236 F.2d 708 (D.C. Cir. 1956), 12809, Green v. United States

Docket Nº:12809.
Citation:236 F.2d 708
Party Name:Everett D. GREEN, Appellant, v. UNITED STATES of America, Appellee.
Case Date:June 28, 1956
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 708

236 F.2d 708 (D.C. Cir. 1956)

Everett D. GREEN, Appellant,


UNITED STATES of America, Appellee.

No. 12809.

United States Court of Appeals, District of Columbia Circuit.

June 28, 1956

Reargued before Court in Banc May 8, 1956.

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Messrs. George Blow and George Rublee, II, Washington, D.C. (both appointed by this Court), with whom Mr. Charles E. Ford, Washington, D.C. (appointed by the District Court) was on the brief, for appellant.

Mr. Harold Greene, Asst. U.S. Atty., for appellee. Messrs. Leo A. Rover, U.S. Atty., at the time brief was filed, and Thomas A. Flannery and Lewis Carroll, Asst. U.S. Attys., were on the brief for appellee. Mr. Oliver Gasch, U.S. Atty., also entered an appearance for appellee.


WILBUR K. MILLER, Circuit Judge.

This case is here for the second time. On the first appeal Green's conviction of second degree murder under the second count of an indictment, which count charged murder in the first degree done in the perpetration of arson, 1 was reversed. 1955, 95 U.S.App.D.C. 45, 218 F.2d 856. Because 'all the testimony as to what occurred in the burning house pointed to murder in the first degree and nothing else,' this court held the trial judge erred in giving a second degree

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instruction. We were concerned, however, at the obvious risk Green was running in successfully appealing from the second degree murder conviction but were assured he was aware of it. With respect to this we said in the opinion, 95 U.S.App.D.C. at page 48, 218 F.2d at page 859:

'* * * In seeking a new trial at which-- if the evidence is substantially as before-- the jury will 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 inquire 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.'

After remand, Green was tried again under the first degree murder charge. As the evidence was substantially the same as before, the trial judge of course did not instruct on second degree murder. This time the jury found him guilty of murder in the first degree, and he again appeals.

Counsel appointed to represent appellant have ably presented his case in briefs and in oral argument. They rely, first, on double jeopardy. Their theory is that when the jury at the first trial found Green guilty of murder in the second degree, it acquitted him of first degree murder; that he could not be tried again on a charge of which he had been acquitted, and his defense of former acquittal asserted at the second trial should have been sustained.

Where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial for the offense of which he was previously convicted. United States v. Ball, 1896, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300; State ex rel. Francis v. Resweber, 1947, 329 U.S. 459, 462, 67 S.Ct. 374, 91 L.Ed. 422. This principle is not disputed by counsel. But the question here has an additional element and may be stated thus: Where one is convicted, not of the crime charged in the indictment under which he was tried but of a lesser included offense, and on his appeal the conviction is reversed and he is granted a new trial, may he be tried again for the crime charged in the indictment, or must the new trial be confined to the lesser offense of which he was first convicted?

This question was presented to the Supreme Court in Trono v. United States, Dec. 4, 1905, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292, a case which arose in the Philippine Islands. Mr. Justice Peckham, who wrote the principal opinion, said (199 U.S. at page 530, 26 S.Ct. at page 123):

'This question has given rise to much diversity of opinion in the various state courts. Many of them have held that the new trial must be confined to the lesser offense of which the accused had been convicted on the first trial, while other courts have held precisely the contrary, and that upon a new trial the whole case was open as if there had been no former trial. * * *'

After discussing some of the cases, Mr. Justice Peckham reached this conclusion, 199 U.S. at pages 533-534, 26 S.Ct. at page 124:

'In our opinion the better doctrine is that 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. The accused by his own action has obtained a reversal of the whole judgment, and we see no reason why he should not, upon a new trial, be proceeded against as if no trial had previously taken place. * * *

'* * * When at his own request he has obtained a new trial

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he must take the burden with the benefit, and go back for a new trial of the whole case. * * *'

Counsel for appellant say the Peckham Trono opinion is not that of the Supreme Court. They characterize it as 'a four to four opinion, with Mr. Justice Holmes concurring only in the result reached by the first four * * *.' Four justices did indeed dissent, and Mr. Justice Holmes was noted as 'concurring in the result.' The result flowed directly and solely from the Peckham conclusion that '* * * the better doctrine is that 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 * * *.' If Mr. Justice Holmes had not thought that 'the better doctrine', he could not have concurred in the result.

Moreover, some 18 months before the Trono decision, the distinguished Holmes had affirmatively asserted that to be the better doctrine. Dissenting in Kepner v. United States, May 31, 1904, 195 U.S. 100, 134, at pages 135-136, 24 S.Ct. 797, at page 807, 49 L.Ed. 114, he said:

'It might be said that when the prisoner takes exceptions he only is trying to get rid of a jeopardy that already exists-- that so far as the verdict is in his favor, as when he is found guilty of manslaughter upon an indictment for murder, according to some decisions he will keep it and can be retried only for the less offense, so that the jeopardy only is continued to the extent that it already has been determined against him, and is continued with a chance of escape. I believe the decisions referred to to be wrong * * *.'

We see no reason to suppose that 18 months later Mr. Justice Holmes had abandoned this view but nevertheless concurred in the Trono result which depended upon it.

So, whatever it was in the Peckham opinion with which the great justice did not agree, we are sure it was not Peckham's choice of 'the better doctrine,' a result in which he expressly concurred. Thus the Peckham holding which is applicable here must have been the holding of a majority of the Supreme Court. Probably that is why in the official report it is said, 199 U.S. at page 528, 26 S.Ct. at page 122, 'Mr. Justice Peckham, after making the foregoing statement, .' And why Mr. Justice Harlan, dissenting, referred, 199 U.S. at page 536, 26 S.Ct. at page 127, to Peckham's opinion as 'the opinion and judgment of the court * * *.' And why in several subsequent citations the Supreme Court and lesser tribunals have so regarded it. 2

Appellant's counsel insist the Trono decision set a precedent only for cases arising in the Philippines, and that it has no application here. They contend the Fifth Amendment's prohibition against double jeopardy did not extend to the Islands, and that therefore the Trono ruling has no application to continental cases involving the Amendment. This theory seems to us untenable. In the Trono case the Court was considering the effect of a Congressional enactment that in the Philippines 'no person for the same offense shall be twice put in jeopardy of punishment. * * *' 3 This is exactly the same as the double jeopardy provision of the Fifth Amendment, as the Court had held in the then recent case of Kepner v. United States, 1904, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114. 4 Hence what the Court said in the Trono opinion with regard to the provision

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of the Philippine statute necessarily applied to the pertinent provision of the Fifth Amendment, which has identical significance. And Mr. Justice Holmes was of that opinion, for he said in his Kepner dissent, 195 U.S. at page 134, 24 S.Ct. at page 806:

'* * * The case is 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. * * *'

Thus we see why the Trono opinion says, 'We may regard the question as thus presented as the same as if it arose in one of the Federal courts in this country * * *.' 199 U.S. at page 530, 26 S.Ct. at page 123, 50 L.Ed. 292.

Counsel say this statement is dictum; that it is not and should not be binding on a federal court. Whether so or not, the statement was a deliberate expression of opinion which we think we may not disregard; moreover, it is one with which we agree. The Trono opinion's choice of 'the better doctrine' with respect to the double jeopardy question under discussion was a ruling on a right not only guaranteed by the Philippine statute but also by the Fifth Amendment. We see no reason why it should not have general application wherever the...

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