# Commonwealth v. Stewart > Supreme Court of Pennsylvania · March 25, 1974 · 456 Pa. 447 URL: https://www.frixlaw.com/law-library/cases/9641642 ## Case - **Full name:** Commonwealth v. Stewart, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** March 25, 1974 - **Citations:** 456 Pa. 447; 317 A.2d 616; 1974 Pa. LEXIS 552 - **Precedential status:** Published - **Opinion:** Concurrence by Nix - **Judges:** Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Mander-Ino, Manderino - **Cited by:** 47 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9641642 ## Opinion text Concurring Opinion by Mr. Justice Nix: I agree that Pa. R. Crim. P. 1118(b) does not remove the trial judge’s right to declare a mistrial sua sponte. I feel, however, compelled to set forth my reasons for arriving at that conclusion. Rule 1118(b) provides, in pertinent part, “. . . In all cases only the defendant or the attorney for the defendant may move for a mistrial.” It is apparent that the Rule is directed to the power of the litigating attorneys to move for a mistrial, not to the power of the trial *457 judge to declare a mistrial sua sponte. The rule’s obvious purpose is to assure that the defense attorney but not the prosecutor should be able to make such a motion. There is no reason to believe that it in any way attempted to affect the inherent powers of the court, if in fact the court had such inherent power. 1 In my view, criminal courts have traditionally possessed such power. The ultimate purpose of any trial is to ascertain truth. One of the trial judge’s primary obligations as the ultimate guardian of the integrity of the trial is to assure that the adjudication be resolved without influence by extraneous considerations. Simmons v. United States, 142 U.S. 148 (1891). Implicit in the creation of an obligation is the grant of those powers necessary to accomplish that obligation. The power to grant a mistrial sua sponte is essential to one charged with the insuring of the integrity of the process. Fortuitous circumstances may arise where it becomes impossible for the trial to proceed uninterrupted. Introduction of highly prejudicial and irrelevant material, problems involving the security of the participants in the trial, death, serious illness or a myriad of other circumstances may combine to disrupt the proceeding and prevent it from serving its basic function — i.e.,—the ascertainment of truth. Where the process has been aborted the judge should not be required to stand by as an impotent eunuch incapable of bringing an end to the debacle on his own. Such an interpretation of Rule 1118(b) would afford the defense the opportunity of exposing before the jury extraneous and prejudicial matters and deny the court any affective *458 means of eradicating the effect of this improper influence upon the verdict. 2 Of course, in order to avoid running afoul of the prohibition against double jeopardy, his reason for acting must be based upon a finding of manifest necessity or that the ends of public justice would otherwise be defeated. Gori v. United States, 367 U.S. 364, 367-9 (1961). In my view the exposure of the jury to the deceased’s father was so pregnant with the possibility of improper influence, that the trial judge properly declared a mistrial. It is not necessary to find that the father actually communicated with the jury in any illegal way to justify such a result. The very nature of the crime involved and the position held by the deceased’s father created an air of impropriety so great as to demand a mistrial. “There can be no condition of things in which the necessity for the exercise of this power is more manifest, in order to prevent the defeat of the ends of public justice, than when it is made to appear to the court that, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending the trial, the jurors or any of them are subject to such bias or prejudice as not to stand impartial between the government and the accused. As was well said by Mr. Justice Curtis in a case very like that now before us, ‘It is an entire mistake to confound this discretionary authority of the court, to protect one part of the tribunal from corruption or prejudice, with the right of challenge allowed to a party. And it is, at least, equally a mistake to suppose that, in a court of justice, either party can *459 have a vested right to a corrupt or prejudiced juror, who is not fit to sit in judgment of the case.’ United States v. Morris, 1 Curtis C.C. 23, 37.” Simmons v. United States, 142 U.S. 148, 154 (1891). While the fact that the defendant and his attorney declined to move for a mistrial may be evidence of the degree of prejudice it does not necessarily change the outcome. Defense counsel may have been incompetent or he may have been aware of another unrelated set of circumstances so favorable to the defense that he was willing to continue in the face of this prejudice. To prohibit the trial judge from acting to abort the trial, in such a circumstance, would make the proceeding a contest between countervailing prejudices rather than a resolution of truth based on relevant evidence. For all of these reasons, I feel that the interests of justice required the trial judge to declare a mistrial. Mr. Justice Pomeroy joins in this concurring opinion. WMle I joined the concurring opinion of Mr. Justice Roberts in Commonwealth v. Lauria, 450 Pa. 72, 75 , 297 A.2d 906 (1972), suggesting otherwise, further consideration has convinced me of the error of my former position. While contempt may be a means of punishing an attorney it in no way remedies a verdict that was improperly reached. Where the material is of a highly inflammatory nature a corrective instruction would be a futile gesture. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9641642. Public record. Not legal advice.