Commonwealth v. Simpson , 310 Pa. 380 ( 1932 )

I dissent from the order reinstating the indictment and permitting the defendant to be retried thereon for murder of the second degree and for manslaughter. Heretofore this court has uniformly held that when a defendant is called to answer an indictment charging murder, and the jury is sworn, and then, before verdict is rendered, the jury is, without the defendant's consent and without any absolute necessity, discharged, the defendant cannot again be tried on the same indictment if he has interposed the plea of former jeopardy. The Commonwealth concedes that the defendant in such a case may not again be put on trial for first degree murder but it contends that defendant may be tried again on the same indictment for murder of the second degree and voluntary manslaughter. Its reasoning would equally support the conclusion that a defendant could again be tried for murder of the first degree, provided the jury was instructed that the Constitution forbade the infliction of the death penalty after such a second trial.

This court for over a century has negatived the Commonwealth's present contention. In Com. v. Fitzpatrick,121 Pa. 109, 15 A. 466, we said that the defendants who had been again called to trial for murder, and a jury sworn, had a right to say, "We have been once put in jeopardy for this crime and we cannot be compelled to undergo the same peril a second time for the same offense." We declared such a plea to be "unanswerable." The Commonwealth did not in the trial of that case press for a conviction of murder in the first degree, and the court instructed the jury that there was no evidence to support a verdict of murder in the first degree. The court later discharged the jury for failing to agree. This court held that the discharge of the jury barred a subsequent trial on the same indictment.

In Hilands v. Com., 111 Pa. 1, 2 A. 70, this court said in referring to the discharge of the jury in a capital case before a verdict was rendered: "The discharge of the jury was not caused by any improper conduct of the prisoner during the trial. He did not consent to it. It was the action of the court alone, and to retrieve what the court thought was its previous error. . . . . . . The language of the Constitution is imperative. The ablest judicial minds which have administered the law in this Commonwealth, have emphasized its protecting power. Yielding, then, to the clear command of the former, and adopting the construction put upon it by our predecessors on this bench, we do not find that the first jury was discharged under such extreme and overwhelming necessity as to subject the prisoner to be again put in jeopardy of his life for the same offense. It was clear error not to sustain the plea of former jeopardy, and also in putting the prisoner on trial before another jury for the same offense. He should have been discharged from the indictment."

In McCreary et al. v. Com., 29 Pa. 323, this court said after citing the constitutional provision that " 'No person shall, for the same offense, be twice put in jeopardy of life or limb.'. . . . . . It is not denied that the clause applies to cases of felony of death; but no case has been cited showing its application to crime of an inferior grade." Yet in that very case this court said it was now settled "that the discharge of a jury in a capital case, against the consent of the prisoner, works his acquittal" except "where the prisoner has tampered with the jury, or has contrived to keep back the witnesses for the prosecution, or the prisoner during the trial becomes insane, or where a juror dies." It should also be noted that the defendant in that case was charged not with murder but with burglary.

From time immemorial a "capital case" has meant a case in which as a result of a permissible verdict in the case the death penalty might be imposed, and it has been the uniformly adhered to rule in Pennsylvania that when a prisoner has been called to answer an indictment on which he might be found guilty of a crime punishable by death, the jury cannot be discharged without the defendant's consent except by reason of an overwhelming necessity. In Com. v. Cook, 6 Sergeant Rawle 577, which was decided 110 years ago, Chief Justice TILGHMAN questioned the expediency of giving courts the power to discharge juries in "capital cases," except for overwhelming necessity. He said: "There is strong proof of its not being necessary from the fact of its never before having been exercised in Pennsylvania." In that case this court ordered the discharge of three prisoners called for a second trial on an indictment charging murder. The jury in the first trial had been discharged because of their inability to reach a verdict as to the guilt of one of the defendants though they had agreed as to the guilt of two of them. The court refused to permit the jury to pronounce the verdict which they had agreed upon as to two defendants, and without and against the consent of the prisoners the jury were discharged by the court. A new indictment for the same murder having been found by the grand jury, the three prisoners were then arraigned, they pleaded a special plea in bar, which stated the proceedings of their former trial, and insisted that they were in law equivalent to an acquittal and discharge. The attorney-general demurred and the prisoners joined in demurrer. Their counsel moved for their discharge from the indictment. If these prisoners could have been constitutionally put on trial for murder in the second degree or for voluntary manslaughter after the jury in the first trial had been discharged without their consent and without necessity, there was no reason why this court should not have ordered them tried at least for second degree murder or voluntary manslaughter on either the old indictment or the new indictment. Article IX, section 10, of the Constitution of 1790 declared that "no man shall for the same offense be twice put in jeopardy of life or limb." Chief Justice TILGHMAN and Justices GIBSON and DUNCAN (being this entire court at that time) in Com. v. Cook, supra, interpreted that declaration of right as meaning that when a prisoner is called to answer an indictment for murder and the jury is discharged against his consent and without any overwhelming necessity, the prisoner cannot again be called for trial on that indictment or upon any other indictment for the same murder and that he must be absolutely discharged from custody. Chief Justice TILGHMAN said in that case: "I think myself safe in asserting that there is no evidence of any instance since William Penn obtained his charter from Charles II, in which a jury was discharged without the consent of the prisoner in a capital case." He expressed himself as being opposed to a change in this law, and stated (page 587), after setting forth arguments against a change: "These are some of the reasons which induce me to doubt whether any good would arise from a change in the law, if the court had power to change it, which it certainly has not."

It is contended that the term "jeopardy of life or limb" is a phrase that had its origin in the ancient trial by battle, in which both "life and limb" were jeopardized, and it is argued that the law should not be so interpreted as to give effect to a term which was incorporated therein to meet a situation no longer existing. The answer to this is that trial by battle was never resorted to in Pennsylvania and was practically obsolete in England long before the first Constitution of Pennsylvania was adopted. Obviously Justices TILGHMAN, GIBSON and DUNCAN did not have trial by battle in mind when, in the case of Com. v. Cook, supra, they decided that the constitutional inhibition against putting a person twice in jeopardy for the same offense required the complete discharge from the indictment for murder (which, of course, included voluntary manslaughter) of prisoners who had once been tried on the same indictment by a jury which was discharged by the court before a verdict was rendered, and without the prisoner's consent and without there being any absolute necessity for the discharge. The language of Chief Justice TILGHMAN in that case was: "How can the court, without violating the Constitution, take from the prisoner his right to have the jury kept together, until they have agreed, so that he may not be put in jeopardy a second time?"

Justice DUNCAN in his concurring opinion in that case said: "Whenever the jury are charged with a prisoner, where the offense is punishable by death, and the indictment is not defective, he is in jeopardy of his life. . . . . . While they are deliberating whether he shall live or die, can it be said that his life is not in jeopardy? His chance of life fluctuates during their deliberation; but his hopes of life are increased by the knowledge that the jury finds his case one of difficulty. He had heard the judge inform them, if they doubted, they must acquit; when the jury come in, and are asked whether they are agreed on their verdict, this is to him an awful moment. When they say they have not agreed, and they cannot agree, he is entitled to all the benefit of their doubts and difficulties, and to say to the court, 'I have put myself on trial, for life or death, on these twelve men; I will not agree to be again put in jeopardy; I will take this chance, sooner than undergo the pain and anxiety of another trial.' . . . . . . Prisoner discharged."

A defendant called for trial on an indictment charging murder is facing an ordeal possibly as great as the ancient ordeal by battle, and when the Commonwealth calls for trial a person so charged and the jury is selected and sworn, the district attorney should not be permitted, whenever it appears to his official advantage to do so, to bring about a mistrial, unless he is prepared to face the fact that such mistrial will end all prosecution on that indictment. Under the Constitution of this State as this court has consistently interpreted it, a trial judge cannot discharge a jury sworn in a capital case, unless the prisoner consents or unless such action is demanded by what this court has recognized as "absolute necessity," without at the same time discharging the defendant from all further prosecution on the same indictment.

In view of the fact that on an indictment charging murder, the defendant named therein may be convicted of murder of the first degree or of murder of the second degree, or of voluntary manslaughter, it follows under our former decisions that the unwarranted discharge of the jury in a case in which the defendant is charged with murder bars another trial of the same defendant for any offense of which he might have been convicted on the indictment. As it is expressed in 8 R. C. L., pages 153, 154, section 142: "In the absence of necessity the defendant may reasonably demand that the result be regarded as an acquittal, and this applies to every offense charged in the indictment and on which the jury might have returned a verdict if they had not been discharged." Sadler in Criminal Procedure in Pennsylvania, section 347, page 337, says: "A discharge without necessity will prevent further prosecution."

An appellate court occasionally expressly overrules its former decision to meet some profound change in social or economic conditions, but no case has come to my attention where this court has heretofore overruled its long consistently adhered to interpretation of a declaration of individual right imbedded in the state Constitution. When the true meaning of a constitutional provision is officially determined by a court of last resort, that interpretation becomes in legal effect a part of the Constitution and should be changed only by the method the Constitution itself prescribes. Pruning the Constitution is not a judicial function. The United States Supreme Court said in South Carolina v. United States, 199 U.S. 437, at page 448: "The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now." Cooley in his Constitutional Limitations, 8th edition, volume 1, page 124, said: "A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. . . . . . . What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it." 6 R. C. L., page 46, section 39: "Constitutions do not change with the varying tides of public opinion and desire. The will of the people therein recorded is the same inflexible law until changed by their own deliberative action."

The provision against double jeopardy of life or limb has been in each successive Constitution adopted by the people of this Commonwealth. This provision received interpretation from great jurists of this court after the first Constitution was adopted and before later ones were adopted. It is a legitimate assumption that the framers of the Constitution (many of them able lawyers) under which our state government is now functioning, knew the exact meaning judicially given this provision in earlier Constitutions and by reinserting it with its ancient text unaltered in the Constitution of 1873, accepted it with the meaning TILGHMAN, GIBSON and other justices speaking for this court had given it. That meaning was that in a situation precisely like the one now before us, after an unnecessary mistrial in a capital case the order of the court should be: "Prisoner discharged from the indictment." This interpretation I would not now depart from.

"The meaning of constitutional provisions is fixed at the time of their adoption, and the construction given them must be uniform, so that the operation of the instrument will be inflexible, operating at all times alike, and in the same manner with reference to the same subjects:" 12 C. J., page 718, section 72.

I cannot find the slightest justification now for giving to the constitutional guarantee of individual rights emphatically expressed in article I, section 10, of the Constitution of 1873 (as in the Constitutions of 1776, 1790 and 1838) an interpretation utterly different from the one which for more than a hundred years this court has given it and which all other courts in the State in administering the criminal law have accepted and followed without doubt or question.

Mr. Chief Justice FRAZER and Mr. Justice KEPHART joined in this dissent.