In a New Jersey State Court, petitioner was tried and acquitted
on three separate indictments (joined for trial) for statutory
robbery of three persons on the same occasion. Subsequently, he was
indicted, tried and convicted for robbing a fourth person during
the same occurrence.
his conviction did not violate the Due Process
Clause of the Fourteenth Amendment. Pp. 356 U. S.
(a) He was not put twice in jeopardy for the same crime. New
Jersey construes the statute under which he was indicted as making
each of the four robberies, though taking place on the same
occasion, a separate offense, and nothing in the Due Process Clause
prevented the State from making that construction. Pp. 356 U. S.
(b) In the circumstances of this case, he was not deprived of
due process by consecutive trials, even though the multiple
offenses arose out of the same occurrence. Pp. 356 U. S.
(c) Whether States must apply collateral estoppel in criminal
trials need not be decided; because the state courts held that
petitioner's acquittal did not give rise to such an estoppel, and
this Court would not be justified in substituting its view as to
the basis of the jury's verdict. Pp. 356 U. S.
(d) In the circumstances of this case, he was not denied a
speedy trial. P. 356 U. S.
(e) The sufficiency of the evidence to support the
identification of petitioner as one of the robbers is a matter
solely within the province of the state courts. Pp. 356 U. S.
21 N.J. 496, 122
Page 356 U. S. 465
MR. JUSTICE HARLAN delivered the opinion of the Court.
In this case, we are asked to set aside, under the Due Process
Clause of the Fourteenth Amendment, a state conviction secured
under somewhat unusual circumstances.
On June 26, 1951, a Bergen County, New Jersey, grand jury
returned three indictments against the petitioner charging that, on
September 20, 1950, in concert with two others, he robbed three
individuals, Cascio, Capezzuto and Galiardo at Gay's Tavern in
Fairview, New Jersey. These indictments were joined for trial. The
State called five witnesses: the three victims named in the
indictment, and two other persons, Dottino and Yager. Dottino and
Yager were also victims of the robbery, but they were not named in
the indictment. All the witnesses, after stating that they were in
Gay's Tavern on September 20, testified to the elements of a
robbery as defined in the New Jersey statute: [Footnote 1
] that they were put in fear, and that
property was taken from their persons. The petitioner, who claimed
that he was not at the tavern on the fateful day and testified to
an alibi, was the sole witness for the defense. Although Galiardo
and Dottino had both identified petitioner from a photograph during
the police investigation, only one of the witnesses, Yager,
identified him at the trial as one of the robbers. On May 27, 1952,
the jury acquitted the petitioner on all three indictments.
Page 356 U. S. 466
Subsequently, on July 17, 1952, another Bergen County grand jury
returned a fourth indictment against petitioner, which was the same
as the first three in all respects except that it named Yager as
the victim of the robbery at Gay's Tavern. At the trial upon this
indictment, the State called only Yager as a witness, and he
repeated his earlier testimony identifying petitioner. The defense
called Cascio, Capezzuto, Galiardo and Dottino, and they each once
again testified either that petitioner was not one of the robbers
or that a positive identification was not possible. Petitioner
repeated his alibi. This time, the jury returned a verdict of
guilty. The conviction was sustained on appeal in both the Superior
Court of New Jersey, 35 N.J.Super. 555,
114 A.2d 573
, and the Supreme Court of New Jersey, 21 N.J. 496,
. We granted certiorari to consider petitioner's claim,
timely raised below, that he was deprived of due process. 352 U.S.
Petitioner contends that the second prosecution growing out of
the Gay's Tavern robberies infringed safeguards of the Double
Jeopardy Clause of the Fifth Amendment which are "implicit in the
concept of ordered liberty," and that these safeguards, as such,
are carried over under the Fourteenth Amendment as restrictions on
the States. Palko v. Connecticut, 302 U.
, 302 U. S. 325
More particularly, it is said that petitioner's trial for the
robbery of Yager, following his previous acquittal on charges of
robbing Cascio, Capezzuto, and Galiardo, amounted to trying him
again on the same charges. However, in the circumstances shown by
this record, we cannot say that petitioner's later prosecution and
conviction violated due process.
At the outset, it should be made clear that petitioner has not
been twice put in jeopardy for the same crime. The New Jersey
courts, in rejecting his claim that conviction for robbing Yager
violated the Double Jeopardy
Page 356 U. S. 467
Clause of the State Constitution, [Footnote 2
] have construed the New Jersey statute as
making each of the four robberies, though taking place on the same
occasion, a separate offense. This construction was consistent with
the usual New Jersey rule that double jeopardy does not apply
unless the same evidence necessary to sustain a second indictment
would have been sufficient to secure a conviction on the first.
See State v. Di Giosia,
3 N.J. 413, 419, 70 A.2d
, 759; State v. Labato,
7 N.J. 137, 144, 80 A.2d
, 620. Certainly nothing in the Due Process Clause prevented
the State from making that construction.
But even if it was constitutionally permissible for New Jersey
petitioner for each of the four robberies as
separate offenses, it does not necessarily follow that the State
was free to prosecute
him for each robbery at a different
trial. The question is whether this case involved an attempt "to
wear the accused out by a multitude of cases with accumulated
trials." Palko v. Connecticut, supra,
at 302 U. S. 328
We do not think that the Fourteenth Amendment always forbids
States to prosecute different offenses at consecutive trials even
though they arise out of the same occurrence. The question in any
given case is whether such a course has led to fundamental
unfairness. Of course, it may very well be preferable practice for
Page 356 U. S. 468
in circumstances such as these normally to try the several
offenses in a single prosecution, and recent studies of the
American Law Institute have led to such a proposal. See
Model Penal Code § 1.08(2) (Tent.Draft.No.5, 1956). [Footnote 4
] But it would be an entirely
different matter for us to hold that the Fourteenth Amendment
always prevents a State from allowing different offenses arising
out of the same act or transaction to be prosecuted separately, as
New Jersey has done. [Footnote
] For it has long been recognized as the very essence of our
federalism that the States should have the widest latitude in the
administration of their own systems of criminal justice. See
Hurtado v. California, 110 U. S. 516
Maxwell v. Dow, 176 U. S. 581
West v. Louisiana, 194 U. S. 258
Twining v. New Jersey, 211 U. S. 78
the last analysis, a determination whether an impermissible use of
multiple trials has taken place cannot be based on any overall
formula. Here, as elsewhere, "The pattern of due process is picked
out in the facts and circumstances of each case." Brock v.
North Carolina, 344 U. S. 424
344 U. S.
-428. And thus, without speculating as to
Page 356 U. S. 469
hypothetical situations in which the Fourteenth Amendment might
prohibit consecutive prosecutions of multiple offenses, we reach
the conclusion that the petitioner in this case was not deprived of
In Brock v. North Carolina, supra,
this Court upheld a
state conviction against a somewhat similar claim of denial of due
process. In Brock,
two of the State's key witnesses had
previously been tried and convicted of crimes arising out of the
same transaction which formed the basis of the charge against the
petitioner. Before judgments were entered on their convictions,
they were called by the testify at petitioner's trial. Because of
their intention to appeal their convictions and the likelihood of a
new trial in the event of reversal, the two witnesses declined to
testify at petitioner's trial on the ground that their answers
might be self-incriminatory. At this point, the States was granted
a mistrial upon its representation that the evidence of the two
witnesses was necessary to its case and that it intended to procure
their testimony at a new trial of the petitioner. This Court held
that a second trial of the petitioner did not violate due
Remembering that the Yager robbery constituted a separate
offense from the robberies of the other victims, we find no basis
for a constitutional distinction between the circumstances which
led to the retrial in Brock
and those surrounding the
subsequent indictment and trial in the present case. It is a fair
inference from the record before us that the indictment and trial
on the charge of robbing Yager resulted from the unexpected failure
of four of the State's witnesses at the earlier trial to identify
petitioner, after two of these witnesses had previously identified
him in the course of the police investigation. Indeed, after the
second of the two witnesses failed to identify petitioner, the
State pleaded surprise and attempted to impeach his testimony. We
Page 356 U. S. 470
that, after such an unexpected turn of events, the State's
decision to try petitioner for the Yager robbery was so arbitrary
or lacking in justification that it amounted to a denial of those
concepts constituting "the very essence of a scheme of ordered
justice,' which is due process." Brock v. North Carolina,
supra, at 344 U. S. 428.
Thus, whatever limits may confine the right of a State to institute
separate trials for concededly different criminal offenses, it is
plain to us that these limits have not been transgressed in this
Petitioner further contends that his conviction was
constitutionally barred by "collateral estoppel." His position is
that because the sole disputed issue in the earlier trial related
to his identification as a participant in the Gay's Tavern
robberies, the verdict of acquittal there must necessarily be taken
as having resolved that issue in his favor. The doctrine of
collateral estoppel, so the argument runs, is grounded in
considerations of basic fairness to litigants, and thus for a State
to decline to apply the rule in favor of a criminal defendant
deprives him of due process. Accordingly, it is claimed that New
Jersey could not relitigate the issue of petitioner's "identity,"
and is thus precluded from convicting him of robbing Yager.
A common statement of the rule of collateral estoppel is that
"where a question of fact essential to the judgment is actually
litigated and determined by a valid and final judgment, the
determination is conclusive between the parties in a subsequent
action on a different cause of action." Restatement, Judgments, §
68(1). As an aspect of the broader doctrine of res
collateral estoppel is designed to eliminate the
expense, vexation, waste, and possible inconsistent results of
duplicatory litigation. See
Developments in the Law --
65 Harv.L.Rev. 818, 820. Although the rule
was originally developed in connection with civil litigation, it
has been widely employed in criminal cases in both
Page 356 U. S. 471
state and federal courts. See, e.g., Harris v. State,
193 Ga. 109, 17 S.E.2d 573; Commonwealth v. Evans,
Mass. 25; United States v. Oppenheimer, 242 U. S.
; Sealfon v. United States, 332 U.
; cf. Yates v. United States,
354 U. S. 298
354 U. S.
Despite its wide employment, we entertain grave doubts whether
collateral estoppel can be regarded as a constitutional
requirement. Certainly this Court has never so held. However, we
need not decide that question, for, in this case, New Jersey both
recognized the rule of collateral estoppel and considered its
applicability to the facts of this case. The state court simply
ruled that petitioner's previous acquittal did not give rise to
such an estoppel, because
"the trial of the first three indictments involved several
questions, not just [petitioner's] identity, and there is no way of
knowing upon which question the jury's verdict turned."
21 N.J. at 505, 122 A.2d at 632. Possessing no such corrective
power over state courts as we do over the federal courts, see
Watts v. Indiana, 338 U. S. 49
338 U. S. 50
note 1, we would not be justified in substituting a different view
as to the basis of the jury's verdict.
It is, of course, true that, when necessary to a proper
determination of a claimed denial of constitutional rights, this
Court will examine the record in a state criminal trial, and is not
foreclosed by the conclusion of the state court. Niemotko v.
Maryland, 340 U. S. 268
340 U. S. 271
Feiner v. New York, 340 U. S. 315
340 U. S. 316
But this practice has never been thought to permit us to overrule
state courts on controverted or fairly debatable factual
"On review here of State convictions, all those matters which
are usually termed issues of fact are for conclusive determination
by the State courts and are not open for reconsideration by this
Court. Observance of this restriction in our review of State courts
calls for the utmost scruple."
Watts v. Indiana, supra,
at 338 U. S.
Page 356 U. S. 472
In this case, we are being asked to go even further than to
overrule a state court's findings on disputed factual issues. For
we would have to embark on sheer speculation in order to decide
that the jury's verdict at the earlier trial necessarily embraced a
determination favorable to the petitioner on the issue of
"identity." In numerous criminal cases, both state and federal
courts have declined to apply collateral estoppel because it was
not possible to determine with certainty which issues were decided
by the former general verdict of acquittal. See, e.g., People
102 Misc. 437, 170 N.Y.S. 86; State v.
101 Utah 365, 422-424, 120 P.2d 285, 312-313;
United States v. Halbrook, 36 F.
. Keeping in mind the fact that jury verdicts are
sometimes inconsistent or irrational, see, e.g., Dunn v. United
States, 284 U. S. 390
United States v. Dotterweich, 320 U.
, 320 U. S. 279
Green v. United States, 355 U. S. 184
cannot say that the New Jersey Supreme Court exceeded
constitutionally permissible bounds in concluding that the jury
might have acquitted petitioner at the earlier trial because it did
not believe that the victims of the robbery had been put in fear,
or that property had been taken from them, or for other reasons
unrelated to the issue of "identity." For us to try to outguess the
state court on this score would be wholly out of keeping with the
proper discharge of our difficult and delicate responsibilities
under the Fourteenth Amendment in determining whether a State has
violated the Federal Constitution.
Finally, in the circumstances shown by this record, we cannot
hold that petitioner was denied a "speedy trial" on the Yager
indictment, whatever may be the reach of the Sixth Amendment under
the provisions of the Fourteenth. [Footnote 6
] And we need hardly add that the
Page 356 U. S. 473
of the evidence to support the identification of the petitioner
as one of the Gay's Tavern robbers is a matter solely within the
province of the state courts.
MR. JUSTICE BRENNAN took no part in the consideration or
decision of this case.
Section 2:166-1 of the Revised Statutes of New Jersey, under
which petitioner was indicted, provided:
"Any person who shall forcibly take from the person of another,
money or personal goods and chattels, of any value whatever, by
violence or putting him in fear . . . shall be guilty. . . ."
This section was subsequently repealed and substantially
reenacted. N.J.Stat.Ann.1953, § 2A:141-1.
Article I, par. 11, of the New Jersey Constitution provides in
part that "No person shall, after acquittal, be tried for the same
Indeed, the New Jersey Superior Court recognized this problem
under the double jeopardy clause of the State Constitution when it
said in the present case:
"Assuredly our prosecutors are aware that the concept of double
jeopardy is designed to prevent the government from unduly
harassing an accused, and we are confident that they will not
resort unfairly to multiple indictments and successive trials in
order to accomplish indirectly that which the constitutional
35 N.J.Super. at 561-562, 114 A.2d at 577.
Horack, The Multiple Consequences of a Single
Criminal Act, 21 Minn.L.Rev. 805; Kirchheimer, The Act, The Offense
and Double Jeopardy, 58 Yale L.J. 513; Gershenson, Res
in Successive Criminal Prosecutions, 24 Brooklyn
The New Jersey Rules in force during 1952 provided:
"Rule 2:4-15 Joinder of Offenses [now Revised Rule 3:4-7]:"
"Two or more offenses may be charged in the same indictment or
accusation in a separate court for each offense if the offenses
charged, whether high misdemeanors or misdemeanors or both are of
the same or similar character or are based on the same act or
transaction or on two or more acts or transactions connected
together or constituting parts of a common scheme or plan."
"Rule 2:5-4 Trial of Indictments or Accusations Together [now
Revised Rule 3:5-6]:"
"The court may order two or more indictments or accusations to
be tried together if the offenses and the defendants, if there is
more than one, could have been joined in a single indictment or
The robbery at Gay's Tavern occurred on September 20, 1950. On
September 23 or 24, 1950, petitioner absconded from parole in New
York. He was arrested on November 20, 1950, and returned to prison
in New York, where he remained until January 12, 1952, when he was
transferred to the Bergen County jail in New Jersey. In the
meantime, on June 26, 1951, the Bergen County grand jury returned
indictments charging petitioner with the robberies of Cascio,
Capezzuto and Galiardo. These were tried together at petitioner's
first trial, on May 26 and 27, 1952. Following his acquittal,
petitioner was returned to New York to complete his sentence, and
he was in a New York prison on July 17, 1952, when the Bergen
County grand jury returned the indictment charging him with the
robbery of Yager. New Jersey reacquired petitioner by extradition
on May 11, 1954. The second trial was held on October 18, 1954, at
the next term of the Bergen County Court, which was not in session
for criminal trials during the summer months. It thus appears that
a substantial portion of the time elapsing prior to petitioner's
trial on the Yager indictment can be accounted for by his
incarceration in New York.
MR. CHIEF JUSTICE WARREN, dissenting.
I think the undisputed facts disclosed by this record plainly
show that the conviction of this petitioner has been obtained by
use of a procedure inconsistent with the due process requirements
of the Fourteenth Amendment. These are the facts: on Sept. 20,
1950, three armed men entered a tavern in Fairview, New Jersey,
lined up five persons against a wall, and robbed each of them.
Petitioner alone was charged in three indictments with robbery of
three of these five victims. The three indictments were joined for
trial. At his trial, petitioner put only one fact in issue --
whether or not he was one of the men who had committed the robbery.
Page 356 U. S. 474
victims testified for the State on this issue. Three said
petitioner was not the man; one said he could not swear that
petitioner was the man; one made a positive identification of
petitioner. Petitioner's sole defense was an alibi. He sought to
establish his presence elsewhere at the time of the robbery. The
jury heard all the evidence, duly deliberated, and found petitioner
not guilty. Thereafter, petitioner was indicted and tried for the
robbery of victim number four. This time, only the victim who had
identified petitioner as one of the robbers at the first trial was
called by the State as a witness. The other four victims testified
for the defense. All five testified substantially as at the first
trial. Again, the only contested issue was whether petitioner was
one of the three robbers. Again, petitioner testified that he was
in New York City at the time of the robbery. This time, the jury
found petitioner guilty.
The issue is whether or not this determination of guilt, based
as it is on the successive litigation of a single issue that had
previously been resolved by a jury in petitioner's favor, is
contrary to the requirements of fair procedure guaranteed by the
Due Process Clause of the Fourteenth Amendment. The issue is not
whether petitioner has technically committed five offenses, nor
whether he could receive a total of five punishments had he been
convicted in a single trial of robbing five victims.
Few would dispute that, after the first jury had acquitted
petitioner of robbing the first three victims, New Jersey could not
have retried petitioner on the identical charge of robbing these
same three persons. After a jury of 12 had heard the conflicting
testimony of the five victims on the issue of the robber's identity
and concluded that at least a reasonable doubt existed as to
whether petitioner was one of the robbers, the same evidence could
not be presented to 12 new jurors in the hope that they would come
to a different conclusion. I fail to
Page 356 U. S. 475
see how the unconstitutionality of that procedure is altered one
whit by the fact that the new indictment, brought in this case
after petitioner's acquittal, relates to a different victim of the
same robbery. The name of the particular victim specified in the
indictment has absolutely no bearing on the issue of the robber's
identity. The vice of this procedure lies in relitigating the same
issue on the same evidence before two different juries with a man's
innocence or guilt at stake. This taints the second trial, whether
the new indictment charges robbery of the same or different
The Court finds it unnecessary to come to grips with this
problem, because it elects to defer to the appraisal of the record
made by a 4-3 majority of the New Jersey Supreme Court. That court
concluded that the first trial raised issues other than identity of
the robber, thus making it impossible to say that the jury's
verdict of acquittal resolved the issue of identity favorably to
petitioner. This Court now concludes that the state court's
appraisal of the record was a resolution of the sort of "factual
issue" that is normally not open for reconsideration by this Court.
But "issue of fact' is a coat of many colors." Watts v.
Indiana, 338 U. S. 49,
338 U. S. 51. In
my view, the issue posed here is not a "fact issue" at all. The
facts are clear and undisputed. The problem is to judge their legal
significance. And since the claim of a denial of due process
depends on an evaluation of the significance of these undisputed
facts, the task of making that evaluation is inescapably the
function of this Court. Niemotko v. Maryland, 340 U.
S. 268, 340 U. S. 271;
Watts v. Indiana, supra; Fay v. New York, 332 U.
S. 261, 332 U. S.
Assessing the significance of a jury verdict in some criminal
cases may involve, as the Court terms it, "sheer speculation." But
the records of other trials are such as to indicate plainly, when
"viewed with an eye to all the circumstances of the proceedings,"
Page 356 U. S. 476
States, 332 U. S. 575
that a jury verdict of acquittal is determinative of a particular
issue that was contested at that trial. This Court unanimously
found the record in Sealfon v. United States, supra,
sufficient to justify such a conclusion. Cf. Emich Motors Corp.
v. General Motors Corp., 340 U. S. 558
Other courts have similarly evaluated trial records and come to the
same conclusion in situations where, precisely as in the instant
case, the sole contested issue was the identity of the criminal.
United States v. De Angelo,
138 F.2d 466; Harris v.
193 Ga. 109, 17 S.E.2d 573; People v.
77 Misc. 202, 137 N.Y.S. 538. Of course, such a
review of the record cannot tell us in fact what was in the mind of
each juror. This we would not know even if the issue of the
robber's identity in this case had been submitted to the jury as a
special interrogatory, for an answer in petitioner's favor might
reflect a wide assortment of "facts" believed by each juror. But
because a court cannot say with certainty what was in the mind of
each juror is no reason for declining to examine a record to
determine the manifest legal significance of a jury's verdict.
Evaluating the record in this case requires no speculation. The
only contested issue was whether petitioner was one of the robbers.
The proof of the elements of the crime of robbery was overwhelming,
and was not challenged. The suggestion that the jury might have
acquitted because of a failure of proof that property was taken
from the victims is simply unrealistic. The guarantee of a
constitutional right should not be denied by such an artificial
approach. The first jury's verdict of acquittal is merely an
illusion of justice if its legal significance is not a
determination that there was at least a reasonable doubt whether
petitioner was present at the scene of the robbery.
Page 356 U. S. 477
The Court's effort to enlist Brock v. North Carolina,
344 U. S. 424
aid of the conclusions reached is, in my view, entirely
unwarranted. In that case, a trial was halted before completion
when two state witnesses unexpectedly invoked their privilege
against self-incrimination and declined to testify. Upon a motion
by the prosecutor, a mistrial was declared. On retrial, the
defendant was convicted, and this Court affirmed. Whatever view one
might take of the correctness of that decision, its holding should
not be expanded to cover the situation here. The obvious difference
between that case and this is that Brock
does not involve
determination of the same issue by two different juries. At the
trial, the case never went to the jury. Here,
however, the prosecution did not ask for a mistrial when its own
witnesses failed to give expected testimony. Instead, the State
proceeded to the conclusion of the trial, and the issue of guilt,
which turned solely on the issue of identity, went to the jury. The
verdict was in petitioner's favor. The trial was free of error. To
convict petitioner by litigating this issue again before 12
different jurors is to employ a procedure that fails to meet the
standard required by the Fourteenth Amendment.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
We recently stated in Green v. United States,
355 U. S. 184
355 U. S. 190
that by virtue of the constitutional protection against double
jeopardy an accused can be forced to "run the gantlet" but once on
a charge. That case, involving a federal prosecution, provides for
me the standard for every state prosecution as well, and by that
standard this judgment of conviction should be reversed. [Footnote 2/1
Page 356 U. S. 478
Hoag is made to run the gantlet twice. The facts are simple.
Five men -- Cascio, Capezzuto, Galiardo, Dottino, and Yager -- were
together at Gay's Tavern when three armed men entered and robbed
them. Petitioner was indicted and tried for the offenses of robbing
three of the five.
One indispensable element of the crime was the taking of
property "by violence or putting him in fear," as provided by the
New Jersey statute defining robbery. N.J.Stat.Ann.1939, 2:166-1.
] The critical
evidence was petitioner's alibi: he claimed to be at another place
at the time. One witness, however, identified him as one of the
robbers. The jury acquitted. Then petitioner was indicted for
robbing one of the remaining five named individuals. The criminal
transaction, unlike that in Burton v. United States,
202 U. S. 344
202 U. S. 378
was indivisible. The time and place were the same. [Footnote 2/3
] The central issue was the same, for,
as stated by Justice Heher, dissenting, below,
". . . here, the assaults were simultaneous, the putting in fear
was but a single act or offense operating
Page 356 U. S. 479
alike upon all the victims of the felonious endeavor at the same
21 N.J. at 510, 122 A.2d at 635. The basic facts canvassed were
the same. Petitioner's alibi was tendered once more. The testimony
of the self-same witness identifying petitioner as one of the
robbers was introduced. This time, petitioner was convicted.
The resolution of this crucial alibi issue in favor of the
prosecution was as essential to conviction in the second trial as
its resolution in favor of the accused was essential to his
acquittal in the first trial. Since petitioner was placed in
jeopardy once and found not to have been present or a participant,
he should be protected from further prosecution for a crime growing
out of the identical facts and occurring at the same time.
Page 356 U. S. 480
Hoag was once made to "run the gantlet" on whether he was
present when the violence and putting in fear occurred. Having once
run that gantlet successfully, he may not be compelled to run it
again. [Footnote 2/5
See Brock v. North Carolina, 344 U.
, 344 U. S. 440
This section has been repealed and reenacted in substantially
the same form. N.J.Stats.Ann.1953, 2A:141-1.
Gavieres v. United States, 220 U.
, arose in the Philippines under an Act of
Congress which applied to the Islands the protection of double
jeopardy. Petitioner was first convicted of being drunk and
indecent in a public place, an offense under an ordinance of
Manila. Then he was convicted a second time for insulting a public
official, a crime under the penal code of the Islands. The acts and
words charged in the second prosecution were the same as those
charged in the first. The Court sustained the second conviction,
Mr. Justice Harlan dissenting, on the grounds that, while "the
conduct of the accused was one and the same, two offenses resulted,
each of which had an element not embraced in the other."
at 220 U. S. 345
This case appears contrary to the position I take here. But it,
like other cases arising under the laws of the Philippine Islands
prior to their independence, has not been deemed an authoritative
construction of the constitutional provision. See Green v.
United States, supra,
at 355 U. S.
In 1912, a New York court, under almost identical circumstances,
"The only litigated question of fact on both these indictments
is the presence of the accused when these crimes were committed.
That question having been once decided, it cannot again be tried.
Should the jury in this case find the defendant guilty under the
defense herein interposed, that of an alibi, we would be confronted
with two incompatible verdicts, which would amount to a finding on
the one hand that the defendant was not present, and on the other
hand that he was present."
People v. Grzesczak,
77 Misc. 202, 206, 137 N.Y.S. 538,
Or, as Chitty said:
"It is not, in all cases, necessary that the two charges should
be precisely the same in point of degree, for it is sufficient if
an acquittal of the one will show that the defendant could not have
been guilty of the other."
1 Chitty, Criminal Law (5th Am. ed. 1847), 455.
To like effect is State v. Shepard, 7 Conn. 54, 55-56,
"He has been convicted of an assault, with an attempt to
commit a rape;
for this, he has been punished. Of these facts
he has been found guilty, and they must be alleged and proved to
convict him of a rape. But for these facts he cannot be tried
again; otherwise, he might be twice punished for the same
And see State v. Cooper,
13 N.J.L. 361; State v.
7 N.J. 137, 80 A.2d
; Commonwealth v. Roby,
12 Pick. 496, 504-505, 29
Mass. 496, 504-505.
The result I reach does not square with Palko v.
Connecticut, 302 U. S. 319
Palko was indicted for the crime of murder in the first degree, and
was found guilty by a jury of murder in the second degree. He was
sentenced to confinement for life. Pursuant to a state statute, the
prosecution appealed and obtained a reversal and a new trial. This
time, Palko was convicted of murder in the first degree and
sentenced to death. That is a decision under the Double Jeopardy
Clause with which I do not agree, since Palko was forced to face
the risk of the death penalty twice on the same evidence and the