No. 211 APRIL TERM, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Lawrence County, at No. 906 of 1978.
James M. Keller, Ellwood City, for appellant.
Howard C. Klebe, Assistant District Attorney, New Castle, for Commonwealth, appellee.
Spaeth, Hoffman and Van der Voort, JJ. Spaeth and Hoffman, JJ., concur in the result.
[ 281 Pa. Super. Page 21]
This is an appeal from a denial by the lower court of appellant's motion to quash an indictment. Appellant's sole claim is that to permit his re-trial following a trial which resulted in a hung jury would violate his right to be free from double jeopardy.
At his first trial appellant was found guilty by the judge of the summary offense of driving to the left of center. He was also convicted by a jury of driving under the influence of alcohol, a misdemeanor.
The jury was unable to reach a verdict, however, on the charge of homicide by motor vehicle, and without objection the jury was dismissed when the judge ascertained that further deliberations would be fruitless.
The Pennsylvania Vehicular Homicide Statute provides:
"Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death." (75 Pa.C.S.A. § 3732)
The jury evidently was undecided on the issue of whether appellant's violations of the law regarding the operation of a motor vehicle were the cause of death.
[ 281 Pa. Super. Page 22]
Appellant first argues that reprosecution is barred by Section 110 of the Pennsylvania Crimes Code, (18 Pa.C.S.A. § 110), which says in part:
§ 110. When Prosecution barred by former prosecution for different offense.
Although a prosecution is for the violation of a different provision of the statutes than the former prosecution, or is based on different facts, it is barred by such a former ...