COMMONWEALTH vs. JOSEPH A. GALLO. (and two companion cases between the same parties).

WILKINS, C.J. Following the decision in Gallo v. Commonwealth, 343 Mass. 397, which reversed the conviction of the defendant and remanded the cases for further proceedings, the indictments were set down for trial in the Superior Court. The defendant entered pleas of autrefois acquit and autrefois convict, and moved that the indictments be dismissed on the ground that any further trial would place him in jeopardy for the second time. See G. L. (Ter. Ed.) c. 263, Sections 7, 8; Commonwealth v. DiStasio, 297 Mass. 347, 352-355; Commonwealth v. Azer, 308 Mass. 153, 155-157; Commonwealth v. Burke, 342 Mass. 144, 145-147. The cases are reported without decision upon the indictments, a stipulation, and the pleas. G. L. c. 278, Section 30A, inserted by St. 1954, c. 528.

The stipulation is taken almost word for word from the earlier decision (pages 398-399). The defendant was convicted on three indictments, respectively for armed robbery, for burglary being armed and making an assault, and for conspiracy. He was sentenced on the first two, and the third was placed on file. During the course of the trial, one of the twelve jurors became ill and was excused. The defendant's counsel agreed to continue with eleven jurors. No written waiver of the right to be tried by a jury of twelve nor any written request for trial by the remaining members of the jury was signed by the defendant and filed with the clerk. The judge informed the jury in open court that counsel agreed to proceed with eleven jurors. The defendant brought writ of error. We held that the Superior Court had jurisdiction to continue with the trial, but that the oral waiver was invalid under G. L. c. 234, Section 26A, inserted by St. 1945, c. 428, Section 1. The rescript was, "Judgments reversed. Verdicts set aside. Cases remanded to the Superior Court for further proceedings." This, without more, meant that the defendant could be, and should be,

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retried on the indictments upon which there were convictions reversed in the prior case. Giles v. Commonwealth, 339 Mass. 410.

The grounds advanced by the defendant for escaping trial are unsound. He states in his brief, "Although the concept of fairness to the Commonwealth might well be outraged by a rule which would foreclose further prosecution of a person whose conviction had been reversed because of an erroneous instruction to the jury or because of the admission or exclusion of evidence, it is not, it is submitted, unfair to the Commonwealth to protect the defendant against repeated inconclusive trials, where he has had no part in the error which caused termination of the first." Assuming that the defendant had no part in orally agreeing to a trial by eleven jurors, accuracy compels the statement that his counsel did. Moreover, the first trial was not inconclusive. It ended in the defendant's conviction, which was reversed for failure to comply with the technical requirements of a statute imposed for his benefit. But entirely apart from this fact we are clearly of opinion that fairness to the Commonwealth and its people would be grievously outraged by sending the defendant back to the Superior Court for the sustaining of his pleas. That the prior conviction was set aside on writ of error does not establish double jeopardy. See Commonwealth v. Murphy, 174 Mass. 369, 371-372, affd. sub nom. Murphy v. Massachusetts, 177 U.S. 155; Commonwealth v. Burke, 342 Mass. 144, 147; Green v. United States, 355 U.S. 184, 189. Compare Commonwealth v. Azer, 308 Mass. 153, 156; Giles v. Commonwealth, 339 Mass. 410, 415.

The case falls within what was said by Chief Justice Shaw in Commonwealth v. Roby, 12 Pick. 496, 502-503, in a discussion of double jeopardy: "So, after the jury is empanelled and charged with the prisoner, and progress made in the trial, if through the death or sudden sickness of a juror, the illness of the prisoner, or other case of urgent necessity, the progress of the trial is interrupted, another jury may be empanelled, and the prisoner again put upon

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his trial. . . . These decisions cannot be regarded as a violation of the maxim under consideration, because, although in a certain sense it may be said that the prisoner was put in jeopardy by the first trial, yet the event has shown that there was no legal trial, and therefore that he was in no such jeopardy or danger of conviction as the maxim regards." The defendant merely presents another example of an illegal trial while in a court which had jurisdiction. Commonwealth v. Murphy, supra, 371.

The defendant's argument that the first trial was unjustifiably interrupted by relating back this court's holding in the prior case to February 17, 1960, when the ill juror was excused, is wholly untenable. The trial was not terminated by operation of law as in People ex rel. Meyer v. Warden of the Nassau County Jail, 269 N. Y. 426 (see People v. Ercole, 4 N. Y. 2d 617, 621). It continued to conviction but was infected by procedural error. Reversal because of this error was not a termination on February 17, 1960, by a fictional relation back.

The pleas of autrefois acquit and autrefois convict are to be overruled.

So ordered.