Neil E. Jokelson, William D. Harris, Jokelson & Rosen, Klovsky, Kuby & Harris, Philadelphia, for appellant.
Steven H. Goldblatt, Milton M. Stein, Richard A. Sprague, Arlen Specter, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion. Manderino, J., filed a dissenting opinion.
Appellants in this appeal raise two objections: (a) that the dismissal of the jury after the second trial in this cause, before they had reached a verdict, and forcing the appellants to undergo a third trial which resulted in their convictions, offended the constitutional protections against double jeopardy; and (b) that appellants are entitled to a new trial because the evidence seized and introduced at their trial was procured through defective warrants. For the reasons to be discussed hereinafter we hold the objections to be without merit and affirm the judgment of sentence entered below.
The first trial, which was without a jury, ended when the court granted appellants' motion for a mistrial. The second trial, which forms the basis for appellants' first complaint, commenced December 15, 1969. The matter was heard before a court sitting with a jury and appellants were charged with setting up and maintaining an illegal lottery and conspiracy.*fn1 The jury retired to begin its deliberations at 1:50 P.M. on December 17, 1969. At 4:20 P.M. they returned to the courtroom and reported they were having difficulty in reaching a decision. The trial judge, after stressing the need to participate in the discussions with an open mind, stated:
"Now, if you will do your best to arrive at a verdict in the meantime properly and sincerely and unanimously and the foreman tells me that in his solid judgment, it will be impossible to agree, I will then dismiss you. It is important, when a case is tried, that a Judge exhaust every proper means to bring about a unanimous verdict, and, if the jury are given plenty of time and do not come back in a relatively short time,
they can reach a unanimous verdict. You will have to, therefore, try it again and for a much longer time, but do try to arrive at an agreement. If you cannot, then we must try the case again in another term of court, and we will, of course, but we prefer that this jury, if it can arrive at an agreement that is unanimous, that you do that. I don't think there is much that I can add."
At 7:30, the jury again returned for further instruction on circumstantial evidence. After giving the requested instructions, the trial judge added, sua sponte,
"There is another matter I might speak to you about which I would not do if the hour had not grown so late. I do not want to hold the jury until the late hours of the night because of the dangers that effect the streets in every large city. I don't want to do it and I won't, and if, after a reasonable period, the foreman comes into court and assures me that in his judgment, if they stay there until doomsday, they will not reach a verdict, I will then discharge you and this case must be heard again by another jury at a later time. It would be well if this jury could decide it by a unanimous agreement. Sometimes it almost looks as if it would be impossible ever to have a unanimous verdict, but the key to a unanimous verdict is this openness of mind, willing to listen and to discuss and to consider and then think and deliberate and then vote again.
I would ask you once again that you try to agree and I would suggest that you try it for one more half hour, and that will be all."
At 8:15, the jury returned, unable to agree. At that point, the following colloquy ensued:
"THE COURT: Mr. Foreman, would you advise the Court as to the status of the deliberations of the jury? What is your judgment as to whether it is possible to arrive at a unanimous verdict in this case?
THE FOREMAN: It is impossible.
THE COURT: Are you morally certain that it is impossible?
THE FOREMAN: Morally certain.
THE COURT: The jury was sent out first at 1:50 P.M. It is now 8:25 P.M. That is six and a half hours of deliberation, and I take judicial notice of the fact that Philadelphia is not a safe place on the streets late at night and I am satisfied that you are telling me your honest conviction and it is impossible, no matter how long the jury remains out, for them to agree on a unanimous verdict. In view of that fact and since they have tried ...