Argued September 25, 1932. The Commonwealth appeals from an order of the court below overruling its demurrer to a plea of former jeopardy entered by defendant to an indictment for murder on which he was about to be tried, giving judgment for *Page 383 him on the plea and discharging him from the indictment.
The first question which confronts us is the right of the Commonwealth to appeal, defendant contending that it has no such right, citing in support of his position the authorities set forth in the note.* The criminal law must move forward to meet the new conditions which confront organized society if its law-abiding members are to be protected in their personal and property rights. Whatever the rule may have been in past decades, we think now when there is such wide latitude allowed those convicted of crime to appeal and have their convictions reviewed, there should be a liberalizing of the attitude towards the Commonwealth, where the defendant has been convicted, and the question ruled against the Commonwealth, as here, is purely one of law. This is what we intended when we said in Com. v. Wallace, 114 Pa. 405, 411, "For error in quashing an indictment, arresting judgment after verdict of guilty, and the like, the Commonwealth may remove the record for review without special allowance of the proper writ." By the words "and the like," we meant cases in which the ruling is against the Commonwealth on pure questions of law. Our determination, therefore, is that the Commonwealth has the right to appeal. This was the conclusion reached by the Superior Court in Com. v. Kolsky, 100 Pa. Super. 596. *Page 384
This brings us to the second question: Where a defendant has been put upon trial on an indictment charging murder, the jury sworn, and before verdict, without the defendant's acquiescence, or any absolute necessity so to do, the jury has been discharged, may the defendant, pleading former jeopardy, be tried again on the same indictment? That he may not be for first degree murder is conceded and beyond question, as he would then again be in jeopardy of life. May he be tried again for the lesser offenses comprehended in the indictment, murder of the second degree and voluntary manslaughter? The question is not free from difficulty.
The provision of Pennsylvania's Constitution, article I, section 10, and the Constitution of the United States, are substantially the same. Ours reads: "No person shall, for the same offense, be twice put in jeopardy of life or limb." What is connoted by the words "or limb" is the direct inquiry we are to make. It cannot be gainsaid that there are cases which rule that the defendant cannot again be tried on the murder indictment for any offense. It will not profit anything to carry the investigation of authorities beyond our own border.
Apparently none of the prior cases in this jurisdiction presents, on its facts, the precise question now before us. May a defendant be tried a second time on an indictment charging murder when the Commonwealth seeks conviction not for murder of the first degree but for murder of the second degree or manslaughter only? In Hilands v. Com., 111 Pa. 1, the jury in a murder case after being sworn was discharged by the trial judge. The defendant was again arraigned and convicted of firstdegree murder. It was held that this was double jeopardy as he had twice been put in jeopardy of life. In Com. v. Fitzpatrick,121 Pa. 109, on the first trial, the Commonwealth did not press for a conviction of murder of the first degree. The court instructed the jury that the evidence would not warrant a conviction of that crime, that they could not find a higher verdict than murder of the *Page 385 second degree. The jury having reported their inability to agree, the court discharged them. The defendants, — being called for a second trial upon the same indictment (the report does not show whether the Commonwealth intended asking a first degree verdict), defendants' counsel filed a special plea in which was set forth at length the proceedings had after the arraignment and general plea, and averring that the defendants then pleading were the same persons theretofore tried upon the indictment, — prayed to be discharged from the same. The Commonwealth demurred to the plea. The trial court entered judgment in favor of the defendants on the demurrer and the Commonwealth appealed. This court affirmed. Whether it would have done so if the Commonwealth had disclaimed a purpose to demand a first degree verdict, we cannot know. In Com. v. Tenbroeck, 265 Pa. 251, the defendant was indicted and tried for murder, and convicted of and sentenced for murder of the second degree. Pending the trial, the jury was permitted to separate, which, it was urged, compelled a reversal. We said (page 256), "As the conviction was of the second degree the case ceased to be a capital one and the temporary separation of the jury, of which complaint is made, becomes unimportant."
White on the Constitution of Penna., page 107, has this to say: "The first observation to be made concerning the clause in question is that it applies only to capital cases. This was not the fact anciently, when punishment might take the form of mutilation of one's members, or their endangerment, as in trials by battle, for, in such cases, when placed on trial he was in jeopardy of his limbs without also being in jeopardy of his life. The cases in which the protection of the clause may be invoked are those in which, at the time the crime was committed, it was punishable by death. Thus, crimes which at common law were capital, but which under our statutes are not so punished, are not within the meaning of the provision. If at some future time the punishment *Page 386 for murder should be made life imprisonment in all cases, the clause in question would be of no service, except because of the possibility of a return to capital punishment." For these latter statements there is the express authority of McCreary v. Com., 29 Pa. 323, 326.
Moreover, the language of the constitutional provision is clear and unambiguous. "No person shall for the same offense be twice put in jeopardy of life or limb," can only mean that no one shall be tried a second time for an offense the punishment of which may result in the taking of his life or injury to his limbs. Plainly, the language itself compels this conclusion; abnormality in its use is required before any other can be reached.
While not necessary to the decision of the point involved, it was said by Mr. Justice PAXSON, speaking for the court, in Hilands v. Com., supra, that a defendant in a capital case can never be tried again upon a charge of which he might have been convicted upon his arraignment, and this view can be found in other cases. It is said in some of them that the words "or limb" are a term of art generically signifying certain crimes, — the major felonies. But the fact — the reality of the matter — is that there is now no jeopardy of limb, as there was when the expression first came into the law, when most, if not all, of the major felonies were punishable with death or mutilation. The words to-day, so far as punishment is concerned, are without application to anything which exists. This being so, should a far fetched meaning and effect be given to them? In administering the criminal law, should we, by sticking in the bark of an old expression, bring about the anomaly that if a man be indicted for murder and be put upon trial and the jury is improperly discharged before verdict, he is to be set scot free, although his actual offense, as the proofs showed, rose no higher than manslaughter; whereas if the indictment in the first instance had been drawn for manslaughter, he could be tried upon it again? Where sound reason backs the ruling, we feel constrained to lop off dead limbs from *Page 387 the trunk of the criminal law and thus give the tree greater vitality in its living branches.
Some of our cases give color to the thought that the court, in much earlier decades, had reached the conclusion only that he could not again be tried for first degree murder, and that there was no reason for the rule that the prisoner should be completely discharged when he had once been put upon trial under an indictment for murder and upon a second arraignment pleaded former jeopardy. Thus in McCreary v. Com., supra, the defendants were being tried for burglary. When it appeared the jury was unable to agree on a verdict, it was discharged; subsequently the accused were again put on trial. Their defense was former jeopardy. The plea was overruled and they were convicted. We affirmed the sentence, in the opinion making it clear that the constitutional provision applied only to capital offenses, saying: "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. . . . . . . It [the constitutional provision] is not so inexorable as to shut out a practical construction demanded by necessity, and the safety of the community. . . . . . . That it applies to capital cases is on all hands conceded, for both 'life and limb' are there in jeopardy. But this cannot be said when imprisonment alone is the punishment. There life is surely not jeopardized. But if the construction asked for be tolerated, that where imprisonment places 'life or limb' in jeopardy, convictions for assault and battery might with equal propriety be embraced. Why the words 'life and limb' were used originally in the same connection would now, perhaps, be more curious than useful to inquire. We find them coupled together in the Constitution, and all we can do is to give them a rational and practical interpretation." In McFadden v. Com., 23 Pa. 12, 16, Chief Justice BLACK, in considering the term "jeopardy of life or limb" had this to say: "The judge was using a figure borrowed from the battel; and *Page 388 the phrase 'jeopardy of life or limb' was also used originally with reference to that mode of trial. In judicial combat, the parties took their attitudes of attack and defense when the judges were set, and, all preliminaries being adjusted, the actual conflict was ordered to commence." It would seem the limit of unreason in this enlightened age so to interpret the law as to keep alive in it a term which was incorporated therein to meet the situation existing when trial by battle was practiced.
It is true the Supreme Court of the United States has declared that by the use of the phrase "life or limb" in the Constitution of the United States, protection against double jeopardy is extended to all criminal offenses. It was so held in Ex Parte Lange, 18 Wallace 163. We have not followed this extreme view, but have permitted the retrial of offenses after juries have been discharged, although such an outcome could not be brought about under the federal interpretation. This ruling is not binding upon us, because the provision in the United States Constitution is a limitation upon the powers of the federal government and is not a limitation upon the states: Brantley v. Georgia, 217 U.S. 284. The view which we are now taking, it may be admitted, was not that entertained by the court in Com. v. Fitzpatrick which followed Hilands v. Com. We think, however, our present construction comports more with sound public policy and with the necessity, now existing in dealing with law-breakers, for a reasonable interpretation of the criminal law. Hilands v. Com., 111 Pa. 1, and Com. v. Fitzpatrick, 121 Pa. 109, are overruled, so far as they are in conflict with this opinion.
The order of the court below is reversed, the demurrer of the Commonwealth is sustained in part, the plea of defendant is sustained so far as first degree murder is concerned, as to all other charges the plea is overruled and the indictment against him is reinstated, limited to a trial for offenses other than first degree murder. Costs to be paid by appellee.
* 2 Bishop's Criminal Procedure, section 1272; State v. Lane,78 N.C. 547; 1 Bennett Heards Leading Criminal Cases, 610; People v. Corning, 2 Coms. (N.Y.) 1; Com. v. Cummings, 3 Cush. (Mass.) 212; State v. M'Kee, 1 Bailey (So. Car.) 651; State v. Leunig, 42 Ind. 541; O'Brian v. Com., 9 Bush. (Ky.) 333; State v. Smith, 49 Kansas 358; United States v. Sanges, 144 U.S. 310; Com. v. Capp, 48 Pa. 53; Com. v. Moore, 99 Pa. 570; Com. v. Taylor, 5 Binney 277; Com. v. McKisson, 8 S. R. 420; Com. v. Parr, 5 W. S. 345; Com. v. Church, 1 Pa. 105; Heikes v. Com.,26 Pa. 513; Com. v. Bartilson, 5 W. N.C. 177; Com. v. Wallace,114 Pa. 405; Com. v. Long, 276 Pa. 154; Com. v. Ahlgrim, 98 Pa. Super. 595; Com. v. Kolsky, 100 Pa. Super. 596. *Page 389