SUPREME COURT OF THE UNITED STATES
359 U.S. 121
Bartkus v. Illinois
Argued: October 21, 22, 1958
Decided: March 30, 1959
See 360 U.S. 907, 79 S.Ct. 1283.
Mr. Walter T. Fisher, Chicago, Ill., for petitioner.
Mr. William C. Wines, Chicago, Ill., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
Petitioner, Bartkus, was indicted in a United States District Court for bank robbery. He was tried by a jury and acquitted. So far as appears the trial was conducted fairly by an able and conscientious judge. Later, Bartkus was indicted in an Illinois state court for the same bank robbery. This time he was convicted and sentenced to life imprisonment. His acquittal in the federal court would have barred a second trial in any court of the United States because of the provision in the Fifth Amendment that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ The Court today rejects Bartkus’ contention that his state conviction after a federal acquittal violates the Fourteenth Amendment to our Constitution. I cannot agree.
The Court’s holding further limits our already weakened constitutional guarantees against double prosecutions. United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314, decided in 1922, allowed federal conviction and punishment of a man who had been previously convicted and punished for the identical acts by one of our States. Today, for the first time in its history, the Court upholds the statecon viction of a defendant who had been acquitted of the same offense in the federal courts. I would hold that a federal trial following either state acquittal or conviction is barred by the Double Jeopardy Clause of the Fifth Amendment. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666 (dissenting opinion). And, quite apart from whether that clause is as fully binding on the States as it is on the Federal Government, see Adamson v. People of State of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1684, 91 L.Ed. 1903 (dissenting opinion), I would hold that Bartkus’ conviction cannot stand. For I think double prosecutions for the same offense are so contrary to the spirit of our free country that they violate even the prevailing view of the Fourteenth Amendment, expressed in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. [1]
The Fourteenth Amendment, this Court said in Palko, does not make all of the specific guarantees of the Bill of Rights applicable to the States. But, the Court noted, some of ‘the privileges and immunities’ of the Bill of Rights, ‘have been taken over * * * and brought within the Fourteenth Amendment by a process of absorption.’ 302 U.S. at page 326, 58 S.Ct. at page 152. The Court indicated that incorporated in due process were those ‘principle(s) of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ 302 U.S. at page 325, 58 S.Ct. at page 152. [2] It then held that a statute allowing a State to appeal in a criminal case did not violate such fundamental principles. But it expressly left open the question of whether ‘the state (could be) permitted after a trial free from error to try the accused over again.’ 302 U.S. at page 328, 58 S.Ct. at page 153. That question is substantially before us today.
Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times. [3] Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers. [4] By the thirteenth century it seems to have been firmly established in England, [5] where it came to be considered as a ‘universal maxim of the common law.’ [6] It is not surprising, therefore, that the principle was brought to this country by the earliest settlers as part of their heritage of freedom, [7] and that it has been recognized here as fundamental again and again. [8] Today it is found, in varying forms, not only in the Federal Constitution, but in the jurisprudence or constitutions of every State, as wel as most foreign nations. [9] It has, in fact, been described as a part of all advanced systems of law [10] and as one of those universal principles ‘of reason, justice, and conscience, of which Cicero said: ‘Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations it is the same.” [11] While some writers have explained the opposition to double prosecutions by emphasizing the injustice inherent in two punishments for the same Act, [12] and others have stressed the dangers to the innocent from allowing the full power of the state to be brought against them in two trials, [13] the basic and recurring theme has always simply been that it is wrong for a man to ‘be brought into Danger for the same Offence more than once.’ [14] Few principles have been more deeply ‘rooted in the traditions and conscience of our people.’
The Court apparently takes the position that a second trial for the same act is somehow less offensive if one of the trials is conducted by the Federal Government and the other by a State. Looked at from the standpoint of the individual who is being prosecuted, this notion is too subtle for me to grasp. If double punishment is what is feared, it hurts no less for two ‘Sovereigns’ to inflict it than for one. If danger to the innocent is emphasized, that danger is surely no less when the power of State and Federal Governments is brought to bear on one man in two trials, then when one of these ‘Sovereigns’ proceeds alone. In each case, inescapably, a man is forced to face danger twice for the same conduct.
The Court, without denying the almost universal abhorrence of such double prosecutions, nevertheless justifies the practice here in the name of ‘federalism.’ This, it seems to me, is a misuse and desecration of the concept. Our Federal Union was conceived and created ‘to establish Justice’ and to ‘secure the Blessings of Liberty,’ not to destroy any of the bulwarks on which both freedom and justice depend. We should, therefore, be suspicious of any supposed ‘requirements’ of ‘federalism’ which result in obliterating ancient safeguards. I have been shown nothing in the history of our Union, in the writings of its Founders, or elsewhere, to indicate that individual rights deemed essential by both State and Nation were to be lost through the combined operations of the two governments. Nor has the Court given any sound reason for thinking that the successful operation of our dual system of government depends in the slightest on the power to try people twice for the same act.
Implicit in the Court’s reliance on ‘federalism’ is the premise that failure to allow double prosecutions would seriously impair law enforcement in both State and Nation. For one jurisdiction might provide minor penalties for acts severely punished by the other and by accepting pleas of guilty shield wrongdoers from justice. I believe this argument fails on several grounds. In the first place it relies on the unwarranted assumption that State and Nation will seek to subvert each other’s laws. It has elsewhere been persuasively argued that most civilized nations do not and have not needed the power to try people a second time to protect themselves even when dealing with foreign lands. [15] It is inconceivable to me, as it was to the Constitutional Court of South Carolina in 1816, that ‘If this prevails among nations who are strangers to each other, (it could) fail to (prevail) with us who are so intimately bound by political ties.’ State v. Antonio, 2 Tread.Const., S.C., 776, 781. Cf. Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967.
The Court’s argument also ignores the fact that our Constitution allocates power between local and federal governments in such a way that the basic rights of each can be protected without double trials. The Federal Government is given power to act in limited areas only, but in matters properly within its scope it is supreme. It can retain exclusive control of such matters, or grant the States concurrent power on its own terms. If the States were to subvert federal laws in these areas by imposing inadequate penalties, Congress would have full power to protect the national interest, either by defining the crime to be punished and establishing minimum penalties applicable in both state and federal courts, or by excluding the States altogether. Conversely, in purely local matters the power of the States is supreme and exclusive. State courts can and should, therefore, protect all essentially local interests in one trial without federal interference. Cf. Rutkin v. United States, 343 U.S. 130, 139, 72 S.Ct. 571, 576, 96 L.Ed. 833 (dissenting opinion). In areas, however, where the Constitution has vested power in the Federal Government the States necessarily act only to the extent Congress permits, and it is no infringement on their basic rights if Congress chooses to fix penalties smaller than some of them might wish. In fact, this will rarly occur, for Congress is not likely to use indirect means to limit state power when it could accomplish the same result directly by pre-empting the field. [16]
Ultimately the Court’s reliance on federalism amounts to no more than the notion that, somehow, one act becomes two because two jurisdictions are involved. Hawkins, in his Pleas of the Crown, long ago disposed of a similar contention made to justify two trials for the same offense by different counties as ‘a mere Fiction or Construction of Law, which shall hardly take Place against a Maxim made in Favour of Life.’ [17] It was discarded as a dangerous fiction then, it should be discarded as a dangerous fiction now.
To bolster its argument that successive state and federal prosecutions do not violate basic principles of justice, the Court cites many cases. It begins with eight early state decisions which, it says, ‘clarified the issue by stating opposing arguments.’ Four of these cases held that prosecution by one government must bar subsequent prosecutions elsewhere. [18] Two of the remaining four refused to hold that concurrent jurisdiction could exist since they feared that such a holding might bring about two trials for the same offense, a result they considered too shocking to tolerate. ‘This is against natural justice,’ said the North Carolina Superior Court in 1794, ‘and therefore I cannot believe it to be law.’ [19] The seventh case cited is an inconclusive discussion coming from a State whose highest court had previously stated unequivocally that a bar against double prosecutions would exist. [20] Thus only one of these early state cases actually approves the doctrine the Court today advances, and that approval is in dicta. [21] Significantly, the highest court of the same State later expressed the view that such double trials would virtually never occur in our country. [22]
The Court relies mainly, however, on a later line of decisions starting with Fox v. State of Ohio, 5 How. 410, 12 L.Ed. 213. Most of these, like Fox itself, involved only the question of whether both State and Federal Governments could make the same conduct a crime. Although some, in dicta, admitted the possibility that double prosecutions might result from such concurrent power, others did not discuss the question. [23] Many, especially among the earlier cases, pointed out that double punishment violates the genius of our free country and therefore would never occur. As Chief Justice Taney, on circuit, said in one of them ‘Yet in all civilized countries it is recognized as a fundamental principle of justice that a man ought not to be punished twice for the same offence; and, if this pary h ad been punished * * * in the state tribunal, the court would have left it to be its duty to suspend sentence, and to represent the facts to the president, to give him an opportunity of * * * granting a pardon.’ [24] While a limited number of cases after Fox are cited in which a double conviction was upheld, in several of these the second court was so troubled by the result that only nominal sentences were imposed. [25] In fact, before United States v. Lanza, 1922, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314, where this Court upheld and encouraged the practice, the cases of actual double punishment found are so few, in relation to the great mass of criminal cases decided, that one can readily discern an instinctive unwillingness to impose such hardships on defendants. [26]
Despite its exhaustive research, the Court has cited only three cases before Lanza where a new trial after an acquittal was upheld. In one of these, United States v. Barnhart, C.C., 22 F. 285, the state court in which the defendant had been acquitted did not have jurisdiction of the action. The Federal Circuit Court relied on this lack of jurisdiction in allowing a retrial, but made an alternate holding based on the same general arguments used by the Court today. [27] The Barnhart opinion also intimated that the first trial may have been a sham. [28] Sham trials, as well as those by courts without jurisdiction, have been considered by courts and commentators not to be jeopardy, and might therefore not bar subsequent convictions. [29] In the second case cited by the Court, the state conviction followed acquittal by a federal court-martial at a time when, as the state court seemed to recognize, a military tria was thought by many not to be a trial for the purpose of double jeopardy even when both trials were conducted by the same ‘Sovereign.’ [30] The third case relied on, a 1915 decision from the State of Washington, is the only one of the three where it can fairly be said that a defendant acquitted in a proper jury trial was subsequently tried again by a jury and convicted. [31]
On may, I think infer from the fewness of the cases that retrials after acquittal have been considered particularly obnoxious, worse even, in the eyes of many, than retrials after conviction. [32] I doubt, in fact, if many practices which have been found to violate due process can boast of so little actual support. Yet it is on this meager basis that the Court must ultimately rest its finding that Bartkus’ retrial does not violate fundamental principles ‘rooted in the traditions and conscience of our peoples.’ Nor are these scattered and dubious cases unchallenged, for, balanced against them, we have a firm holding by this Court sustaining an extremely narrow construction of a federal statute in order to make a state acquittal conclusive in the federal courts and thereby avoid the evil approved today. United States v. Mason, 213 U.S. 115, 29 S.Ct. 480, 53 L.Ed. 725. That case, as well as the ‘sacred duty * * * to maintain unimpaired those securities for the personal rights of the individual which have received for ages the sanction of the jurist and the statesman,’ Ex parte Lange, 18 Wall. 163, 178, 21 L.Ed. 872, should make us doubly hesitant to encourage so blatant a violation of constitutional policies against double trials by giving an ‘illiberal construction * * * to the words of the fundamental law in which they are embodied.’ Ibid.
Since Lanza people have apparently become more accustomed to double trials, once deemed so shocking, just as they might, in time, adjust themselves to all other violations of the Bill of Rights should they be sanctioned by this our t. The Court is therefore able to find a 1943 state case, as well as four federal cases in the last five years, in which a conviction following acquittal was sustained. [33] Thus this practice, which for some 150 years was considered so undesirable that the Court must strain to find examples, is now likely to become a commonplace. For, after today, who will be able to blame a conscientious prosecutor for failing to accept a jury verdict of acquittal when he believes a defendant guilty and knowns that a second try is available in another jurisdiction and that such a second try is approved by the Highest Court in the Land? Inevitably, the victims of such double prosecutions will most often be the poor and the weak in our society, individuals without friends in high places who can influence prosecutors not to try them again. The power to try a second time will be used, as have all similar procedures, to make scapegoats of helpless, political, religious, or racial minorities and those who differ, who do not conform and who resist tyranny. See Chambers v. State of Florida, 309 U.S. 227, 236, 60 S.Ct. 472, 476, 84 L.Ed. 716.
There are some countries that allow the dangerous practice of trying people twice. I am inserting below a recent news item about a man who was tried, convicted, sentenced to prison and then was tried again, convicted and sentenced to death. [34] Similar examples are not hard to find in lands torn by revolution or crushed by dictatorship. I had thought that our constitutional protections embodied in the Double Jeopardy and Due Process Clauses would have barred any such things happening here. Unfortunately, last year’s holdings by this Court in Ciucci v. State of Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983, and Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913, and today’s affirmance of the convictions of Bartkus and Abbate cause me to fear that in an important number of cases it can happen here.
I would reverse.
Notes
^1 While I participated in the Court’s holding and opinion in Palko I have since expressed my disagreement with both, as has Mr. JUSTICE DOUGLAS. Adamson v. People of State of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1684, 91 L.Ed. 1903 (dissenting opinion). See also Rochin v. People of California, 342 U.S. 165, 174, 177, 72 S.Ct. 205, 210, 212, 96 L.Ed. 183 (concurring opinions); Hoag v. State of New Jersey, 356 U.S. 464, 477, 480, note 5, 78 S.Ct. 829, 837, 839, 2 L.Ed.2d 913 (dissenting opinion).
^2 The Court expressed the same thought in various other ways. The crucial principles were termed those ‘implicit in the concept of ordered liberty,’ 302 U.S. at page 325, 58 S.Ct. at page 152; those without which it would be impossible ‘to maintain * * * a fair and enlightened system of justice,’ ibid; or without which ‘neither liberty nor justice would exist,’ id., 302 U.S. at page 326, 58 S.Ct. at page 152; those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,’ and those whose absence creates ‘a hardship so acute and shocking that our polity will not endure it.’ Id., 302 U.S. at page 328, 58 S.Ct. at page 153.
^3 See Bonner, Lawyers and Litigants in Ancient Athens, 195; 1 Potter, Grecian Antiquities (1808), 194; Radin, Roman Law, 475, n. 28; 2 Sherman, Roman Law in the Modern World (3d ed. 1937), 488 489; Berner, Non bis in idem, 3 Archiv fur Preussisches Strafrecht (1855), 472; Digest of Justinian: Digest 48.2.7.2, translated in 11 Scott, The Civil Law, 17, as ‘The governor should not permit the same person to be again accused of crime of which he has been acquitted.’
^4 The canon law opposition to double trials stemmed from a reading given by St. Jerome in 391 A.D. to I Nahum 9 (Douay version), ‘there shall not rise a double affliction.’ (In the King James version, I Nahum 9, is given as ‘affliction shall not rise up the second time.’) Jerome drew from this the rule that God does not punish twice for the same act. See 25 Migne, Patrologia Latina (1845), 1238. This maxim found its way into church canons as early as 847 A.D. and was subsequently given as, ‘Not even God judges twice for the same act.’ See Brooke, The English Church and the Papacy, 205; 2 Maitland, Collected Papers (Fisher ed. 1911), Essay, Henry II and the Criminous Clerks, 239; 1 Pollock and Maitland, History of English Law (2d ed. 1899), 448-449; Poole, Domesday Book to Magna Carta, 206. See also Berner, op. cit., supra, note 3, emphasizing the Roman antecedents of the canon law rule.
^5 See 2 Bracton, De Legibus et Consuetudinibus Angliae (Woodbine ed. 1922), 391, 397, applying the concept even to acquittals in trial by battle. Cf. 2 Hawkins, Pleas of the Crown (4th ed. 1762), 368-379; 2 Staundeforde, Les Plees Del Corone (Rev.Ed. 1583), 105-108.
In the twelfth century avoidance of double punishment was a major element in the celebrated controversy between St. Thomas Becket and King Henry II. Henry wanted clerics who had been convicted of crimes in church courts turned over to lay tribunals for their punishment. Whether Becket was in fact correct in his assertions that Henry’s proposals would result in double punishment for the clerics has been such debated by historians. In all events, Henry’s plan was abandoned after Becket’s murder. See Brooke, op. cit., supra, note 4, at 190-214; 2 Maitland, op. cit., supra, note 4; 1 Pollock and Maitland, op. cit., supra, note 4, at 447-456; Poole, op. cit., supra, note 4, at 203-218.
^6 2 Cooley’s Blackstone (4th ed. 1899), *335, 336. See also 2 Staundeforde, op. cit, supra, note 5, at 105-108; Lambert, Crompton and Dalton, Manuall or Analecta (rev.ed. 1642), 69-70; 3 Coke, Institutes (6th ed. 1680), 213-214; 2 Hawkins, op. cit., supra, note 5, at 368-379. One commentator has stated that the concept was borrowed by English law from the canon law doctrine of criminal procedure. Radin, Anglo-American Legal History, 228.
In 1487 an exception was made in the rule by a statute dealing with the ‘Authority of the Court of Star Chamber,’ 3 Hen. 7, c. 1. At the time criminal proceedings could be brought in two ways, by government indictment and by the parties who suffered injury from the crime. 3 Hen. 7, c. 1, provided that in ‘Death or Murder’ cases a defendant acquitted or attainted under government prosecution coul be tried again on charges brought by ‘the Wife, or next Heir to him so slain.’ The Act was apparently never broadened and was given an extremely narrow construction. See Hawkins, op. cit., supra, note 5, at 373-374, 377-379. See also Staundeforde, op. cit., supra, note 5, at 106-108. It soon feel into disuse, and the legal profession was greatly shocked when, in 1818, the statute was relied on to justify the retrial of a defendant who had previously been acquitted. After many maneuvers, which included upholding the defendant’s right to trial by battle, a second acquittal was obtained, and the loophole in the ‘universal rule’ against double trials was formally plugged by Parliament. See Radin, Anglo-American Legal History, 226-227, n. 24; Kirk, ‘Jeopardy’ During the Period of the Year Books, 8 U.Pa.L.Rev. 602, 608-609.
^7 The Body of Liberties of Massachusetts (1641), clause 42, reads, ‘No man shall be twise sentenced by Civil Justice for one and the same Crime, offence, or Trespasse.’ See also The Laws and Liberties of Massachusetts (1648) (Farrand ed. 1929) 47, ‘everie Action * * * in criminal Causes shall be * * * entred in the rolls of everie Court * * * that such Actions be not afterwards brought again to the vexation of any man.’ Similarly the pleas of former conviction and acquittal were recognized in colonial Virginia. Scott, Criminal Law in Colonial Virginia, 81-82, 102.
^8 See, e.g., Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; Green v. United States, 355 U.S. 184, 198, 78 S.Ct. 221, 229, 2 L.Ed.2d 199 (majority and dissenting opinions); Commonwealth v. Olds, 1824, 5 Litt., Ky., 137; State v. Cooper, 1833, 13 N.J.L. 361, 370.
^9 All but five States recognize the principle in their constitutions. Each of these five prohibits double jeopardy as part of its common law. See Brock v. State of North Carolina, 344 U.S. 424, 429, 435, 73 S.Ct. 349, 351, 354, 97 L.Ed. 456 (dissenting opinion); American Law Institute, Double Jeopardy (1935), 61-72.
The maxim ‘non bis in idem’ is found throughout the civil law. See Batchelder, Former Jeopardy, 17 Am.L.Rev. 735. See also Berner, Non bis in idem, 3 Archiv fur Preussisches Strafrecht (1855), 472; Ku ssner, Non bis in idem, id., at 198; Donnedieu de Vabres, Droit Criminel (3d ed. 1947), 886-887; It. Codice di Procedura Penale, Art. 90, 579 (Ludus ed. 1955). But cf. Radin, Anglo-American Legal History, 228.
^10 American Law Institute, Double Jeopardy (1935), Introductory note, p. 7.
^11 Batchelder, Former Jeopardy, 17 Am.L.Rev. 735.
^12 See, e.g., Ex parte Lange, 18 Wall. 163, 168-169, 21 L.Ed. 872.
^13 See, e.g., Commonwealth v. Olds, 1824, 5 Litt., Ky., 137, 139; State v. Cooper, 1833, 13 N.J.L. 361, 370-371; 2 Tucker, Constitution of the United States, 675.
^14 2 Hawkins, op. cit., supra, note 5, at 372. See also id., at 377.
^15 Grant, The Lanza Rule of Successive Prosecutions, 32 Col.L.Rev. 1309; Grant, Successive Prosecutions by State and Nation, 4 U.C.L.A.L.Rev. 1; Developments in the Law-Conspiracy, 72 Harv.L.Rev. 920, 968, n. 347. Cf. Feldman v. United States, 322 U.S. 487, 494, 64 S.Ct. 1082, 1085, 88 L.Ed. 1408 (dissenting opinion); Knapp v. Schweitzer, 357 U.S. 371, 382, 78 S.Ct. 1302, 1309, 2 L.Ed.2d 1393 (dissenting opinion). In England the doctrine that a foreign acquittal is a good plea in bar seems to antedate the American Revolution. See Rex v. Hutchinson, as reported in Beak v. Thyrwhit, 3 Mod. 194, 87 Eng.Rep. 124 (1689), and Burrows v. Jemino, 2 Str. 733, 93 Eng.Rep. 815 (1726), but compare the report of the same case in Gage v. Bulkeley, Ridg.T.H. 263, 27 Eng.Rep. 824 (1744); Rex v. Roche, 1 Leach 134, 135n, 168 Eng.Rep. 169, 169n (1775). Cf. Rex v. Thomas, 1 Sid. 179, 82 Eng.Rep. 1043; 1 Lev. 118, 83 Eng.Rep. 326; 1 Keb. 663, 83 Eng.Rep. 1172 (1664); 2 Hawkins, op. cit., supra, note 5, at 372. See also Rex v. Aughet, 26 Cox C.C. 232, 238 (C.C.A.1918); 10 Halsbury, The Laws of England (3d ed. 1955), 405.
^16 See, e.g., Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581. Cf. Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546. Significantly, United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314, involved the only situation where the Court’s argument may have had some slight validity. For that case was concerned with a prohibition violation, and the Eighteenth (Prohibition) Amendment could be taken to have established an area of concurrent state and national power where the Federal Government was not supreme. See Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 500, 76 S.Ct. 477, 479, 100 L.Ed. 640.
^17 2 Hawkins, op. cit., supra, note 5, at 370. See also 2 Staundeforde, op. cit., supra, note 5, at 105-106.
^18 State v. Antonio, 1816, 2 Tread.Const., S.C., 776; State v. Randall, 1827, 2 Aikens, Vt., 89; Harlan v. People, 1843, 1 Doug., Mich., 207; Commonwealth v. Fuller, 1844, 8 Metc. 313, 49 Mass. 313.
^19 State v. Brown, 1794, 2 N.C. *100, 101. See also Mattison v. State, 1834, 3 Mo. *421.
^20 State v. Tutt, 1830, 2 Bailey, S.C., 44. Compare State v. Antonio, 1816, 2 Tread.Const., S.C., 776.
^21 Hendrick v. Commonwealth, 1834, 5 Leigh 707, 32 Va. 707.
^22 Jett v. Commonwealth, 1867, 18 Grat. 933, 947, 959, 59 Va. 933, 947, 959.
^23 See, e.g., State v. Duncan, 221 Ark. 681, 255 S.W.2d 430; Dashing v. State, 78 Ind. 357; State v. Gauthier, 121 Me. 522, 118 A. 380, 26 A.L.R. 652; Commonwealth v. Nickerson, 236 Mass. 281, 128 N.E. 273, 10 A.L.R. 1568; State v. Holm, 139 Minn. 267, 166 N.W. 181, L.R.A.1918C, 304; State v. Whittemore, 50 N.H. 245; State v. Frach, 162 Or. 602, 94 P.2d 143; Commonwealth ex rel. O’Brien v. Burke, 171 Pa.Super. 273, 90 A.2d 246; Jett v. Commonwealth, 18 Grat. 933, 59 Va. 933. See also State v. Tutt, 2 Bailey, S.C. 44; State v. Brown, 2 N.C. *100. Dicta can, of course, be found which runs against the Court’s holding. See, e.g., Nielsen v. State of Oregon, 212 U.S. 315, 320, 29 S.Ct. 383, 384, 53 L.Ed. 528, where this Court said: ‘Where an act is * * * prohibited and punishable by the laws of both states, the one first acquiring jurisdiction of the person may prosecute the offense, and its judgment is a finality in both states, so that one convicted or acquitted in the courts of the one state cannot be prosecuted for the same offense in the courts of the other.’ And United States v. Furlong, 5 Wheat. 184, 197, 5 L.Ed. 64, ‘Robbery on the seas is * * * within the criminal jurisdiction of all nations * * * and there can be no doubt that the plea of autre fois acquit would be good in any civilized State, though resting on a prosecution instituted in the Courts of any other civilized State.’
^24 United States v. Amy, 24 Fed.Cas. pages 792, 811, No. 14,445. See also Fox v. State of Ohio, 5 How. 410, 435, 12 L.Ed. 213; United States v. Wells, 28 Fed.Cas. page 522, No. 16,665; Jett v. Commonwealth, 18 Grat. 933, 947, 59 Va. 933, 947.
^25 See, e.g., United States v. Palan, C.C., 167 F. 991, 992 993, ‘to punish a man twice for the same offence shocks the sense of justice.’ See also United States v. Holt, D.C., 270 F. 639, 642 643.
^26 The Court also relies on cases arising since Lanza where fear of that holding caused tight construction of federal laws to avoid double prosecutions. See Jerome v. United States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640; Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. Cf. Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 509, 76 S.Ct. 477, 483, 100 L.Ed. 640. These cases can hardly be thought to approve the result they sought to avoid.
^27 The case involved the killing of an Indian by white men on an Indian reservation. The court said: ‘The defendants have never been tried for the offense charged in this indictment. For either, the state court before which they were tried had no jurisdiction in the premises, and then the proceeding set forth in the pleas was a nullity; or if it had, it was of an offense against the law of the state and not the United States.’ 22 F. at page 291. The court was correct in its belief that the state court had no jurisdiction. See Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251. The decision was on a demurrer to a plea of former acquittal and it does not appear whether the federal jury convicted.
^28 The court noted, ‘No white man was ever hung for killing an Indian, and no Indian tried for killing a white man ever escaped the gallows.’ 22 F. at page 289.
^29 See, e.g., United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300; Edwards v. Commonwealth, 233 Ky. 356, 25 S.W.2d 746. Cf. United States v. Mason, 213 U.S. 115, 120, 125, 29 S.Ct. 480, 481, 483, 53 L.Ed. 725. See also 2 Hawkins, op. cit., supra, note 5, at 370.
^30 State v. Rankin, 1867, 44 Tenn. 145, 157, 4 Cold. 145, 157. The Rankin court cited an account of a federal court-martial following acquittal by Florida territorial courts. Similarly, United States v. Cashiel, 1863, 25 Fed.Cas. page 318, No. 14,744, upheld a federal prosecution following prosecution by the United States military authorities.
^31 State v. Kenney, 83 Wash. 441, 145 P. 450.
^32 See, e.g., Commonwealth v. Olds, 5 Litt., Ky., 137, 139; State v. Cooper, 13 N.J.L. 361, 370-371. See also Iowa Const., I.C.A., art. I, § 12; Mich.Const., art. II, § 14; Mo.Const., V.A.M.S., art. I, § 19; N.H.Const., Pt.First art. 16; N.J.Const., art. I, 11; R.I.Const., art. I, § 7; Tex.Const., Vernon’s Ann.St., art. I, § 14. The Federal Bill of Rights did not, of course, differentiate between retrials after acquittal and retrials after conviction; it banned both.
^33 State of New Jersey v. Cioffe, 1943, 130 N.J.L. 160, 32 A.2d 79; Serio v. United States, 5 Cir., 1953, 203 F.2d 576; Jolley v. United States, 5 Cir., 1956, 232 F.2d 83; Smith v. United States, 6 Cir., 1957, 243 F.2d 877; Rios v. United States, 9 Cir., 1958, 256 F.2d 173.
^34 The New York Times for October 22, 1958, p. 4, col. 6, carried the following item under the Moscow date line:
‘A 19-year-old ‘stilyag’ (zoot-suiter) was re-tried and sentenced to death following public protests that the original ten to twenty-five-year term imposed for killing a militiaman during a robbery was too lenient, the newspaper Komsomolskaya Pravda said today.
‘The condemned youth was Victor Shanshkin, leader of a gang of four youths who tried to break into a Moscow store last May, according to the newspaper of the Young Communist Organization.
‘He pumped seven bullets into the militiaman, who tried to prevent the robbery.
‘The four escaped, but were later arrested and sentenced to prison terms ranging from ten to twenty-five years. The sentences aroused widespread public protests.
‘At the second trial, held recently, Shanshkin was sentenced to die. The other three, all under 20 years of age, were ordered to serve prison terms ranging from ten to twenty years.’
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