Abraham T. Needleman, J. S. Gottlieb, Philadelphia, for appellant.
Stephen B. Harris, First Asst. Dist. Atty., Kenneth G. Biehn, Dist. Atty. of Bucks County, Doylestown, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., took no part in the consideration or decision of this case. Roberts and Pomeroy, JJ., concur in the result. Manderino, J., dissents.
Appellant, Percy Johnson, was tried by a judge and jury and found guilty of murder in the first degree. Post-trial motions were denied and appellant was sentenced to life imprisonment in a state correctional institution. This appeal followed.
Appellant first argues that his first-degree murder conviction must be reversed because it was the product of his being placed twice in jeopardy. The facts surrounding this argument are as follows. On October 16, 1972, appellant was brought to trial before a judge sitting with a jury and tried for aggravated robbery and murder. The trial continued until October 21, 1972, when the indictments were submitted to the jury. After seven hours, the jury returned to inform the court that they could not agree on all counts in the indictments. The judge sent them back for further deliberations, and they returned in one hour, again advising the court that they could not agree on all counts. The trial judge, pursuant to Rule 1120 Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix, then declared a mistrial as to the murder indictment and accepted the guilty verdict on the aggravated robbery charge.
We are of the opinion that the trial judge was correct in his declaration of a mistrial at appellant's first trial and, therefore, his second trial was not barred by double jeopardy. In appellant's first trial, the trial judge was informed by the jury after seven hours of deliberations that they were deadlocked. He then asked the foreman if there was a possibility of their reaching a verdict. The foreman stated that there was a chance a verdict might be reached. The judge then sent the jury back to deliberate and told them to return to the courtroom
if they could not reach a verdict. An hour later the foreman returned and the following took place:
"THE COURT: Members of the Jury, I have received another note from your Foreman which reads as follows:
'After due deliberation we are definitely and completely deadlocked on the first ...