United States v. Ragen

• Decision Date: 03 May 1950
• Docket Number: No. 10065.,10065.
• Citation: 181 F.2d 1001
• Parties: UNITED STATES ex rel. DE FRATES v. RAGEN.
• Court: U.S. Court of Appeals — Seventh Circuit

181 F.2d 1001 (1950)

UNITED STATES ex rel. DE FRATES v. RAGEN.

No. 10065.

United States Court of Appeals Seventh Circuit.

May 3, 1950.

Robert V. Conners, Chicago, Ill., for appellant.

Ivan A. Elliott, Atty. Gen., Harry K. O'Melia, Asst. Atty. Gen., for appellee.

Before DUFFY and FINNEGAN, Circuit Judges, and BRIGGLE, District Judge.

DUFFY, Circuit Judge.

Petitioner was convicted in the Criminal Court of Cook County, Illinois, of the crimes of rape and an offense against nature. On appeal the judgment of conviction and sentence was affirmed by the Supreme Court of Illinois, People v. De Frates, 395 Ill. 439, 70 N.E.2d 591. A petition for certiorari was denied by the United States Supreme Court. De Frates v. People of State of Illinois, 331 U.S. 811, 67 S.Ct. 1201, 91 L.Ed. 1831.

One of the grounds asserted for reversal before the Illinois Supreme Court was that petitioner had been placed in double jeopardy under the following circumstances. Petitioner was first tried on the charges above stated in January, 1946. After three days of trial, the jury retired and, after deliberating 45 minutes, returned to the courtroom where the judge asked the foreman whether the jury had reached a verdict. The foreman answered, "Just about." The court then directed him to say either "Yes" or "No," and the foreman then answered "No." The court then discharged the jury, and another trial was subsequently held, the jury there finding petitioner herein guilty. Petitioner claims that a poll of the first jury was taken, after it was dismissed, which showed that eleven jurors had voted for acquittal, and the twelfth juror was about to do so.

On the appeal the Illinois Supreme Court stated, 395 Ill. pages 445-446. 70 N.E.2d page 594: "It is urged the defendant was required to stand trial a second time due to the fact that at his first trial the jury was discharged without cause after only forty-five minutes of deliberation and that this constituted double jeopardy. * * * It is apparent the court acted rather hastily but we hardly see how the record justifies the assertion that the trial court abused its discretion in the premises, nothing appearing to show such abuse. A court of review will not presume an abuse of discretion. It has long been recognized by this court and elsewhere that a court of justice is invested with the authority to discharge a jury from giving any verdict whenever, in the court's opinion, there is manifest necessity for such act or the ends of public justice would otherwise be defeated, and that such is within the discretion of the trial court and is not subject to review in the absence of abuse of discretion. (Citing cases.) The record here does not show abuse of discretion."

After the United States Supreme Court denied his petition for certiorari, petitioner sought a writ of habeas corpus in the United States district court on the theory that his right to protection against double jeopardy is an inherent part of due process guaranteed under the Fourteenth Amendment, United States Constitution. The district judge denied the petition without a hearing on the merits, stating that he would not sit in review of the decision of the Illinois Supreme Court. From the order dismissing the petition for a writ of habeas corpus this appeal is taken.

It is difficult indeed to understand the action of the State court judge in discharging the first jury after only 45 minutes of deliberation. The record does not show any reason for such haste, and none has been suggested. However, the conduct of the trial judge, of which the petitioner here complains, was squarely presented to the Supreme Court of Illinois as an alleged error in the trial, and the Supreme Court held that the trial judge had not abused his discretion, and De Frates' contention that he had been placed in double jeopardy was overruled. The United States Supreme Court refused to grant certiorari.

We have been admonished that the denial of a petition for a writ of certiorari by the United States Supreme Court carries with it no implication whatever regarding the merits of the case which the court has declined to review. Maryland v. Baltimore Radio Show, Inc., et al., 338 U.S. 912, 70 S.Ct. 252 (opinion of Justice Frankfurter); Sunal v. Large, 332 U.S. 174, 181, 67 S.Ct. 1588, 91 L.Ed. 1982; House v. Mayo, 324 U.S. 42, 48, 65 S.Ct. 517, 89 L.Ed. 739. However, in a habeas corpus case the Supreme Court stated, Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 450, 88 L.Ed. 572: "Where the state courts have considered and adjudicated the merits of his (petitioner's) contentions, and this Court has either reviewed or declined to review the state court's decision, a federal court will not ordinarily reexamine upon a writ of habeas corpus the questions thus adjudicated. * * *"

The only right under the federal Constitution of which the petitioner in the case at bar claims to be deprived is his right to be protected from double jeopardy. The sole specific reference in the United States Constitution to what is usually referred to as "double jeopardy" is in the Fifth Amendment: "* * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; * * *." But the Fifth Amendment is not directed to the States and applies only to offenses against, and trials under, the laws of the United States. Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; Phillips v. McCauley, 9 Cir., 92 F.2d 790.

But petitioner argues that the protection given by the United States Constitution against federal action has been absorbed into the Fourteenth Amendment,¹ which amendment is directed against State action. The argument is made that protection against double jeopardy is an inherent part of the "due process" clause of the Fourteenth Amendment.²

It is now settled law, for the time being at least, that the Fourteenth Amendment has not absorbed the first eight amendments, as such. In Wolf v. People of State of Colorado, 338 U.S. 25, 26, 69 S.Ct. 1359, 1360, the court said: "* * * The notion that the `due process of law' guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution and thereby incorporates them has been rejected by this Court again and again, after impressive consideration. See, e.g. Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232; Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. Only the other day the Court reaffirmed this rejection after thorough reexamination of the scope and function of the Due Process Clause of the Fourteenth Amendment. Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223. The issue is closed."

Nevertheless the Supreme Court has held that the validity of certain immunities guaranteed against the federal government by specific pledges of particular constitutional amendments is equally binding against the States, because such immunities are implicit in the concept of ordered liberty and thus within the scope of the Fourteenth Amendment. Such rights and immunities have been said to be basic and fundamental to the right of life and liberty guaranteed by the Constitution. Among the rights thus treated are freedom of speech,³ freedom of the press,⁴ freedom of religion,⁵ freedom of speech and assembly,⁶ and the right, under certain circumstances, as in capital cases, to counsel in criminal prosecutions.⁷

But not all of the rights and immunities mentioned in the first eight amendments have been treated in the same manner. Although the Fifth Amendment provides that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury, the court has held that prosecution by a State may be on information at the instance of a public officer.⁸ The Fifth Amendment also provides that no person in a criminal case shall be compelled to be a witness against himself; but the court has held that a State may by law end that privilege in a State prosecution.⁹ It has also been held that the provisions of the Sixth and Seventh Amendments as to jury trials in criminal and civil cases may be modified by a State or abolished altogether.¹⁰

The Supreme Court has considered the question whether the right granted in the Fifth Amendment to be not twice placed in jeopardy for the same offense is within the scope of the due process clause of the Fourteenth Amendment. In Palko v. State of Connecticut, 302 U.S. 319, 323, 58 S.Ct. 149, 151, 82 L.Ed. 288, the court stated: "We have said that in appellant's view the Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth. His thesis is even broader. Whatever would be a violation of the original bill of rights (Amendments 1 to 8) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule."

The court then held that the claimed double jeopardy there being considered was not a violation of the due process clause.

In State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422, the court assumed for the purpose of the discussion, but specifically did not so decide, that violation of the Fifth and Eighth Amendments, as to double jeopardy and cruel and inhuman punishment, would be violation of the due process clause of the Fourteenth Amendment. Thus our highest court has not in any decision so far rendered specifically brought a citizen's immunity to be twice placed in jeopardy into that family of fundamental rights encompassed within the protection of the due process clause of the Fourteenth Amendment.

The Supreme Court has many times invited attention to the established policy of both the federal...