302 U.S. 319 (1937), 135, Palko v. Connecticut

Docket Nº:No. 135
Citation:302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288
Party Name:Palko v. Connecticut
Case Date:December 06, 1937
Court:United States Supreme Court

Page 319

302 U.S. 319 (1937)

58 S.Ct. 149, 82 L.Ed. 288




No. 135

United States Supreme Court

Dec. 6, 1937

Argued November 12, 1937



1. Under a state statute allowing appeal by the State in criminal cases, when permitted by the trial judge, for correction of errors of law, a sentence of life imprisonment, on a conviction of murder in the second degree, was reversed. Upon retrial, the accused was convicted of murder in the first degree and sentenced to death. Held consistent with due process of law under the Fourteenth Amendment. P. 322.

2. Assuming that the prohibition of double jeopardy in the Fifth Amendment applies to jeopardy in the same case if the new trial be at the instance of the Government, and not upon defendant's motion, it does not follow that a like prohibition is applicable against state action by force of the Fourteenth Amendment. Pp. 322 et seq.

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3. The Fourteenth Amendment does not guarantee against state action all that would be a violation of the original bill of rights (Amendments I to VIII) if done by the Federal Government. P. 323.

4. The process of absorption whereby some of the privileges and immunities guaranteed by the federal bill of rights have been brought within the Fourteenth Amendment has had its source in the belief that neither liberty nor justice would exist if they were sacrificed. P. 326.

5. It is not necessary to the decision in this case to consider what the answer would have to be if the State were permitted, after a trial free from error, to try the accused over again or to bring another case against him. P. 328.

6. The conviction of the defendant upon the retrial ordered upon the appeal by the State in this case was not in derogation of any privileges or immunities that belonged to him as a citizen of the United States. Maxwell v. Dow, 176 U.S. 581. P. 329.

122 Conn. 529; 191 Atl. 320, affirmed.

APPEAL from a judgment sustaining a sentence of death upon a verdict of guilty of murder in the first degree. The defendant had previously been convicted upon the same indictment of murder in the second degree, whereupon the State appealed and a new trial was ordered.

CARDOZO, J., lead opinion

MR. JUSTICE CARDOZO delivered the opinion of the Court.

A statute of Connecticut permitting appeals in criminal cases to be taken by the state is challenged by appellant as an infringement of the Fourteenth Amendment of the Constitution of the United States. Whether the challenge should be upheld is now to be determined.

Appellant was indicted in Fairfield County, Connecticut, for the crime of murder in the first degree. A jury

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found him [58 S.Ct. 150] guilty of murder in the second degree, and he was sentenced to confinement in the state prison for life. Thereafter, the State of Connecticut, with the permission of the judge presiding at the trial, gave notice of appeal to the Supreme Court of Errors. This it did pursuant to an act adopted in 1886 which is printed in the margin.1 Public Acts, 1886, p. 560; now § 6494 of the General Statutes. Upon such appeal, the Supreme Court of Errors reversed the judgment and ordered a new trial. State v. Palko, 121 Conn. 669, 186 Atl. 657. It found that there had been error of law to the prejudice of the state (1) in excluding testimony as to a confession by defendant; (2) in excluding testimony upon cross-examination of defendant to impeach his credibility, and (3) in the instructions to the jury as to the difference between first and second degree murder.

Pursuant to the mandate of the Supreme Court of Errors, defendant was brought to trial again. Before a jury was impaneled and also at later stages of the case, he made the objection that the effect of the new trial was to place him twice in jeopardy for the same offense, and, in so doing, to violate the Fourteenth Amendment of the Constitution of the United States. Upon the overruling of the objection, the trial proceeded. The jury returned a verdict of murder in the first degree, and the court sentenced the defendant to the punishment of

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death. The Supreme Court of Errors affirmed the judgment of conviction, 122 Conn. 529, 191 Atl. 320, adhering to a decision announced in 1894, State v. Lee, 65 Conn. 265, 30 Atl. 1110, which upheld the challenged statute. Cf. State v. Muolo, 118 Conn. 373, 172 Atl. 875. The case is here upon appeal. 28 U.S.C. § 344.

1. The execution of the sentence will not deprive appellant of his life without the process of law assured to him by the Fourteenth Amendment of the Federal Constitution.

The argument for appellant is that whatever is forbidden by the Fifth Amendment is forbidden by the Fourteenth also. The Fifth Amendment, which is not directed to the states, but solely to the federal government, creates immunity from double jeopardy. No person shall be "subject for the same offense to be twice put in jeopardy of life or limb." The Fourteenth Amendment ordains, "nor shall any State deprive any person of life, liberty, or property, without due process of law." To retry a defendant, though under one indictment and only one, subjects him, it is said, to double jeopardy in violation of the Fifth Amendment if the prosecution is one on behalf of the United States. From this the consequence is said to follow that there is a denial of life or liberty without due process of law, if the prosecution is one on behalf of the People of a State. Thirty-five years ago, a like argument was made to this court in Dreyer v. Illinois, 187 U.S. 71, 85, and was passed without consideration of its merits as unnecessary to a decision. The question is now here.

We do not find it profitable to mark the precise limits of the prohibition of double jeopardy in federal prosecutions. The subject was much considered in Kepner v. United States, 195 U.S. 100, decided in 1904 by a closely divided court. The view was there expressed for a majority of the court that the prohibition was not confined

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to jeopardy in a new and independent case. It forbade jeopardy in the same case if the new trial was at the instance of the government, and not upon defendant's motion. Cf. Trono v. United States, 199 U.S. 521. All this may be assumed for the purpose of the case at hand, though the dissenting [58 S.Ct. 151] opinions (195 U.S. 100, 134, 137) show how much was to be said in favor of a different ruling. Right-minded men, as we learn from those opinions, could reasonably, even if mistakenly, believe that a second trial was lawful in prosecutions subject to the Fifth Amendment if it was all in the same case. Even more plainly, right-minded men could reasonably believe that, in espousing that conclusion, they were not favoring a practice repugnant to the conscience of mankind. Is double jeopardy in such circumstances, if double jeopardy it must be called, a denial of due process forbidden to the states? The tyranny of labels, Snyder v. Massachusetts, 291 U.S. 97, 114, must not lead us to leap to a conclusion that a word which in one set of facts may stand for oppression or enormity is of like effect in every other.

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 I to VIII) 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 Fifth Amendment provides, among other things, that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury. This court has held that, in prosecutions by a state, presentment or indictment by a grand jury may give way to informations at the instance of a public officer. Hurtado v. California, 110 U.S. 516; Gaines v. Washington, 277 U.S. 81, 86. The Fifth Amendment provides also that no person shall be

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compelled in any criminal case to be a witness against himself. This court has said that, in prosecutions by a state, the exemption will fail if the state elects to end it. Twining v. New Jersey, 211 U.S. 78, 106, 111, 112. Cf. Snyder v. Massachusetts, supra, p. 105; Brown v....

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