Finding that the judgment of the Court of Appeals reversing the
judgment of connction in this case and instructing the trial court
to dismiss the indictment was correct, this Court reinstates that
judgment and vacates a subsequent judgment directing a new
216 F.2d 722, judgment vacated.
The petition for writ of certiorari is granted.
We believe that the judgment of the Court of Appeals of October
20, 1954, reversing and remanding this cause with instructions to
dismiss the indictment, was correct. It is not necessary for us to
pass on the question presented under its subsequent judgment of
November 17, 1954, directing a new trial. We vacate the latter
judgment, which directed the new trial, and we reinstate the former
onw, which instructed the trial court to dismiss the
MR. JUSTICE DOUGLAS, concurring.
Petitioner was convicted by the jury of a conspiracy to defraud
the United States. Petitioner moved for a judgment of acquittal.
The District Court denied the motion. On appeal, the Court of
Appeals held that that motion should have been granted, as the
Page 348 U. S. 374
was insufficient to convict. 216 F.2d 722. It accordingly
reversed and remanded the cause with instructions to dismiss the
indictment. Later, the Government moved to amend the judgment so as
to grant a new trial on the ground of newly discovered evidence.
The Court of Appeals granted the motion of the Government.
The granting of a new trial after a judgment of acquittal for
lack of evidence violates the command of the Fifth Amendment that
no person shall "be subject for the same offence to be twice put in
jeopardy of life or limb."
The correct rule was stated in Kepner v. United States,
195 U. S. 100
195 U. S. 130
"It is, then, the settled law of this court that former jeopardy
includes one who has been acquitted by a verdict duly rendered. . .
." If the jury had acquitted, there plainly would be double
jeopardy to give the Government another go at this citizen. If, as
in the Kepner
case, the trial judge had rendered a verdict
of acquittal, the guarantee against double jeopardy would prevent a
new trial of the old offense. I see no difference when the
appellate court orders a judgment of acquittal for lack of
If petitioner had asked for a new trial, different
considerations would come into play, for then the defendant opens
the whole record for such disposition as might be just. See
Bryan v. United States, 338 U. S. 552
And see Trono v. United States, 199 U.
; Stroud v. United States, 251 U. S.
, 251 U. S. 18
Francis v. Resweber, 329 U. S. 459
329 U. S. 462
Moreover, a reversal by the appellate court on grounds of error
that infected the trial would also be different, as Palko v.
Connecticut, 302 U. S. 319
shows. But and acquittal on the basis of lack of evidence concludes
the controversy, as the Kepner
case holds, and puts it at
rest under the protection of the Double Jeopardy Clause, absent a
motion by the defendant for a new trial.