Petitioner was indicted and tried in a federal court for first
degree murder. The judge instructed the jury that it could find him
guilty of either first degree murder or second degree murder. The
jury found him guilty of second degree murder, and its verdict was
silent on the charge of first degree murder. The trial judge
accepted the verdict, entered judgment, dismissed the jury and
sentenced petitioner to imprisonment. On appeal, his conviction was
reversed and the case was remanded for a new trial. On remand,
petitioner was tried again for first degree murder under the
original indictment, convicted of first degree murder and sentenced
to death, notwithstanding his plea of former jeopardy.
Held: Petitioner's second trial for first degree murder
placed him in jeopardy twice for the same offense in violation of
the Fifth Amendment, and the conviction is reversed. Pp.
355 U. S.
185-198.
(a) Petitioner's jeopardy for first degree murder came to an end
when the jury was discharged at the conclusion of his first trial,
and he could not be retried for that offense. Pp.
355 U. S.
190-191.
(b) By making a successful appeal from his improper conviction
of second degree murder, petitioner did not waive his
constitutional defense of former jeopardy to a second prosecution
on the first degree murder charge. Pp.
355 U. S.
191-193.
(c) In order to secure the reversal of an erroneous conviction
of one offense, a defendant need not surrender his valid defense of
former jeopardy on a different offense for which he was not
convicted and which was not involved in his appeal. Pp.
355 U. S.
193-194.
(d)
Trono v. United States, 199 U.
S. 521, distinguished. Pp.
355 U. S.
194-198.
98 U.S.App.D.C. 413, 236 F.2d 708, reversed.
Page 355 U. S. 185
Opinion of the Court by MR. JUSTICE BLACK announced by MR.
JUSTICE DOUGLAS.
This case presents a serious question concerning the meaning and
application of that provision of the Fifth Amendment to the
Constitution which declares that no person shall
". . . be subject for the same offence to be twice put in
jeopardy of life or limb. . . ."
The petitioner, Everett Green, was indicted by a District of
Columbia grand jury in two counts. The first charged that he had
committed arson by maliciously setting fire to a house. [
Footnote 1] The second accused him of
causing the death of a woman by this alleged arson, which, if true,
amounted to murder in the first degree punishable by death.
[
Footnote 2] Green entered a
plea of not guilty to both counts, and the case was tried by a
jury. After each side had presented its evidence the trial judge
instructed the jury that it could find Green guilty of arson under
the first count and of either (1) first degree murder or (2) second
degree murder under the second count. The trial judge treated
second degree murder, which is defined by the District Code as the
killing of another with malice
Page 355 U. S. 186
aforethought and is punishable by imprisonment for a term of
years or for life, [
Footnote 3]
as an offense included within the language charging first degree
murder in the second count of the indictment.
The jury found Green guilty of arson and of second degree
murder, but did not find him guilty on the charge of murder in the
first degree. Its verdict was silent on that charge. The trial
judge accepted the verdict, entered the proper judgments, and
dismissed the jury. Green was sentenced to one to three years'
imprisonment for arson and five to twenty years' imprisonment for
murder in the second degree. He appealed the conviction of second
degree murder. The Court of Appeals reversed that conviction
because it was not supported by evidence, and remanded the case for
a new trial. 95 U.S.App.D.C. 45, 218 F.2d 856.
On remand, Green was tried again for first degree murder under
the original indictment. At the outset of this second trial, he
raised the defense of former jeopardy, but the court overruled his
plea. This time, a new jury found him guilty of first degree
murder, and he was given the mandatory death sentence. Again he
appealed. Sitting en banc, the Court of Appeals rejected his
defense of former jeopardy, relying on
Trono v. United
States, 199 U. S. 521, and
affirmed the conviction. 98 U.S.App.D.C. 413, 236 F.2d 708. One
judge concurred in the result, and three judges dissented,
expressing the view that Green had twice been placed in jeopardy,
in violation of the Constitution. We granted certiorari, 352 U.S.
915. Although Green raises a number of other contentions here,
Page 355 U. S. 187
we find it necessary to consider only his claim of former
jeopardy.
The constitutional prohibition against "double jeopardy" was
designed to protect an individual from being subjected to the
hazards of trial and possible conviction more than once for an
alleged offense. In his Commentaries, which greatly influenced the
generation that adopted the Constitution, Blackstone recorded:
". . . the plea of
auterfois acquit, or a former
acquittal, is grounded on this universal maxim of the common law of
England that no man is to be brought into jeopardy of his life more
than once for the same offence. [
Footnote 4]"
Substantially the same view was taken by this Court in
Ex parte
Lange, 18 Wall. 163, at
85 U. S.
169:
"The common law not only prohibited a second punishment for the
same offence, but it went further and forbid a second trial for the
same offence, whether the accused had suffered punishment or not,
and whether in the former trial he had been acquitted or convicted.
[
Footnote 5]"
The underlying idea, one that is deeply ingrained in at least
the Anglo-American system of jurisprudence, is that the State, with
all its resources and power, should not be allowed to make repeated
attempts to convict an individual for an alleged offense, thereby
subjecting him to embarrassment, expense and ordeal and compelling
him to live in a continuing state of anxiety and insecurity,
Page 355 U. S. 188
as well as enhancing the possibility that, even though innocent,
he may be found guilty.
In accordance with this philosophy, it has long been settled
under the Fifth Amendment that a verdict of acquittal is final,
ending a defendant's jeopardy, and, even when "not followed by any
judgment, is a bar to a subsequent prosecution for the same
offence."
United States v. Ball, 163 U.
S. 662,
163 U. S. 671.
Thus it is one of the elemental principles of our criminal law that
the Government cannot secure a new trial by means of an appeal even
though an acquittal may appear to be erroneous.
United States
v. Ball, supra; Peters v. Hobby, 349 U.
S. 331,
349 U. S.
344-345.
Cf. Kepner v. United States,
195 U. S. 100;
United States v. Sanges, 144 U. S. 310.
Moreover, it is not even essential that a verdict of guilt or
innocence be returned for a defendant to have once been placed in
jeopardy so as to bar a second trial on the same charge. This
Court, as well as most others, has taken the position that a
defendant is placed in jeopardy once he is put to trial before a
jury, so that, if the jury is discharged without his consent, he
cannot be tried again.
Wade v. Hunter, 336 U.
S. 684;
Kepner v. United States, 195 U.
S. 100,
185 U. S. 128.
In general,
see American Law Institute, Administration of
The Criminal Law: Double Jeopardy 61-72 (1935). This prevents a
prosecutor or judge from subjecting a defendant to a second
prosecution by discontinuing the trial when it appears that the
jury might not convict. At the same time, jeopardy is not regarded
as having come to an end so as to bar a second trial in those cases
where "unforeseeable circumstances . . . arise during [the first]
trial making its completion impossible, such as the failure of a
jury to agree on a verdict."
Wade v. Hunter, 336 U.
S. 684,
336 U. S.
688-689.
Page 355 U. S. 189
At common law, a convicted person could not obtain a new trial
by appeal except in certain narrow instances. [
Footnote 6] As this harsh rule was discarded,
courts and legislatures provided that, if a defendant obtained the
reversal of a conviction by his own appeal, he could be tried again
for the same offense. [
Footnote
7] Most courts regarded the new trial as a second jeopardy, but
justified this on the ground that the appellant had "waived" his
plea of former jeopardy by asking that the conviction be set aside.
[
Footnote 8] Other courts
viewed the second trial as continuing the same jeopardy which had
attached at the first trial by reasoning that jeopardy did not come
to an end until the accused was acquitted or his conviction became
final. [
Footnote 9] But
whatever the rationalization, this Court has also held that a
defendant can be tried a second time for an offense when his prior
conviction for that same offense had been set aside on appeal.
United States v. Ball, 163 U. S. 662.
In this case, however, we have a much different question. At
Green's first trial, the jury was authorized to find him guilty of
either first degree murder (killing while
Page 355 U. S. 190
perpetrating a felony) or, alternatively, of second degree
murder (killing with malice aforethought). [
Footnote 10] The jury found him guilty of second
degree murder, but, on his appeal, that conviction was reversed and
the case remanded for a new trial. At this new trial, Green was
tried again, not for second degree murder, but for first degree
murder, even though the original jury had refused to find him
guilty on that charge and it was in no way involved in his appeal.
[
Footnote 11] For the
reasons stated hereafter, we conclude that this second trial for
first degree murder placed Green in jeopardy twice for the same
offense in violation of the Constitution. [
Footnote 12]
Green was in direct peril of being convicted and punished for
first degree murder at his first trial. He was forced to run the
gantlet once on that charge, and the jury refused to convict him.
When given the choice between finding him guilty of either first or
second degree murder, it chose the latter. In this situation, the
great majority of cases in this country have regarded the jury's
verdict as an implicit acquittal on the charge of first degree
murder. [
Footnote 13] But
the result in this case need not rest alone
Page 355 U. S. 191
on the assumption, which we believe legitimate, that the jury
for one reason or another acquitted Green of murder in the first
degree. For here, the jury was dismissed without returning any
express verdict on that charge, and without Green's consent. Yet it
was given a full opportunity to return a verdict and no
extraordinary circumstances appeared which prevented it from doing
so. Therefore it seems clear, under established principles of
former jeopardy, that Green's jeopardy for first degree murder came
to an end when the jury was discharged, so that he could not be
retried for that offense.
Wade v. Hunter, 336 U.
S. 684. In brief, we believe this case can be treated no
differently, for purposes of former jeopardy, than if the jury had
returned a verdict which expressly read: "We find the defendant not
guilty of murder in the first degree but guilty of murder in the
second degree."
After the original trial, but prior to his appeal, it is
indisputable that Green could not have been tried again for first
degree murder for the death resulting from the fire. A plea of
former jeopardy would have absolutely barred a new prosecution even
though it might have been convincingly demonstrated that the jury
erred in failing to convict him of that offense. And even after
appealing the conviction of second degree murder, he still could
not have been tried a second time for first degree murder had his
appeal been unsuccessful.
Nevertheless the Government contends that Green "waived" his
constitutional defense of former jeopardy to a second prosecution
on the first degree murder charge by making a successful appeal of
his improper conviction of second degree murder. We cannot accept
this paradoxical contention. "Waiver" is a vague term used for a
great variety of purposes, good and bad, in the law. In any normal
sense, however, it connotes some kind of voluntary knowing
relinquishment of a right.
Cf. Johnson v. Zerbst,
304 U. S. 458.
When a man has been convicted
Page 355 U. S. 192
of second degree murder and given a long term of imprisonment,
it is wholly fictional to say that he "chooses" to forego his
constitutional defense of former jeopardy on a charge of murder in
the first degree in order to secure a reversal of an erroneous
conviction of the lesser offense. In short, he has no meaningful
choice. And as Mr. Justice Holmes observed, with regard to this
same matter in
Kepner v. United States, 195 U.
S. 100, at
195 U. S.
135:
"Usually no such waiver is expressed or thought of. Moreover, it
cannot be imagined that the law would deny to a prisoner the
correction of a fatal error unless he should waive other rights so
important as to be saved by an express clause in the Constitution
of the United States."
It is true that, in
Kepner, a case arising in the
Philippine Islands under a statutory prohibition against double
jeopardy, Mr. Justice Holmes dissented from the Court's holding
that the Government could not appeal an acquittal in a criminal
prosecution. He argued that there was only one continuing jeopardy
until the "case" had finally been settled, appeal and all, without
regard to how many times the defendant was tried, but that view was
rejected by the Court. The position taken by the majority in
Kepner is completely in accord with the deeply entrenched
principle of our criminal law that, once a person has been
acquitted of an offense, he cannot be prosecuted again on the same
charge. This Court has uniformly adhered to that basic premise. For
example, in
United States v. Ball, 163 U.
S. 662,
163 U. S. 671,
a unanimous Court held:
"The verdict of acquittal was final, and could not be reviewed,
on error or otherwise, without putting [the defendant] twice in
jeopardy, and thereby violating the constitution."
And see Peters v. Hobby, 349 U.
S. 331,
349 U. S.
344-345;
United States v. Sanges, 144 U.
S. 310.
Page 355 U. S. 193
Using reasoning which purports to be analogous to that expressed
by Mr. Justice Holmes in
Kepner, the Government
alternatively argues that Green, by appealing, prolonged his
original jeopardy, so that, when his conviction for second degree
murder was reversed and the case remanded, he could be tried again
for first degree murder without placing him in new jeopardy. We
believe this argument is also untenable. Whatever may be said for
the notion of continuing jeopardy with regard to an offense when a
defendant has been convicted of that offense and has secured
reversal of the conviction by appeal, here, Green was not convicted
of first degree murder, and that offense was not involved in his
appeal. If Green had only appealed his conviction of arson and that
conviction had been set aside, surely no one would claim that he
could have been tried a second time for first degree murder by
reasoning that his initial jeopardy on that charge continued until
every offense alleged in the indictment had been finally
adjudicated.
Reduced to plain terms, the Government contends that, in order
to secure the reversal of an erroneous conviction of one offense, a
defendant must surrender his valid defense of former jeopardy not
only on that offense, but also on a different offense for which he
was not convicted and which was not involved in his appeal. Or,
stated in the terms of this case, he must be willing to barter his
constitutional protection against a second prosecution for an
offense punishable by death as the price of a successful appeal
from an erroneous conviction of another offense for which he has
been sentenced to five to twenty years' imprisonment. As the Court
of Appeals said in its first opinion in this case, a defendant
faced with such a "choice" takes a "desperate chance" in securing
the reversal of the erroneous conviction. The law should not, and
in our judgment does not, place the defendant in such an incredible
dilemma. Conditioning an appeal of one
Page 355 U. S. 194
offense on a coerced surrender of a valid plea of former
jeopardy on another offense exacts a forfeiture in plain conflict
with the constitutional bar against double jeopardy. [
Footnote 14]
The Government argues, however, that we should accept
Trono
v. United States, 199 U. S. 521, as
a conclusive precedent against Green's claim of former jeopardy.
[
Footnote 15] The
Trono case arose in the Philippine Islands
Page 355 U. S. 195
shortly after they had been annexed by the United States, under
a statutory prohibition against double jeopardy. At that time, a
sharply divided Court took the view that not all constitutional
guarantees were "applicable" in the insular possessions,
particularly where the imposition of these guarantees would disrupt
established customs.
Downes v. Bidwell, 182 U.
S. 244. In
Trono, the defendants had been
charged with murder, but were acquitted by the trial court, which
instead found them guilty of the lesser offense of assault. They
appealed the assault conviction to the Philippine Supreme Court.
That court, acting under peculiar local procedures modeled on
preexisting Spanish practices, which allowed it to review the facts
and law and to substitute its findings for those of the trial
judge, set aside their acquittal, found them guilty of murder and
increased their sentences.
On review by this Court, Mr. Justice Peckham, writing for
himself and three other Justices, took the position that, by
appealing the conviction for assault, the defendants waived their
plea of former jeopardy with regard to the charge of murder. He
said:
"We do not agree to the view that the accused has the right to
limit his waiver as to jeopardy when he appeals from a judgment
against him. As the judgment stands before he appeals, it is a
complete bar to any further prosecution for the offense set forth
in the indictment. . . . No power can wrest from him the right to
so use that judgment, but if he chooses to appeal from it . . . he
thereby waives, if successful, his right to avail himself of the
former acquittal of the greater offense. . . ."
199 U.S. at
199 U. S.
533.
Page 355 U. S. 196
Mr. Justice Holmes refused to join the Peckham opinion but
concurred in the result. Just the year before, in
Kepner v.
United States, 195 U. S. 100,
195 U. S. 135,
he had sharply denounced the notion of "waiver" as indefensible.
There is nothing which indicates that his views had changed in the
meantime. As pointed out above, he did dissent from the holding in
Kepner -- that the Government could not appeal an
acquittal -- on the ground that a new trial after an appeal by the
Government was part of a continuing jeopardy, rather than a second
jeopardy. But that contention has been consistently rejected by
this Court.
Chief justice Fuller and Justices Harlan, White, and McKenna
dissented in
Trono. Mr. Justice McKenna wrote a dissent
which was concurred in by Justices White and Harlan. During the
course of this opinion he stated:
"It is, in effect, held that, because the defendants . . .
appealed and sought a review, as authorized by the statute, of the
minor offense for which they were convicted, the United States was
given the right to try them for the greater offense for which they
were acquitted. . . . I think that the guaranties of constitutions
and laws should not be so construed. . . . I submit that the state
seeks no convictions except in legal ways, and because it does not,
it affords means of review of erroneous rulings and judgments, and
freely affords such means. It does not clog them with conditions or
forfeit by their exercise great and constitutional rights. . .
."
"
* * * *"
"Here and there may be found a decision which supports the
exposition of once in jeopardy expressed in the [Peckham] opinion.
Opposed to it is the general consensus of opinion of American
textbooks on criminal law and the overwhelming weight of American
decided cases."
199 U.S. at
199 U. S.
538-539,
199 U. S.
540.
Page 355 U. S. 197
We do not believe that
Trono should be extended beyond
its peculiar factual setting to control the present case. All that
was before the Court in
Trono was a statutory provision
against double jeopardy pertaining to the Philippine Islands -- a
territory just recently conquered with long -- established legal
procedures that were alien to the common law. [
Footnote 16] Even then, it seems apparent that a
majority of the Court was unable to agree on any common ground for
the conclusion that an appeal of a lesser offense destroyed a
defense of former jeopardy on a greater offense for which the
defendant had already been acquitted. As a matter of fact, it
appears that each of the rationalizations advanced to justify this
result was rejected by a majority of the Court. As Mr. Justice
Holmes, who concurred in the result, effectively demonstrated, the
"waiver theory" is totally unsound and indefensible. On the other
hand, Mr. Justice Holmes' theory of continuing jeopardy has never
outwardly been adhered to by any other Justice of this Court.
[
Footnote 17]
Page 355 U. S. 198
We believe that if either of the rationales offered to support
the
Trono result were adopted here, it would unduly impair
the constitutional prohibition against double jeopardy. The right
not to be placed in jeopardy more than once for the same offense is
a vital safeguard in our society, one that was dearly won and one
that should continue to be highly valued. If such great
constitutional protections are given a narrow, grudging
application, they are deprived of much of their significance. We do
not feel that
Trono or any other decision by this Court
compels us to forego the conclusion that the second trial of Green
for first degree murder was contrary to both the letter and spirit
of the Fifth Amendment.
Reversed.
[
Footnote 1]
D.C.Code, 1951, § 22-401.
[
Footnote 2]
D.C.Code, 1951, § 22-2401.
"Whoever, being of sound memory and discretion . . . without
purpose so to do kills another in perpetrating or in attempting to
perpetrate any arson, as defined in section 22-401 . . . is guilty
of murder in the first degree."
Section 22-2404 provides that the "punishment of murder in the
first degree shall be death by electrocution."
[
Footnote 3]
D.C.Code, 1951, § 22-2403. "Whoever with malice aforethought,
except as provided in (s) 22-2401 . . . kills another, is guilty of
murder in the second degree."
§ 22-2404. "The punishment of murder in the second degree shall
be imprisonment for life, or for not less than twenty years."
[
Footnote 4]
4 Blackstone's Commentaries 335.
[
Footnote 5]
And see United States v. Ball, 163 U.
S. 662,
163 U. S.
669:
"The prohibition is not against being twice punished, but
against being twice put in jeopardy; and the accused, whether
convicted or acquitted, is equally put in jeopardy at the first
trial."
[
Footnote 6]
See 1 Stephen, History of the Criminal Law of England,
c.x;
United States v. Gibert, 25 Fed.Cas. 1287.
[
Footnote 7]
Under English law, the appellate court has no power to order a
new trial after any appeal except in certain cases where the first
trial was a complete "nullity," as for example when the trial court
was without jurisdiction over the person or subject matter.
See 4 Stephen, Commentaries on the Laws of England (21st
ed. 1950), 284. The English appellate court does have power to
substitute a finding of guilt of a lesser offense if the evidence
warrants, but it cannot find the defendant guilty of an offense for
which he was acquitted or increase his sentence.
See 10
Halsbury, Laws of England (Simonds ed. 1955), 539-541, and the
cases cited there.
[
Footnote 8]
See, e.g., Brewster v. Swope, 180 F.2d 984;
State
v. McCord, 8 Kan. 232, 12 Am.Rep. 469;
Cross v.
Commonwealth, 195 Va. 62, 77 S.E.2d 447;
Smith v.
State, 196 Wis. 102, 219 N.W. 270.
[
Footnote 9]
See, e.g., State v. Aus, 105 Mont. 82, 69 P.2d 584.
Cf. Griffin v. Illinois, 351 U. S. 12,
351 U. S.
18.
[
Footnote 10]
In substance, the situation was the same as though Green had
been charged with these different offenses in separate but
alternative counts of the indictment. The constitutional issues at
stake here should not turn on the fact that both offenses were
charged to the jury under one count.
[
Footnote 11]
It should be noted that Green's claim of former jeopardy is not
based on his previous conviction for second degree murder, but
instead on the original jury's refusal to convict him of first
degree murder.
[
Footnote 12]
Many of the state courts which have considered the problem have
concluded that, under circumstances similar to those of this case,
a defendant cannot be tried a second time for first degree murder.
Other state cases take a contrary position. In general,
see the Annotations at 59 A.L.R. 1160, 22 L.R.A. (N.S.)
959, and 5 L.R.A. (N.S.) 571. Of course, many of the state
decisions rest on local constitutional or statutory provisions.
[
Footnote 13]
See cases collected in the Annotations cited in
n 12,
supra, and
the Annotation at 114 A.L.R. 1406.
[
Footnote 14]
The suggestion is made that, under the District Code, second
degree murder is not an offense included in a charge of first
degree murder for causing a death in the course of perpetrating a
felony (commonly referred to as "felony murder"), because it
involves elements different from those necessary to establish the
felony murder, and that, therefore, Green could not legally have
been convicted of second degree murder under the indictment. We
fail to comprehend how this suggestion aids the Government. In the
first place, the District of Columbia Court of Appeals has
expressly held that second degree murder is a lesser offense which
can be proved under a charge of felony murder.
Goodall v.
United States, 86 U.S.App.D.C. 148, 180 F.2d 397;
Green v.
United States, 95 U.S.App.D.C. 45, 218 F.2d 856. Even more
important, Green's plea of former jeopardy does not rest on his
conviction for second degree murder, but instead on the first
jury's refusal to find him guilty of felony murder.
It is immaterial whether second degree murder is a lesser
offense included in a charge of felony murder or not. The vital
thing is that it is a distinct and different offense. If anything,
the fact that it cannot be classified as "a lesser included
offense" under the charge of felony murder buttresses our
conclusion that Green was unconstitutionally twice placed in
jeopardy. American courts have held with uniformity that, where a
defendant is charged with two offenses, neither of which is a
lesser offense included within the other, and has been found guilty
on one but not on the second, he cannot be tried again on the
second, even though he secures reversal of the conviction and even
though the two offenses are related offenses charged in the same
indictment.
See, e.g., Annotation, 114 A.L.R. 1406.
[
Footnote 15]
With the exception of
Trono, the Government appears to
concede in its brief, pp. 38-39, that the double jeopardy problem
raised in this case has not been squarely before this Court.
Palko v. Connecticut, 302 U. S. 319;
Brantley v. Georgia, 217 U. S. 284, and
Kring v. Missouri, 107 U. S. 221, are
not controlling here, since they involved trials in state courts.
Stroud v. United States, 251 U. S. 15, is
clearly distinguishable. In that case, a defendant was retried for
first degree murder after he had successfully asked an appellate
court to set aside a prior conviction for that same offense.
[
Footnote 16]
In the course of his opinion Mr. Justice Peckham made some
general observations to the effect that he regarded the statutory
provision as having the same effect as the Fifth Amendment. Those
remarks were not essential to the decision so that even if they had
been accepted by the full Court they would not be conclusive in
this case where the interpretation of the Fifth Amendment is
necessarily decisive.
Cf. 19 U. S.
Virginia, 6 Wheat. 264,
19 U. S. 399;
Humphrey's Executor v. United States, 295 U.
S. 602,
295 U. S.
626-627.
[
Footnote 17]
Mr. Justice White and Mr. Justice McKenna, who dissented with
Mr. Justice Holmes in
Kepner, refused to agree with the
Court in
Trono. In his dissent in the latter case, Mr.
Justice McKenna attributed his vote in
Kepner to the fact
that the Philippine Islands had a system of jurisprudence which was
totally different from ours, in that it provided no trial by jury,
and traditionally had permitted appellate courts to review both the
law and the facts in criminal cases and to substitute their
findings for those made by the trial judge. Justice Peckham, in his
opinion, also recognized the peculiar nature of these Phillippine
procedures.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON, MR. JUSTICE
CLARK and MR. JUSTICE HARLAN join, dissenting.
On the basis of the following facts, the Court has concluded
that petitioner has twice been put in jeopardy of life in violation
of the Fifth Amendment to the Constitution. [
Footnote 2/1]
Petitioner was tried under an indictment on two counts. The
first count charged arson under D.C.Code, 1951, § 22-401. The
second count charged murder in the first degree under D.C.Code,
1951, § 22-2401, in that in perpetrating the arson petitioner had
caused the death of one Bettie Brown. In submitting the case to the
jury under the second count, the trial court instructed on both
first and second degree murder. The jury returned a verdict finding
petitioner guilty of arson under the first count and of second
degree murder under the second count; the verdict was silent on the
charge of first degree
Page 355 U. S. 199
murder. The court entered judgment on the verdict, and sentenced
petitioner to terms of imprisonment of one to three years on the
first count of the indictment and five to twenty years on the
second count.
Petitioner appealed his conviction of second degree murder,
contending that there was no evidence to support a verdict for that
offense. The Court of Appeals sustained this claim. It reversed the
conviction and ordered a new trial on the ground that, since there
was no basis in the evidence for finding petitioner guilty of
murder in the second degree, it was error to instruct the jury on
that issue. 95 U.S.App.D.C. 45, 218 F.2d 856. [
Footnote 2/2] Petitioner was retried on the second
count of the indictment, convicted of first degree murder, and
sentenced to death. The Court of Appeals, the nine judges sitting
en banc, affirmed this conviction, rejecting petitioner's
contention that he had been put twice in jeopardy of his life in
violation of the Federal Constitution, 98 U.S.App.D.C. 413, 236
F.2d 708, Chief Judge Edgerton and Judges Bazelon and Fahy
dissenting.
Since the prohibition in the Constitution against double
jeopardy is derived from history, its significance and scope must
be determined, "not simply by taking the words and a dictionary,
but by considering [its] origin and the line of [its] growth."
Gompers v. United States, 233 U.
S. 604,
233 U. S.
610.
Page 355 U. S. 200
The origin of this constitutional protection is found in the
common law pleas of
autrefois acquit and
autrefois
convict. In
Vaux's Case, 4 Co.Rep. 44a, 45a, it was
accepted as established that
"the life of a man shall not be twice put in jeopardy for one
and the same offence, and that is the reason and cause that
auterfois acquitted or convicted of the same offence is a
good plea. . . ."
Likewise, Blackstone stated that
"the plea of
auterfois acquit, or a former acquittal,
is grounded on this universal maxim of the common law of England,
that no man is to be brought into jeopardy of his life more than
once for the same offense. And hence it is allowed as a consequence
that, when a man is once fairly found not guilty upon any
indictment, or other prosecution, before any court having competent
jurisdiction of the offence, he may plead such acquittal in bar of
any subsequent accusation for the same crime."
4 Bl.Comm. 335. To try again one who had been previously
convicted or acquitted of the same offense was "abhorrent to the
law of England."
Regina v. Tancock, 13 Cox C.C. 217, 220;
see The King v. Emden, 9 East 437, 445-447.
A principle so deeply rooted in the law of England, as an
indispensable requirement of a civilized criminal procedure, was
inevitably part of the legal tradition of the English Colonists in
America. The Massachusetts Body of Liberties of 1641, an early
compilation of principles drawn from the statutes and common law of
England, declared that, "No man shall be twise sentenced by Civill
Justice for one and the same Crime, offence, or Trespasse," and
that
"Everie Action betweene partie and partie, and proceedings
against delinquents in Criminal causes shall be briefly and
destinctly entered on the Rolles of every Court by the Recorder
thereof. That such actions be not afterwards brought againe to the
vexation of any man."
Colonial Laws of Massachusetts 43, 47.
Page 355 U. S. 201
Thus, the First Congress, which proposed the Bill of Rights,
came to its task with a tradition against double jeopardy founded
both on ancient precedents in the English law and on legislation
that had grown out of colonial experience and necessities. The need
for the principle's general protection was undisputed, though its
scope was not clearly defined. Fear of the power of the newly
established Federal Government required
"an explicit avowal in [the Constitution] . . . of some of the
plainest and best established principles in relation to the rights
of the citizens, and the rules of the common law."
People v. Goodwin, 18 Johns., N.Y., 187, 202. Although
many States, in ratifying the Constitution, had proposed amendments
considered indispensable to secure the rights of the citizen
against the Federal Government, New York alone proposed a
prohibition against double jeopardy. This is not surprising in view
of the fact that only in New Hampshire had the common law principle
been embodied in a constitutional provision. 2 Poore, Federal and
State Constitutions, Colonial Charters and other Organic Laws (2d
ed.), 1282. The bill of rights adopted by the New York convention,
and transmitted to Congress with its ratification of the
Constitution, included a declaration that
"no Person ought to be put twice in Jeopardy of Life or Limb for
one and the same Offence, nor, unless in case of impeachment, be
punished more than once for the same Offence."
Documents Illustrative of the Formation of the Union, H.R.Doc.
No. 398, 69th Cong., 1st Sess. 1035. This declaration was doubtless
before Madison when he drafted the constitutional amendments to be
proposed to the States.
The terms in which Madison introduced into the House what became
the specific provision that is our present concern were these:
"No person shall be subject, except in cases of impeachment, to
more than one punishment
Page 355 U. S. 202
or one trial for the same offence. . . ."
1 Annals of Cong. 434. Debate on this provision in the Committee
of the Whole evidenced a concern that the language should express
what the members understood to be the established common law
principle. There was fear that, as proposed by Madison, it might be
taken to prohibit a second trial even when sought by a defendant
who had been convicted. Representative Benson of New York objected
to the provision because he presumed it was meant to express the
established principle
"that no man's life should be more than once put in jeopardy for
the same offence; yet it was well known, that they were entitled to
more than one trial."
1 Annals of Cong. 753. Others who spoke agreed that although of
course there could be no second trial following an acquittal, the
prohibition should not extend to a second trial when a conviction
had been set aside. The provision as amended by the Senate, S.J.,
1st Cong., 1st Sess. 77, and eventually ratified as part of the
Fifth Amendment to the Constitution, was substantially in the
language used by Representative Benson to express his understanding
of the common law.
The question that had concerned the House in debating Madison's
proposal, the relation between the prohibition against double
jeopardy and the power to order a new trial following conviction,
was considered at length by Mr. Justice Story on circuit in
United States v. Gibert, 1834, 25 Fed.Cas. 1287,
1294-1303, No. 15,204. The defendants in that case had been found
guilty of robbery on the high seas, a capital offense, and moved
for a new trial. Mr. Justice Story, after full consideration of the
English and American authorities, concluded that the court had no
power to grant a new trial when the first trial had been duly had
on a valid indictment before a court of competent jurisdiction.
According to his view, the prohibition against double jeopardy
applied equally whether the defendant
Page 355 U. S. 203
had been acquitted or convicted, and there was no exception for
a case where the new trial was sought by the defendant for his own
benefit. Earlier, Mr. Justice Story had himself taken a nonliteral
view of the constitutional provision in
United
States v. Perez, 9 Wheat. 579, where, writing for
the Court, he found that discharge of a jury that had failed to
agree was no bar to a second trial.
See also 3 Story,
Commentaries on The Constitution (1833), 659-660.
Story's conclusion that English law prohibited, except in rate
instances, granting a new trial after conviction of a felony was
undoubtedly correct,
see The King v. Mawbey, 6 T.R. 619,
638, and on occasion this result has been expressly made to depend
on the maxim prohibiting double jeopardy.
The Queen v.
Murphy, 2 L.R.P.C. 535, 547-548;
see The Attorney-General
v. Bertrand, 1 L.R.P.C. 520, 531-534;
but see The Queen v.
Scaife, 17 Q.B. 238. To this day, the Court of Criminal
Appeals has ordinarily no power to order a new trial even after
quashing a conviction on appeal by the defendant, Criminal Appeal
Act, 7 Edw. VII, c. 23, s. 4(2), and repeated efforts to secure
this power for the Court have met with the argument that a new
trial would, at least in spirit, offend the principle that a
defendant may not be put twice in jeopardy for the same offense.
See 176 H.L.Deb. (5th ser. 1952) 759-763.
The old practice of the English courts, and the position taken
by Mr. Justice Story, however, was generally rejected in the United
States. The power to grant a new trial in the most serious cases
appears to have been exercised by many American courts from an
early date in spite of provisions against double jeopardy.
United States v.
Fries, 3 Dall. 515 (treason);
see People v.
Morrison, 1 Parker's Crim.Rep. (N.Y.,) 625, 626-643 (rape). In
United States v. Keen, 26 Fed.Cas. 686, 687-670, No.
15,510, a decision rendered only five years after
United States
v.
Page 355 U. S. 204
Gibert, Mr. Justice McLean, on circuit, vigorously
rejected the view that the constitutional provision prohibited a
new trial on the defendant's motion after a conviction, or that it
"guarantees to him the right of being hung, to protect him from the
danger of a second trial."
See 26 Fed.Cas. at 690. Other
federal courts that had occasion to consider the question also
rejected Mr. Justice Story's position,
see United States v.
Williams, 28 Fed.Cas. 636, 641, No. 16,707;
United States
v. Harding, 26 Fed.Cas. 131, 136-138, No. 15,301, and
statements by Court cast serious doubt on its validity.
See Ex parte
Lange, 18 Wall. 163,
85 U. S.
173-174, and Mr. Justice Clifford dissenting at
85 U. S.
201-204. In
Hopt v. Utah, 104 U.
S. 631;
110 U. S. 110 U.S.
574;
114 U. S. 114 U.S.
488;
120 U. S. 120 U.S.
430, the defendant was, in fact, retried three times following
reversals of his convictions.
Finally,
United States v. Ball, 163 U.
S. 662-671, expressly rejected the view that the double
jeopardy provision prevented a second trial when a conviction had
been set aside. Two of the defendants in the case had been
convicted of murder, and, on writ of error, the judgments were
reversed with directions to quash the indictment. The same
defendants were then convicted on a new indictment. In affirming
these convictions, the Court said,
"it is quite clear that a defendant who procures a judgment
against him upon an indictment to be set aside may be tried anew
upon the same indictment, or upon another indictment, for the same
offence of which he had been convicted."
163 U.S. at
163 U. S. 672.
On a literal reading of the constitutional provision, with an eye
exclusively to the interests of the defendants, they had been "once
in jeopardy," and were entitled to the benefit of a reversal of
their convictions without the hazard of a new trial. The Court
recognized, however, that such a wooden interpretation would
distort the purposes of the constitutional provision to the
prejudice of society's legitimate interest in convicting the guilty
as much as,
Page 355 U. S. 205
in
United States v. Gibert, they had been distorted to
the prejudice of the defendants.
See also Murphy v.
Commonwealth of Massachusetts, 177 U.
S. 155,
177 U. S.
158-160.
The precise question now here first came before a federal court
in
United States v. Harding, 26 Fed.Cas. 131. There, three
defendants had been jointly indicted and tried for murder. One was
convicted of murder and two of manslaughter, and all moved for a
new trial. A new trial was ordered for the defendant convicted of
murder, and as to the other two defendants, the case was continued
to allow them to decide whether they would take a new trial or
abide by their convictions. Mr. Justice Grier warned these
defendants:
"You ought clearly to understand and weigh well the position in
which you now stand. You have been once tried and acquitted of the
higher grade of offence charged against you in this indictment, the
penalty affixed to which is death; but . . . you have [escaped]. .
. . But let me now solemnly warn you to consider well the choice
you shall make. Another jury, instead of acquitting you altogether,
may find you guilty of the whole indictment, and thus your lives
may become forfeit to the law."
26 Fed.Cas. at 138. In thus assuming that the defendants could
be retried for the greater offense of murder without violating the
prohibition against double jeopardy, Mr. Justice Grier evidently
drew upon a familiar background and what he took to be established
practice in the federal courts. To one versed in these traditions,
the choice to which the defendants were put in abiding by their
convictions or obtaining a new trial, on which the entire question
of their guilt would be open to reexamination, seemed, legally
speaking, a matter of course.
Not until
Trono v. United States, 199 U.
S. 521 (1905), more than fifty years after the
Harding case, did the question
Page 355 U. S. 206
that had there been passed upon by Mr. Justice Grier first come
before this Court.
Trono v. United States came here from
the Philippine Islands. The plaintiffs in error had been proceeded
against in a court of first instance on a complaint accusing them
of murder in the first degree. They were acquitted of this charge,
but convicted of the included offense of assault. They appealed to
the Supreme Court of the Philippines, and that court, exercising a
jurisdiction similar to that conferred by Spanish law on the former
Audiencia to review the whole case both on the facts and the law,
reversed the judgment of the court of first instance, convicted the
plaintiffs in error of the crime of "homicide," or murder in the
second degree, and increased the punishment imposed by the court of
first instance. The plaintiffs in error then sought review by this
Court, claiming that the action of the Supreme Court of the
Philippines had placed them twice in jeopardy, in contravention of
the declaration of rights contained in § 5 of the Act of July 1,
1902, for the Government of the Philippines. The provision in the
statute relied on by the plaintiffs in error declared that, "no
person for the same offense shall be twice put in jeopardy of
punishment. . . ." 32 Stat. 692. This language, it will be noted,
is substantially identical with that in the Fifth Amendment to the
Constitution, upon which petitioner in the present case relies. Its
legal relation to the Fifth Amendment calls for later
consideration.
This Court affirmed the judgment of the Supreme Court of the
Philippines, holding that, since the plaintiffs in error had
appealed their convictions of the lower offense in order to secure
a reversal, there was no bar to convicting them of the higher
offense in proceedings in the appellate court that were tantamount
to a new trial. After canvassing state and federal precedents, Mr.
Justice Peckham concluded that,
"the better doctrine is that
Page 355 U. S. 207
which does not limit the court or jury, upon a new trial to a
consideration of the question of guilt of the lower offense of
which the accused was convicted on the first trial, but that the
reversal of the judgment of conviction opens up the whole
controversy, and acts upon the original judgment as if it had never
been."
199 U.S. at
199 U. S. 533.
It was pointed out that, in permitting retrial for the greater
offense, the Court only applied the principle laid down in
United States v. Ball, supra, and that the result was
justified not only on the theory that the accused had "waived"
their right not to be retried, but also on the ground that
"the constitutional provision was really never intended to, and,
properly construed, does not, cover the case of a judgment under
these circumstances, which has been annulled by the court at the
request of the accused. . . ."
199 U.S. at
199 U. S.
534.
The Court in
Trono left no doubt that its decision did
not turn on any surviving peculiarities of Spanish procedure, or on
the fact that the plaintiffs in error relied on a statutory
provision, rather than on the Fifth Amendment itself. "We may
regard the question as thus presented," stated Mr. Justice
Peckham,
"as the same as if it arose in one of the Federal courts in this
country, where, upon an indictment for a greater offense, the jury
had found the accused not guilty of that offense, but guilty of a
lower one which was included in it, and upon an appeal from that
judgment by the accused, a new trial had been granted by the
appellate court, and the question was whether, upon the new trial
accorded, the accused could be again tried for the greater offense.
. . ."
199 U.S. at
199 U. S. 530.
The dissenters did not dispute this view of the case, but, on the
contrary, were concerned with the Court's holding precisely because
of its constitutional implications. Mr. Justice Harlan adhered to
the view he had taken in earlier cases that the Bill of Rights
applied to the Islands, and Mr. Justice McKenna, in the
principal
Page 355 U. S. 208
dissent, observed that
"Let it be remembered that we are dealing with a great right, I
may even say a constitutional right, for the opinion of the court
discusses the case as though it were from a circuit court of the
United States."
199 U.S. at
199 U. S.
539.
The scope and significance of the
Trono case is
underscored by the Court's decision in
Kepner v. United
States, 195 U. S. 100,
rendered only a year before. That case also arose in the Philippine
Islands. The plaintiff in error had been acquitted by the court of
first instance of the offense with which he was charged. On appeal
by the Government to the Supreme Court of the Islands, the judgment
was reversed and the plaintiff in error convicted. In this Court,
both the Attorney General for the Philippines and the Solicitor
General of the United States contended that § 5 of the Act of July
1, 1902, which included the same prohibition against double
jeopardy involved in the
Trono case, should be construed
in the light of the system of law prevailing in the Philippines
before they were ceded to the United States. Brief for the Attorney
General of the Philippines, pp. 6-16, 29-38; Brief for the
Solicitor General, pp. 34-44. Under that jurisprudence, proceedings
in the Supreme Court, or Audiencia, were regarded not as a new
trial but as an extension of preliminary proceedings in the court
of first instance. The entire proceedings constituted one
continuous trial, and the jeopardy that attached in the court of
first instance did not terminate until final judgment had been
rendered by the Audiencia.
The Court rejected the Government's contention, and held that
the proceedings after acquittal had placed the accused twice in
jeopardy. Whatever the Spanish tradition, the purpose of Congress
was
"to carry some, at least, of the essential principles of
American constitutional jurisprudence to these islands, and to
engraft them upon the law of this people, newly subject to our
jurisdiction. . . .
Page 355 U. S. 209
This case does not . . . require determination of the question
whether the jeopardy clause [of the Fifth Amendment] became the law
of the islands . . . without Congressional action, as the act of
Congress made it the law of these possessions when the accused was
tried and convicted."
195 U.S. at
195 U. S.
121-122,
195 U. S. 125.
The Court also rejected the suggestion that the rights enumerated
in the Act of Congress could have been used "in any other sense
than that which has been placed upon them in construing the
instrument from which they were taken. . . ." 195 U.S. at
195 U. S. 124.
Mr. Justice Holmes, dissenting, found the case
"of great importance not only in its immediate bearing upon the
administration of justice in the Philippines, but, since the words
used in the Act of Congress are also in the Constitution, even more
because the decision necessarily will carry with it an
interpretation of the latter instrument."
195 U.S. at
195 U. S.
134.
The legislative history of the Philippine Bill of Rights, § 5 of
the Act of July 1, 1902, made inevitable the Court's conclusion
that by its enactment Congress extended to the Islands the double
jeopardy provision of the Fifth Amendment, notwithstanding
surviving Spanish procedures, so that the Court should construe the
statute as it would the constitutional provision itself. President
McKinley, in his famous instructions to the Philippine Commission,
dated April 7, 1900, drawn by a leader of the American Bar,
Secretary of War Elihu Root, had stated that
"the Commission should bear in mind, and the people of the
Islands should be made plainly to understand, that there are
certain great principles of government which have been made the
basis of our governmental system, which we deem essential to the
rule of law and the maintenance of individual freedom, and of which
they have, unfortunately, been denied the experience possessed by
us; that there are also certain practical rules of government
which
Page 355 U. S. 210
we have found to be essential to the preservation of these great
principles of liberty and law, and that these principles and these
rules of government must be established and maintained in their
islands for the sake of their liberty and happiness, however, much
they may conflict with the customs or laws of procedure with which
they are familiar. It is evident that the most enlightened thought
of the Philippine Islands fully appreciates the importance of these
principles and rules, and they will inevitably within a short time
command universal assent. Upon every division and branch of the
Government of the Philippines, therefore, must be imposed these
inviolable rules:"
"That no person shall be deprived of life, liberty, or property
without due process of law; that private property shall not be
taken for public use without just compensation; that, in all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, to be informed of the nature and cause of
the accusation, to be confronted with the witnesses against him, to
have compulsory process for obtaining witnesses in his favor, and
to have the assistance of counsel for his defense; that excessive
bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishment inflicted; that no person shall be put twice
in jeopardy for the same offense. . . ."
1 Public Laws of the Philippine Commission, p. LXVI. [
Footnote 2/3]
Page 355 U. S. 211
As the Court pointed out,
"These principles were not taken from the Spanish law; they were
carefully collated from our own Constitution, and embody almost
verbatim the safeguards of that instrument for the protection of
life and liberty."
195 U.S. at
195 U. S. 124.
In the Act of July 1, 1902, Congress adopted, almost in the
language of the President's instructions, the fundamental
provisions he considered must be engrafted onto Philippine law, and
the historical context in which Congress acted leaves no doubt that
it was also actuated by the same purpose as the President -- to
extend to the Philippines "certain great principles of government
which have been made the basis of our governmental system. . . ." 1
Public Laws of the Philippine Commission, p. LXVI. In the double
jeopardy provision of § 5, Congress did not fashion a novel
principle specially adapted to Philippine conditions and different
from what was familiar to American constitutional
Page 355 U. S. 212
thought. On the contrary, it extended over those newly subject
to our jurisdiction the specific command of the Fifth Amendment, as
construed and developed in the decisions of this Court. The Court,
in the
Kepner and
Trono cases, therefore,
following the statutory language itself, emphasized by its
legislative history, construed the double jeopardy provision of § 5
as though it were construing the same provision in the United
States Constitution.
See also Weems v. United States,
217 U. S. 349,
217 U. S.
367-368. The background of these decisions, and the
expressed understanding of the Court on the nature and scope of the
provision construed, make them direct authority in all cases
arising under the double jeopardy provision of the Fifth
Amendment.
The decision in
Trono was emphatically a decision of
the Court. Although Mr. Justice Holmes concurred in the result
only, and not in the opinion of Mr. Justice Peckham, there can be
no doubt of where he stood. He had dissented in the
Kepner
case on the ground that trial and retrial constituted one procedure
entailing one continuous jeopardy, and that there could be no
second jeopardy until a conviction or acquittal free from legal
error had been obtained. He was dissatisfied with the opinion of
Mr. Justice Peckham in the
Trono case, therefore, not
remotely because it upheld the accused's conviction of the greater
offense, but because it did not go further and adopt the continuing
jeopardy theory Mr. Justice Holmes had espoused in the
Kepner case. It there was no double jeopardy for him when
the Government appealed an acquittal, obviously there was none when
the defendant appealed a conviction. Indeed, in
Kepner, he
explicitly stated that he considered state cases that held the
defendant could not be retried for the greater offense to be
wrong.
Many statements by this Court since
Trono show that the
principle of that case cannot in all good conscience
Page 355 U. S. 213
be rested on the criminal procedure of the Philippine Islands,
but on a construction of the Fifth Amendment itself, and, as such,
binding on the entire federal judiciary. In
Burton v. United
States, 202 U. S. 344,
202 U. S. 378,
a case arising in the continental United States, the Court referred
to the principle established by the
Trono decision without
any suggestion that it was confined to cases arising in the
Philippines. In
Brantley v. Georgia, 217 U.
S. 284, the defendant was convicted of manslaughter
under an indictment for murder. On appeal to the State Court of
Appeals, the conviction was reversed, and the defendant retried and
convicted of murder. Although the case concerned the Due Process
Clause, the Court comprehensively stated that this "was not a case
of twice in jeopardy under any view of the Constitution of the
United States." 217 U.S. at
217 U. S.
285.
Of special relevance is
Stroud v. United States,
251 U. S. 15,
251 U. S. 17-18.
In that case, the defendant was indicted for murder, and the jury
returned a verdict of "guilty as charged in the indictment without
capital punishment." The judgment was reversed and a new trial had
on which the defendant was again found guilty of murder, but
without a recommendation against capital punishment. He was then
sentenced to death. This Court expressly relied on
Trono
in affirming the judgment and rejecting the contention that the
imposition of a greater punishment had placed the defendant twice
in jeopardy. As a practical matter and on any basis of human
values, it is scarcely possible to distinguish a case in which the
defendant is convicted of a greater offense from one in which he is
convicted of an offense that has the same name as that of which he
was previously convicted, but carries a significantly different
punishment, namely, death, rather than imprisonment.
Whatever formal disclaimers may be made, neither
Trono
itself nor the reliance placed upon it for more than
Page 355 U. S. 214
half a century permits any other conclusion than that the Court
today overrules that decision. It does so, furthermore, in a case
where the defendant's position is far less persuasive than it was
in
Trono. There, the plaintiffs in error had been
expressly acquitted of the greater offense, whereas, in the present
case, petitioner relies on an "implied acquittal" based on his
conviction of the lesser offense of second degree murder and the
jury's silence on the greater offense. Surely the silence of the
jury is not, contrary to the Court's suggestion, to be interpreted
as an express finding that the defendant is not guilty of the
greater offense. All that can with confidence be said is that the
jury was in fact silent. Every trial lawyer and every trial judge
knows that jury verdicts are not logical products, and are due to
considerations that preclude accurate guessing or logical
deduction. Insofar as state cases speak of the jury's silence as an
"acquittal," they give a fictional description of a legal result:
that when a defendant is found guilty of a lesser offense under an
indictment charging a more serious one, and he is content to accept
this conviction, the State may not again prosecute him for the
greater offense. A very different situation is presented, with
considerations persuasive of a different legal result, when the
defendant is not content with his conviction, but appeals and
obtains a reversal. Due regard for these additional considerations
is not met by stating, as though it were a self-evident
proposition, that the jury's silence has, for all purposes,
"acquitted" the defendant.
Moreover, the error of the District Court, which was the basis
for petitioner's appeal from his first conviction, was of a kind
peculiarly likely to raise doubts that the jury on the first trial
had made a considered determination of petitioner's innocence of
first degree murder. By instructing on second degree murder when
the evidence did not warrant a finding of such an offense, the
court
Page 355 U. S. 215
gave the jury an opportunity for compromise and lenity that
should not have been available. The fact of the matter is that, by
finding petitioner guilty of arson under count one of the
indictment, and of second degree murder under count two, the jury
found him guilty of all the elements necessary to convict him of
the first degree felony murder with which he was charged, but the
judge's erroneous instruction permitted the jury, for its own
undisclosed reason, to render an irrational verdict.
We should not be so unmindful, even when constitutional
questions are involved, of the principle of
stare decisis,
by whose circumspect observance the wisdom of this Court as an
institution transcending the moment can alone be brought to bear on
the difficult problems that confront us. The question in the
present case is effectively indistinguishable from that in
Trono. Furthermore, we are not here called upon to weigh
considerations generated by changing concepts as to minimum
standards of fairness, which interpretation of the Due Process
Clause inevitably requires. Instead, the defense of double jeopardy
is involved, whose contours are the product of history. In this
situation, the passage of time is not enough, and the conviction
borne to the mind of the rightness of an overturning decision must
surely be of a highly compelling quality to justify overruling a
well established precedent when we are presented with no
considerations fairly deemed to have been wanting to those who
preceded us. Whatever might have been the allowable result if the
question of retrying a defendant for the greater offense were here
for the first time, to fashion a policy
in favorem vitae,
it is foreclosed by the decision in
Trono v. United
States.
Even if the question were here for the first time, we would not
be justified in erecting the holding of the present case as a
constitutional rule. Yet the opinion of the Court treats the
question, not as one within
Page 355 U. S. 216
our supervisory jurisdiction over federal criminal procedure,
but as a question answered by the Fifth Amendment itself, and which
therefore even Congress cannot undertake to affect.
Such an approach misconceives the purposes of the double
jeopardy provision, and, without warrant from the Constitution,
makes an absolute of the interests of the accused in disregard of
the interests of society. In
Palko v. Connecticut,
302 U. S. 319, we
held that a State could permit the prosecution to appeal a
conviction of second degree murder and on retrial secure a
conviction of first degree murder without violating any
"fundamental principles of liberty and justice." Since the State's
interest in obtaining a trial "free from the corrosion of
substantial legal error" was sufficient to sustain the conviction
of the greater offense after an appeal by the State, it would, of
course, sustain such a conviction if the defendant had himself
appealed. Although this case defined conduct permissible under the
Due Process Clause of the Fourteenth Amendment, it cannot wisely be
ignored in tracing the constitutional limits imposed on the Federal
Government. Nor should we ignore the fact that a substantial body
of opinion in the States permits what today the Court condemns as
violative of a "vital safeguard in our society." [
Footnote 2/4] The Court restricts Congress within
limits
Page 355 U. S. 217
that, in the experience of many jurisdictions, are not a part of
the protection against double jeopardy or required by its
underlying purpose, and have not been imposed
Page 355 U. S. 218
upon the States in the exercise of their governmental
powers.
Undeniably the framers of the Bill of Rights were concerned to
protect defendants from oppression and from
Page 355 U. S. 219
efforts to secure, through the callousness of repeated
prosecutions, convictions for whose justice no man could vouch. On
the other hand, they were also aware of the countervailing interest
in the vindication of criminal justice, which sets outer limits to
the protections for those accused of crimes. Thus, if a defendant
appeals his conviction and obtains a reversal, all agree, certainly
in this country, that he may be retried for the same offense. The
reason is obviously not that the defendant has consented to the
second trial -- he would much prefer that the conviction be set
aside and no further proceedings had -- but that the continuation
of the proceedings by an appeal, together with the reversal of the
conviction, are sufficient to permit a reexamination of the issue
of the defendant's guilt without doing violence to the purposes
behind the Double Jeopardy Clause. The balance represented by that
clause leaves free another appeal to law. Since the propriety of
the original proceedings has been called in question by the
defendant, a complete reexamination of the issues in dispute is
appropriate and not unjust. In the circumstances of the present
case, likewise, the reversal of petitioner's conviction was a
sufficient reason to justify a complete new trial in order that
both parties might have one free from errors claimed to be
prejudicial. As Mr. Justice Peckham pointed out in
Trono,
"the constitutional provision was really never intended to, and,
properly construed, does not, cover the case of a judgment under
these circumstances, which has been annulled by the court at the
request of the accused. . . ."
199 U.S. at
199 U. S.
534.
I would affirm the judgment.
[
Footnote 2/1]
" . . . nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb. . . ."
[
Footnote 2/2]
In reversing petitioner's conviction, the court observed
that:
"In seeking a new trial at which -- if the evidence is
substantially as before -- the jury would have no choice except to
find him guilty of first degree murder or to acquit him, Green is
manifestly taking a desperate chance. He may suffer the death
penalty. At oral argument, we inquired of his counsel whether Green
clearly understood the possible consequence of success on this
appeal, and were told the appellant, who is 64 years of age, says
he prefers death to spending the rest of his life in prison. He is
entitled to a new trial."
95 U.S.App.D.C. 45, 48, 218 F.2d 856, 859.
[
Footnote 2/3]
These instructions were drawn up for the guidance of the
commission headed by William Howard Taft. In 1912, W. Cameron
Forbes, then Governor General of the Philippines, asked Taft
"what the history of the formation of the Philippine policy was,
who it was that had written the instructions by President McKinley
to the Taft Commission. He informed me that this was the work of
Secretary Root, who wrote the letter of instructions, after which
he had read them over to him [Judge Taft] and other members of his
Commission, and that some suggestions and modifications were made,
but that the main work was intact."
1 Forbes, The Philippine Islands, 130, n. 2. In an address in
1913, Taft stated that the instructions
"had a conspicuous place in the history of our relations to the
Philippines, and a Congressional indorsement given to but few
documents in the whole history of our country. It secured to the
Philippine people all the guaranties of our Bill of Rights except
trial by jury and the right to bear arms. It was issued by
President McKinley as commander-in-chief of the Army and Navy in
the exercise of a power which Congress was glad to leave to him
without intervention for four years. He had thus the absolute
control of what should be done in the way of establishing
government in the Philippine Islands, and this letter to Mr. Root
was the fundamental law of a civil government established under
military authority. Subsequently, in 1902, when Congress assumed
responsibility, it formally adopted and expressly ratified this
letter of instructions, and declared that it, as supplemented by
the remaining provisions of the statute, should be the Constitution
of the Government of the Philippine Islands, and the charter of the
liberties of the Filipino people."
2 Forbes, The Philippine Islands, 500.
[
Footnote 2/4]
Of the 36 States that have considered the question, 19 permit
retrial for the greater offense:
Colorado --
see Young v. People, 54 Colo. 293, 298-307,
130 P. 1011.
Connecticut --
see State v. Lee, 65 Conn. 265, 271-278,
30 A. 1110;
State v. Palko, 122 Conn. 529, 538-539, 541,
191 A. 320, 113 A.L.R. 628,
aff'd, 302 U. S. 302 U.S.
319.
Georgia --
Brantley v. State, 132 Ga. 573 574-579, 64
S.E. 676,
aff'd, 217 U. S. 217 U.S.
284;
Perdue v. State, 134 Ga. 300, 302-303, 67 S.E.
810.
Indiana --
see Ex parte Bradley, 48 Ind. 548, 549-558;
State ex rel. Lopez v. Killigrew, 202 Ind. 397, 403-406,
174 N.E. 808.
Kansas --
State v. McCord, 8 Kan. 232, 240-244;
see
In re Christensen, 166 Kan. 671, 675-677, 203 P.2d 258.
Kentucky --
Hoskins v. Commonwealth, 152 Ky. 805,
807-808, 154 S.W. 919.
Mississippi --
Jones v. State, 144 Miss. 52, 60-73, 109
So. 265,
motion for leave to proceed in forma pauperis denied
for want of substantial federal question, 273 U.S. 639 (citing
Trono v. United States);
Butler v. State, 177
Miss. 91, 100, 170 So. 148.
Missouri --
see State v. Simms, 71 Mo. 538, 540-541;
State v. Stallings, 334 Mo. 1, 5, 64 S.W.2d 643.
Nebraska --
Bohanan v. State, 18 Neb. 57, 58-77, 24
N.W. 390,
submission of cause set aside because of escape of
plaintiff in error, Bohanan v. State, 125 U.
S. 692;
Macomber v. State, 137 Neb. 882, 896,
291 N.W. 674.
Nevada --
In re Somers, 31 Nev. 531, 532-539, 103 P.
1073;
see State v. Teeter, 65 Nev. 584, 610, 200 P.2d
657.
New Jersey --
see State v. Leo, 34 N.J.L.J. 340,
341-342, and 356.
New York --
People v. Palmer, 109 N.Y. 413, 415-420, 17
N.E. 213;
People v. McGrath, 202 N.Y. 445, 450-451, 96
N.E. 92.
North Carolina --
State v. Correll, 229 N.C. 640,
641-642, 50 S.E.2d 717;
see State v. Matthews, 142 N.C.
621, 622-623, 55 S.E. 342.
Ohio --
State v. Behimer, 20 Ohio St. 572, 576-582;
State v. Robinson, 100 Ohio App. 466, 470-472, 137 N.E.2d
141.
Oklahoma --
Watson v. State, 26 Okl.Cr. 377, 379-390,
224 P. 368;
see Pierce v. State, 96 Okl.Cr. 76, 79, 248
P.2d 633.
South Carolina --
see State v. Gillis, 73 S.C. 318,
319-324, 53 S.E. 487;
State v. Steadman, 216 S.C. 579,
588-592,
59 S.E.2d
168.
Utah --
State v. Kessler, 15 Utah 142, 144-147, 49 P.
293.
Vermont --
see State v. Bradley, 67 Vt. 465, 472-474,
32 A. 238;
State v. Pianfetti, 79 Vt. 236, 246-247, 65 A.
84.
Washington --
State v. Ash, 68 Wash. 194, 197-203, 122
P. 995;
State v. Hiatt, 187 Wash. 226, 236, 60 P.2d
71.
In eight of these States, Indiana, Kansas, Kentucky, Nevada, New
York, Ohio, Oklahoma, and Utah, this result is based to some extent
on statutes defining the effect of granting a new trial; in four,
Colorado, Georgia, Mississippi and Missouri, on special
constitutional provisions that permit retrial for the greater
offense. Connecticut, North Carolina, and Vermont have no
constitutional provisions as to double jeopardy, but recognize the
common law prohibition.
In 17 States, the defendant cannot be retried for the greater
offense:
Alabama --
see Thomas v. State, 255 Ala. 632, 635-636,
53 So. 2d
340.
Arkansas --
Johnson v. State, 29 Ark. 31, 32-46;
see Hearn v. State, 212 Ark. 360, 361, 205 S.W.2d 477.
California --
People v. Gilmore, 4 Cal. 376;
People
v. Gordon, 99 Cal. 227, 228-232, 33 P. 901;
In re
Hess, 45 Cal. 2d
171, 175-176, 288 P.2d 5;
but see People v. Keefer, 65
Cal. 232, 234-235, 3 P. 818;
People v.
McNeer, 14 Cal. App. 2d
22, 27-30, 57 P.2d 1018;
In re Moore, 29 Cal. App. 2d
56, 84 P.2d 57.
Delaware --
see State v. Naylor, 5 Boyce 99, 114-115,
117, 28 Del. 99, 114-115, 117, 90 A. 880.
Florida --
State ex rel. Landis v. Lewis, 118 Fla. 910,
911-916, 160 So. 485;
see McLeod v. State, 128 Fla. 35,
37, 174 So. 466;
Simmons v. State, 156 Fla. 353, 354, 22
So. 2d 803.
Illinois --
Brennan v. People, 15 Ill. 511, 517-519;
People v. Newman, 360 Ill. 226, 232-233, 195 N.W. 645.
Iowa --
State v. Tweedy, 11 Iowa 350, 353-358;
State v. Coleman, 226 Iowa 968, 976, 285 N.W. 269.
Louisiana --
see State v. Harville, 171 La. 256,
258-262, 130 So. 348.
Michigan --
People v. Farrell, 146 Mich. 264, 266, 269,
272-273, 294, 109 N.W. 440;
People v. Gessinger, 238 Mich.
625, 627-629, 214 N.W. 184.
New Mexico --
State v. Welch, 37 N.M. 549, 559, 25 P.2d
211;
State v. White, 61 N.M. 109, 113,
295 P.2d
1019.
Oregon --
State v. Steeves, 29 Or. 85, 107-111, 43 P.
947;
State v. Wilson, 172 Or. 373, 382, 142 P.2d 680.
Pennsylvania --
Commonwealth v. Deitrick, 221 Pa. 7,
17-18, 70 A. 275;
Commonwealth v. Flax, 331 Pa. 145,
157-158, 200 A. 632.
Tennessee --
see Slaughter v. State, 25 Tenn. 410,
413-415;
Reagan v. State, 155 Tenn. 397, 400-402, 293 S.W.
755.
Texas --
Jones v. State, 13 Tex. 168, 184-185;
Brown v. State, 99 Tex.Cr.R. 19, 21-22, 267 S.W. 493;
but see Hill v. State, 126 Tex.Cr.R. 79, 80-81, 69 S.W.2d
409;
Joubert v. State, 136 Tex.Cr.R. 219, 220-221, 124
S.W.2d 368;
Beckham v. State, 141 Tex.Cr.R. 438, 442, 148
S.W.2d 1104;
Hall v. State, 145 Tex.Cr.R. 192, 194, 167
S.W.2d 532;
Ex parte Byrd, 157 Tex.Cr.R. 595, 597-598,
251
S.W.2d 537.
Virginia --
Stuart v. Commonwealth, 28 Grat. 950,
953-964;
see Taylor v. Commonwealth, 186 Va. 587, 589-590,
592, 43 S.E.2d 906.
West Virginia --
see State v. Franklin, 139 W.Va. 43,
64,
79 S.E.2d
692.
Wisconsin --
Radej v. State, 152 Wis. 503, 511-513, 140
N.W. 21;
but see State v. B___, 173 Wis. 608, 616-628, 182
N.W. 474;
State v. Witte, 243 Wis. 423, 427-431, 10 N.W.2d
117;
State v. Evjue, 254 Wis. 581, 586-592, 37 N.W.2d
50.
In two of these States, Virginia and Texas, the result is based
to some extent on statutes prohibiting retrial for the greater
offense, and in New Mexico on a constitutional provision to the
same effect.