Appeal from order of Superior Court, Oct. T., 1971, No. 1203, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1963, Nos. 1563 to 1575, inclusive, in case of Commonwealth of Pennsylvania v. James Wideman.
David H. Kubert, for appellant.
Jeffrey Philip Paul, James Garrett and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones and Mr. Justice Pomeroy concur in the result.
On February 24, 1964, James Wideman, the appellant herein, Louis DeMarco, Anthony D'Antonio and Edward Rose were brought to trial jointly in Philadelphia on indictments charging conspiracy and the commission of several armed robberies. On February 26th, the trial court withdrew a juror and ordered a mistrial. The retrial was listed on numerous subsequent dates, but continued. It eventually commenced on November
, 1966, and concluded on December 9th. The jury found Wideman guilty of conspiracy and one of the armed robbery charges. He was found not guilty on the other charges. A motion for a new trial was denied and a prison sentence of two and one-half to five years was imposed on the robbery conviction, to begin upon the completion of a prior sentence Wideman was then serving. Sentence was suspended on the conspiracy conviction. On appeal the Superior Court unanimously affirmed without opinion. 212 Pa. Superior Ct. 733, 241 A.2d 358 (1968).
On July 23, 1970, Wideman filed a petition seeking post conviction relief under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180 et seq. After a counseled evidentiary hearing relief was denied, and the petition was dismissed. On appeal the Superior Court affirmed this order without opinion. Judge Hoffman filed a dissenting opinion in which Judges Jacobs and Spaulding joined. See 221 Pa. Superior Ct. 207, 289 A.2d 93 (1972). We granted allocatur.
Several assignments of error are asserted in connection with the prosecution proceedings which resulted in Wideman's 1966 conviction, but for the purposes of this appeal only two need concern us.
It is urged the retrial constituted double jeopardy, because the first trial was aborted without "manifest necessity" and without Wideman's personal consent.*fn1 The record discloses the following pertinent facts.
At the trial in 1964, a judge from another judicial district, who was sitting specially in Philadelphia, was the trial judge. On the third day of trial, it became apparent the trial would require many additional ...