Reprosecution Problem, 77 Harv. L. Rev. 1272 (1964). Numerous circumstances have been held to permit a second trial although the jury or tribunal originally impanelled was discharged without reaching a verdict. The most common and classic example of such an occasion is that presented when the first
jury was unable to reach agreement. See, e.g., Downum v. United States, 372 U.S. 734, 736, 83 S. Ct. 1033, 1034 (1963); Logan v. United States, 144 U.S. 263, 12 S. Ct. 617 (1892); United States v. Perez, 9 Wheat. 579 (1824); Commonwealth v. Kent, 355 Pa. 146, 49 A.2d 388 (1946); McCreary v. Commonwealth, 29 Pa. 323 (1857); State v. Blockyou, 195 Kan. 405, 407 P. 2d 519 (1965). Likewise, the termination of the initial proceeding because of the disqualification*fn6 or illness of a juror*fn7 or the ...