Following trial of petitioner on two counts for reckless
homicide and for involuntary manslaughter, the jury found him
guilty of reckless homicide. The State Supreme Court granted him a
new trial, and he was retried on both counts, the second jury
returning the same verdict as the first. The same prison sentence
as before, and a lower fine, were imposed. The State Supreme Court
affirmed, rejecting petitioner's contention that the first jury's
silence on the manslaughter charge constituted an acquittal, and
that retrial on that count had unconstitutionally subjected
petitioner to double jeopardy.
Held: the writ of certiorari is dismissed as
improvidently granted. Pp.
385 U. S. 77-80.
(a) Under Indiana law, the acknowledgedly overlapping offenses
of involuntary manslaughter and reckless homicide (which carries a
lesser penalty) are treated more as one offense with different
penalties than as a greater and an included offense. A final
judgment of conviction of one bars prosecution for the other, and,
if there is a conviction for both offenses, a penalty can be
imposed for only one. Pp.
385 U. S.
78-79.
(b) As the Indiana Supreme Court held, because of the identity
of the elements of the two crimes and the known trial court
practice of instructing the jury to return a verdict on but one of
the charges, the jury's silence on the involuntary manslaughter
count was not tantamount to acquittal, the reckless homicide
verdict encompassed the elements of involuntary manslaughter, and
petitioner was given the lesser penalty. Pp.
385 U. S.
79-80.
Reported below: ___ Ind. ___,
208 N.E.2d
685, ___ Ind. ___, 210 N.E.2d 363.
Page 385 U. S. 77
MR. JUSTICE WHITE delivered the opinion of the Court.
Following petitioner's trial in the Circuit Court for Parke
County, Indiana, under a two-count affidavit charging him with
reckless homicide and involuntary manslaughter, the jury returned a
verdict reciting only that he was guilty of reckless homicide.
Petitioner was sentenced to one to five years in prison, and was
fined $500 plus court costs. He appealed, and the Supreme Court of
Indiana granted a new trial. Petitioner was retried on both counts,
and the second jury returned the same verdict as the first. He was
again sentenced to one to five years in prison, but was fined only
$100 plus court costs. The Supreme Court of Indiana,
208 N.E.2d
685, affirmed this reckless homicide conviction, rejecting
petitioner's contention that his retrial on the involuntary
manslaughter count had subjected him to double jeopardy in
violation of the Indiana and United States Constitutions. [
Footnote 1]
Asserting that the first jury's silence with respect to the
manslaughter charge amounted to an acquittal under Indiana law, and
that his retrial on that charge placed him twice in jeopardy,
compare Green v. United States, 355 U.
S. 184, petitioner, in his petition for certiorari,
which we granted, presented a single question: is the Fifth
Amendment's prohibition against placing an accused in double
jeopardy applicable to state court prosecutions under the Due
Process Clause of the Fourteenth Amendment?
Because of the following considerations, which have more clearly
emerged after full briefing and oral argument, we do not reach the
issue posed by the petitioner, and dismiss the writ as
improvidently granted.
Page 385 U. S. 78
1. The Indiana statutes define involuntary manslaughter as the
killing of "any human being . . . involuntarily in the commission
of some unlawful act." Ind.Stat.Ann. § 10-3405 (1956). The
statutory penalty is two to 21 years' imprisonment. [
Footnote 2] The crime of reckless homicide,
created in 1939 as part of Indiana's comprehensive traffic code, is
committed by anyone "who drives a vehicle with reckless disregard
for the safety of others and thereby causes the death of another
person." Ind.Stat.Ann. § 47-2001(a) (1965). For this crime, a fine
and a prison term of from one to five years are authorized.
Recognizing the inherent overlap between these two crimes in
cases of vehicular homicide, the Indiana Legislature has provided
that
"[A] final judgment of conviction of one (1) of them shall be a
bar to a prosecution for the other; or if they are joined in
separate counts of the same indictment or affidavit, and if there
is a conviction for both offenses, a penalty shall be imposed for
one (1) offense only."
Ind.Stat.Ann. § 47-2002 (1965). The Indiana courts have also
recognized that reckless homicide "is a form of involuntary
manslaughter,"
Rogers v. State, 227 Ind. 709, 715, 88
N.E.2d 755, 758. Proof of reckless homicide necessarily establishes
an unlawful killing that amounts to involuntary manslaughter. Both
crimes require proof of the same elements to sustain a conviction
under Indiana law.
See Rogers v. State, supra; State v.
Beckman, 219 Ind. 176, 37 N.E.2d
Page 385 U. S. 79
531. Thus, the effect of charging the two crimes in a single
affidavit, as occurred in this case, was to give the jury the
discretion to set the range of petitioner's sentence at two to 21
years by convicting him of involuntary manslaughter, or at one to
five years by convicting him of reckless homicide. As the Indiana
Supreme Court in the case before us explained,
"[t]he offenses here involved are statutorily treated more as
one offense with different penalties, rather than viewing reckless
homicide as an included offense in involuntary manslaughter."
___ Ind. ___,
208 N.E.2d
685, 688.
2. Petitioner does not assert that he should not have been tried
again for reckless homicide. His only claim is that he should not
have been tried again for involuntary manslaughter as well as
reckless homicide, because the jury's silence at his first trial
with respect to involuntary manslaughter was legally an acquittal
on this charge.
However, the Indiana Supreme Court squarely rejected this
interpretation of the first jury's verdict. The court distinguished
a long line of Indiana cases which have held that a jury's silence
must be deemed an acquittal. [
Footnote 3] Because of the identity of the elements of
these two crimes, and because the Indiana Supreme Court knew of
"the trial court practice of telling the jury to return a verdict
on only one of the charges in view of the limitation on penalty,"
[
Footnote 4] 208 N.E.2d
Page 385 U. S. 80
at 687, the court concluded that
"a verdict of guilty of reckless homicide does not logically
exclude the possibility of such a verdict on the charge of
involuntary manslaughter."
208 N.E.2d at 688-689. Therefore,
"[T]he logic of the principle which states silence is equal to
an acquittal is perhaps made inappropriate to charges of these
offenses, related to the same unlawful transaction. . . . Rather
than treat the silence of the jury in the involuntary manslaughter
count in this case as an acquittal, the better result would seem to
be to hold that the reckless homicide verdict encompassed the
elements of involuntary manslaughter, and that appellant was simply
given the lesser penalty."
In the light of the Indiana statutory scheme and the rulings of
the Indiana Supreme Court in this case, we cannot accept
petitioner's assertions that the first jury acquitted him of the
charge of involuntary manslaughter, and that the second trial
therefore placed him twice in jeopardy. Consequently, we do not
reach or decide the question tendered by the petition for
certiorari, and the writ is dismissed as improvidently granted.
It is so ordered.
While concurring in the Court's opinion, MR. JUSTICE BLACK
adheres to his dissent in
Bartkus v. Illinois,
359 U. S. 121,
359 U. S. 150,
to the effect that the Fourteenth Amendment makes the double
jeopardy provision of the Fifth Amendment applicable to the
States.
[
Footnote 1]
"[N]or shall any person be subject for the same offence to be
twice put in jeopardy of life or limb." U.S.Const., Amend. 5. "No
person shall be put in jeopardy twice for the same offense."
Ind.Const., Art. I, § 14.
[
Footnote 2]
Indiana adopted the common law crime of involuntary manslaughter
early in its history. The crime has traditionally been applied by
the Indiana courts to cases of vehicular accidents resulting in
death.
E.g., Smith v. State, 186 Ind. 252, 115 N.E. 943
(auto accident);
State v. Dorsey, 118 Ind. 167, 20 N.E.
777 (railroad accident).
[
Footnote 3]
This doctrine developed in response to contentions that silence
on any count required the setting aside of the entire verdict under
the common law rule that a defendant has an absolute right to a
jury verdict on all charges for which he is tried.
See
Weinzorpflin v. State, 7 Blackf. 186 (1844). Since a reckless
homicide conviction is a statutory bar to further prosecution for
involuntary manslaughter, § 47-2002, supra, petitioner cannot be
adversely affected by the jury's silence with respect to the
involuntary manslaughter count.
[
Footnote 4]
The judge's charge to the jury in the first trial is not a part
of the record in this case.
MR. JUSTICE FORTAS, with whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS join, dissenting.
If this were a federal case, it would, in my view, be covered by
Green v. United States, 355 U. S. 184
(1957). In
Green, the defendant was not acquitted of the
first degree murder charge at the first trial. Just as in the
Page 385 U. S. 81
present case, the jury did not return a verdict on that count,
but convicted Green on the lesser charges of arson and second
degree murder. But this Court held that Green could not be retried
on the first degree murder charge. It clearly and unmistakably held
that whether Green was "acquitted" of the greater offense was of no
consequence. He had been exposed to jeopardy.
See 355 U.S.
at
355 U. S. 188,
355 U. S.
190-191. So, in the present case, it is of no
consequence whether the silence of the jury on the involuntary
manslaughter count amounted to acquittal. Petitioner was put in
jeopardy on that count, and cannot again be tried on that
charge.
The only difference between
Green and the present case
-- except as to the jurisdictions -- is that, in
Green, on
the second trial, the defendant was convicted on the aggravated
count. In the present case, petitioner was again convicted on the
less serious charge. I cannot see that this can justify a
difference in result. Petitioner should not have been retried on an
affidavit including the more serious charge, which was not involved
in the appeal. That charge was dead -- beyond resuscitation. Its
wrongful inclusion in the affidavit was materially harmful to
petitioner. First, it exposed him to the hazards of prosecution and
conviction for the more onerous offense. Second, it again gave the
prosecution the advantage of offering the jury a choice -- a
situation which is apt to induce a doubtful jury to find the
defendant guilty of the less serious offense rather than to
continue the debate as to his innocence.
See United States ex
rel. Hetenyi v. Wilkins, 348 F.2d 844 (C.A.2d Cir. 1965),
cert. denied, Mancusi v. Hetenyi, 383 U.S. 913 (1966). And
beyond the question of injury to the petitioner in this particular
case is the fact that the procedure which Indiana used chills the
right of appeal. It "has the necessary effect of unlawfully
burdening and penalizing the exercise of the right to seek review
of a criminal conviction."
United
States
Page 385 U. S. 82
v. Ewell, 383 U. S. 116,
383 U. S. 130
(1966) (dissenting opinion). Defendants in Indiana in this type of
case are admonished that, if they appeal from a conviction on the
less onerous charge, they do so at the peril that, on the next
trial, they may be tried, and possibly convicted, on the more
serious count.
This is a state case. But the Fourteenth Amendment's requirement
of due process, in my view, certainly and clearly includes a
prohibition of this kind of heads-you-lose, tails-you-lose trial
and appellate process.
See the dissent of MR. JUSTICE
BLACK in
Bartkus v. Illinois, 359 U.
S. 121,
359 U. S. 150
(1959);
Brock v. North Carolina, 344 U.
S. 424,
344 U. S. 429,
344 U. S. 440
(1953) (dissenting opinions of Vinson, C.J., and Douglas, J.).
The Second Circuit's views are in accordance with the position
stated herein.
See United States ex rel. Hetenyi v. Wilkins,
supra.
I would reverse and remand.