336 U.S. 684 (1949), 427, Wade v. Hunter

Docket Nº:No. 427
Citation:336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974
Party Name:Wade v. Hunter
Case Date:April 25, 1949
Court:United States Supreme Court
 
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Page 684

336 U.S. 684 (1949)

69 S.Ct. 834, 93 L.Ed. 974

Wade

v.

Hunter

No. 427

United States Supreme Court

April 25, 1949

Argued March 7, 1949

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Syllabus

In petitioner's trial by a general court-martial of a Division of the Third Army, then advancing rapidly in Germany, the court heard evidence and arguments of counsel, closed to consider the case, reopened the same day, and continued the case in order to hear civilian witnesses not then available. Subsequently, the Commanding General of the Third Army transferred the case to the Fifteenth Army for a new trial on the ground that the tactical situation and the distance to the residence of such witnesses made it impracticable for the Third Army to conduct the court-martial. The Fifteenth Army convened a court-martial, which overruled petitioner's plea of former jeopardy and tried and convicted him.

Held: in the circumstances of this case, the double jeopardy provision of the Fifth Amendment did not bar his trial before the second court-martial. Pp. 685-692.

1. The double jeopardy provision of the Fifth Amendment does not mean that every time a defendant is put to trial before a competent tribunal, he is entitled to go free if the trial fails to end in a final judgment. P. 688.

2. A trial may be discontinued when particular circumstances manifest a necessity for so doing and when failure to discontinue would defeat the ends of justice. United States v. Perez, 9 Wheat. 579. Pp. 689-690.

3. When this may be done without barring another trial depends upon all the circumstances of the particular case, and not upon the mechanical application of an abstract formula. P. 691.

4. In this case, the record was sufficient to show that the tactical situation brought about by a rapidly advancing army resulted in withdrawal of the charges from the first court-martial, and, in the absence of charges of bad faith on the part of the Commanding General, courts should not attempt to review his on-the-spot decision that the tactical situation required transfer of the case. Pp. 691-692.

169 F.2d 973 affirmed.

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In a habeas corpus proceeding, a federal district court ordered petitioner's release on the ground that his conviction by court-martial had violated the double jeopardy provision of the Fifth Amendment. 72 F.Supp. 755. The Court of Appeals reversed. 169 F.2d 973. This Court granted certiorari. 335 U.S. 907. Affirmed, p. 692.

BLACK, J., lead opinion

MR. JUSTICE BLACK delivered the opinion of the Court.

The Fifth Amendment to the Constitution provides that a person shall not "be twice put in jeopardy of life or limb" for the same offense. The petitioner, now in prison under a court-martial conviction for a serious offense, contends he is entitled to his freedom because another court-martial had previously put him in jeopardy for the same offense. The first court-martial was dissolved by the convening authority before the court reached a decision. The Government contends that the Fifth Amendment's double jeopardy provision, if applicable to military courts, did not bar the second court-martial conviction here because, as the Government views the record, dissolution of the first court-martial was dictated by a pressing military tactical situation. The circumstances from which these contentions arise are as follows.

March 13, 1945, American troops of the 76th Infantry Division entered Krov, Germany. [69 S.Ct. 836] The next afternoon, two German women were raped by two men in American uniforms. Several days later, petitioner and another

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American soldier were arrested upon charges that they committed these offenses. Two weeks later, March 27, the troops had advanced about 22 miles farther into Germany to a place called Pfalzfeld. On that date, at Pfalzfeld, petitioner and the other soldier were put on trial before a general court-martial convened by order of the Commanding General of the 76th Infantry Division, to which Division the two soldiers were attached.1 After hearing evidence and arguments of counsel, the court-martial closed to consider the case. Later that day, the court-martial reopened and announced that the court would be continued until a later date to be fixed by the judge advocate. The reason for the continuance was the desire of the court-martial to hear other witnesses not then available before deciding the guilt or innocence of the accused.2

A week later, the Commanding General of the 76th Division withdrew the charges from the court-martial, directing it to take no further proceedings. The General then transmitted the charges to the Commanding General of the Third Army with recommendations for trial by a new court-martial. The reason for transferring the charges, as explained in a communication to the Commanding General of the Third Army, was:

The case was previously referred for trial by general court-martial, and trial was commenced. Two witnesses, the mother and father of the victim of

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the alleged rape, were unable to be present due to sickness, and the Court continued the case so that their testimony could be obtained. Due to the tactical situation, the distance to the residence of such witnesses has become so great that the case cannot be completed within a reasonable time.

The Commanding General of the Third Army concluded that the "tactical situation" of his command and its "considerable distance" from Krov made it impracticable for the Third Army to conduct the court-martial. Accordingly, he in turn transmitted the charges to the Fifteenth Army, stating that this action was necessary to carry out the policy of the American Army in Europe to accelerate prompt trials "in the immediate vicinity of the alleged offenses." Pursuant to this transmittal, the Fifteenth Army Commanding General convened a court-martial at a point about forty miles from Krov. Petitioner, represented by counsel, filed a plea in bar alleging that he had been put in jeopardy by the first court-martial proceedings and could not be tried again. His plea was overruled, the case was tried, and a conviction followed. He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and life imprisonment, which imprisonment was later reduced to twenty years.3

After exhausting his right to military review, petitioner brought this habeas corpus proceeding in a federal district court. That court ordered his release, holding that his plea of former jeopardy should have been sustained. 72 F.Supp. 755. The Court of Appeals reversed, one judge dissenting. 169 F.2d 973. We hold

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that, under the circumstances shown, the Fifth Amendment's double jeopardy provision did not bar petitioner's trial before the second court-martial.4

[69 S.Ct. 837] The interpretation and application of the Fifth Amendment's double jeopardy provision have been considered chiefly in civil, rather than military, court proceedings. Past cases have decided that a defendant, put to trial before a jury, may be subjected to the kind of "jeopardy" that bars a second trial for the same offense even though his trial is discontinued without a verdict. See Kepner v. United States, 195 U.S. 100, 128; cf. Palko v. Connecticut, 302 U.S. 319, 322-323. The same may be true where a judge trying a case without a jury fails for some reason to enter a judgment. McCarthy v. Zerbst, 85 F.2d 640, 642. The double jeopardy provision of the Fifth Amendment, however, does not mean that, every time a defendant is put to trial before a competent tribunal, he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the

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type of oppressive practices at which the double jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event, the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of a jury might be biased against the Government of the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial.5 What has been said is enough to show that a...

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