Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1960, No. 4, in case of Commonwealth of Pennsylvania v. Vivian L. Richbourg.
George W. Patterson, Jr., for appellant.
Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J.
[ 217 Pa. Super. Page 96]
Dissenting Opinion by Hoffman, J.:
Appellant was indicted for rape and brought to trial before a judge and jury. After the Commonwealth and defense had rested their case and argued to the jury, the trial judge indicated that since the hour was late, he would charge the jury the next day. When court reconvened for that purpose, the district attorney made a motion for withdrawal of a juror. His motion and
[ 217 Pa. Super. Page 97]
the reasons therefor appear as follows in the record: "[The district attorney]: May it please the Court, when I got home last night I received a call from the husband of the complainant, who feels perhaps that the Commonwealth went too far. . . . [The district attorney]: Well, I am about to make a motion, if the Court please, for the withdrawal of a juror because of the possibility, or at least the feeling that perhaps the prosecution erred as against the complainant, or the victim, in usurping the function of the jury in expressing a doubt, an honest doubt, which we had as a result of the evidence in this case. This is the first time, I might say, in my thirteen years experience, where I have had this situation arise. I did, I presented it as I felt. I don't know how to try a case any other way. I certainly would not want to participate in a retrial, but as I think back and can recall my remarks, there exists the possibility that I may have over-simplified this thing. And as long as they feel that way -- it was a short case -- I would ask the Court respectfully to grant the motion, or request for the withdrawal of a juror. At least then the complainant perhaps will feel more satisfied when it is tried again by someone else." Defense counsel argued that the Commonwealth's failure to argue persuasively to the jury did not necessitate a withdrawal of a juror. Over his objection, the court granted the motion and dismissed the jury.
Fourteen months later, appellant was tried once again for rape. He entered a plea of former jeopardy, which plea was denied by the court. Appellant was convicted, ...