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UNITED STATES EX REL. BARBRY v. RUNDLE

January 22, 1970

UNITED STATES ex rel. Ernest BARBRY
v.
Alfred T. RUNDLE, Supt.


Higginbotham, District Judge.


The opinion of the court was delivered by: HIGGINBOTHAM

Relator's petition for writ of habeas corpus is bottomed on two legal arguments, which he contends entitle him to a new trial on bill 824 of December Sessions, 1965, Court of Quarter Sessions, Philadelphia County. Relator was first tried on indictment No. 824, charging rape, and lesser included offenses, in April of 1966, and a mistrial resulted when the jury could not reach a verdict. The Commonwealth renewed its prosecution before a second jury in September of 1966.

 At both trials, the prosecutrix testified that relator forced her at knifepoint to a vacant house and there sexually assaulted her. In his own defense, relator acknowledged that he had had intercourse with the prosecutrix, but claimed that this resulted from her solicitation, and was consummated with her consent.

 The Commonwealth's second prosecution was successful, and relator was found guilty on all counts of the bill of indictment - but not before there occurred two legal actions which relator finds so prejudicial as to entitle him to a new trial. *fn1"

 Relator's two legal contentions were presented before me during oral argument on November 5, 1969. Both parties subsequently submitted briefs in support of their positions.

 Relator's first contention raises for my consideration a version of the so-called "Allen Charge," which one Judge has referred to as the "dynamite" charge *fn2" and which derives from the case of Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).

 At the conclusion of relator's second trial the jury retired to deliberate and returned after four hours and thirty-five minutes - not having agreed upon a verdict. At that point Judge Bernard J. Kelley instructed the jury as follows: (N.T., pp. C 47-C 48)

 
"Members of the jury, I am going to send you back because I believe that this case should require more deliberation and discussion. It is eminently desirable that if you can reasonably agree, that you do agree upon a verdict.
 
"For the parties involved, that is the Commonwealth and the defense, this trial is an important one, and the presentation of this case to you has involved expense not only to the Commonwealth but also to the defendant.
 
"If you fail to agree upon a verdict, the case will have to be tried before another jury selected in the same manner and from the same source as you were chosen. There is no reason to believe that the case will ever be submitted to a jury more competent than you members of the jury to decide it.
 
"Of course, by pointing out to you the desirability of your reaching a verdict the Court is not suggesting to any of you that you surrender conscientious convictions of what the truth is and of the weight and effect of all of the evidence.
 
"The Court does, however, call to your attention that in most cases absolute certainty cannot be expected and that while each of you must decide the case for yourself and not merely acquiesce in the conclusion of your fellow jurors, you should examine the questions submitted to you in the jury room with candor and frankness and with proper deference to and regard for the opinions of each other.
 
"It is your duty after full deliberation and consideration of all the evidence to agree upon a verdict if you can do so without violating your ...

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