344 U.S. 424 (1953), 34, Brock v. North Carolina

Docket NºNo. 34
Citation344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456
Party NameBrock v. North Carolina
Case DateFebruary 02, 1953
CourtUnited States Supreme Court

Page 424

344 U.S. 424 (1953)

73 S.Ct. 349, 97 L.Ed. 456



North Carolina

No. 34

United States Supreme Court

Feb. 2, 1953

Argued October 23, 1952



At a criminal prosecution of petitioner in a North Carolina state court, the judge declared a mistrial on the motion of the prosecution after two of the State's witnesses refused to give any testimony before the jury. Petitioner was later convicted of the same offense in another trial, and his plea of double jeopardy overruled.

Held: To try petitioner a second time for the same offense after a first trial had been interrupted in the interests of justice did not violate the Due Process Clause of the Fourteenth Amendment. Pp. 424-428.

234 N.C. 390, 67 S.E.2d 282, affirmed.

Petitioner was convicted in a criminal prosecution in a North Carolina state court. The State Supreme Court affirmed. 234 N.C. 390, 67 S.E.2d 282. This Court granted certiorari. 343 U.S. 914. Affirmed, p. 428.

MINTON, J., lead opinion

MR. JUSTICE MINTON delivered the opinion of the Court.

The petitioner and two others, Jim Cook and Elmer Matthews, employees on strike from a mill at Tarboro, North Carolina, were arrested for firing five shots from a passing auto into the house of a watchman at the mill, J. D. Wyatt. Wyatt's house was occupied at the time of the shooting by himself, his wife, his daughter and

Page 425

son-in-law, and the latter couple's baby. After the shooting, the petitioner and Cook and Matthews were taken to the jail. In the presence of the sheriff, a police officer, and the petitioner, Cook stated that the petitioner had helped plan the assault, and had fired the shots.

Cook and Matthews were tried first, and were found guilty of assault with a deadly weapon. Before judgments were entered on their convictions, the petitioner was placed on trial. The State put three witnesses on the stand, the sheriff, the police officer, and Wyatt's son-in-law. The State then put Cook and Matthews on the stand, intending to use their testimony to corroborate that of the other three witnesses. Cook and Matthews refused to answer the questions of the State on the ground that such answers might tend to incriminate them, and their counsel informed the court that, in the event of an adverse judgment on their convictions, they would appeal therefrom to the Supreme Court of North Carolina. The trial court upheld their refusal to answer. The State represented to the court that the testimony of Cook and Matthews was necessary for the State to present its case fully before the jury, and moved that the [73 S.Ct. 350] court withdraw a juror from the sworn panel and declare a mistrial. The court did so, stating:

being of the opinion that the ends of justice require that the State have available for its [sic] testimony of the witnesses Jim Cook and Elmer Matthews when the case is tried, and that the State is entitled to have those witnesses to testify after their cases have been disposed of in the Supreme Court, in its discretion, withdraws a juror . . . and orders a mistrial of this case, and that the same be continued.

The petitioner objected.

The Supreme Court of North Carolina affirmed the convictions of Cook and Matthews. State v. Matthews, 231 N.C. 617, 58 S.E.2d 625. The State then proceeded to impanel a

Page 426

jury for the second time, and this time it tried the petitioner to conclusion before this panel. He objected that to do so would place him in jeopardy a second time, and thus deny him due process of law, contrary to the provisions of the Fourteenth Amendment to the Constitution of the United States. His objection was overruled, and he was placed on trial. Cook testified as a witness for the State. The petitioner was found guilty and sentenced to two years' imprisonment. From this judgment, he appealed to the Supreme Court of North Carolina, which affirmed his conviction. State v. Brock, 234 N.C. 390, 67 S.E.2d 282. He then sought certiorari here, which we granted. 343 U.S. 914.

North Carolina has said there is no double jeopardy, because the trial court has the discretion to declare a mistrial and require the defendant to be presented before another jury if it be in the interest of justice to do so. This has long been the common law rule in North Carolina. State v. Brock, supra; State v. Dove, 222 N.C. 162, 22 S.E.2d 231; State v. Guice, 201 N.C. 761, 161 S.E. 533; State v. Weaver, 13 Ired.L. (35 N.C.) 203.

The question whether such a procedure would be double jeopardy under the Fifth Amendment to the Constitution of the United States is not raised in this case, as the Fifth Amendment applies only to federal jurisdictions. Palko v. Connecticut, 302 U.S. 319; Twining v. New Jersey, 211 U.S. 78.

The question before us is whether the requirement that the defendant shall be presented for trial before a second jury for the same offense violates due process of law as required of the State under the Fourteenth Amendment. The question has been here before under different circumstances. In Palko v. Connecticut, supra, the defendant was first tried for murder in the first degree, and was found

Page 427

guilty of murder in the second degree. Pursuant to a statute of Connecticut, the State appealed and obtained a reversal for errors of law at the trial. The defendant was retried, convicted of murder in the first degree, and sentenced to death. An appeal to this Court raised the question whether or not the requirement that he stand trial a second time for the same offense placed him twice in jeopardy, in violation of due process.

This Court held that the State had not denied the defendant due process of law. In order to indicate the nature of due process, this Court asked two questions:

Is that kind of double jeopardy to which the state has subjected him a hardship so acute and shocking that our polity will not endure it? Does it violate those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions"? . . . The answer surely must be "no."

302 U.S. 319, 328. Here, the answer must be the same.

This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served. Wade v. Hunter, 336 U.S. 684; Thompson v. United States, 155 U.S. 271, 273-274. As was said in Wade v. Hunter, supra, p. 690,

[73 S.Ct. 351]

a trial can be discontinued when particular circumstances manifest a necessity for so doing, and when failure to discontinue would defeat the ends of justice.

Justice to either or both parties may indicate to the wise discretion of the trial judge that he declare a mistrial and require the defendant to stand trial before another jury. As in all cases involving what is or is not due process, so, in this case, no hard and fast rule can be laid down. The pattern of due process is picked out in the facts and circumstances of

Page 428

each case. The pattern here, long in use in North Carolina, does not deny the fundamental essentials of a trial, "the very essence of a scheme of ordered justice," which is due process.

The judgment is


MR. JUSTICE BLACK took no part in the consideration or decision of this case.

FRANKFURTER, J., concurring


Once it is agreed that the claim here made -- freedom from being tried a second time on a criminal charge -- must be tested by the independent scope of the Due Process Clause of the Fourteenth Amendment, and not on the basis of the incorporation of the Fifth Amendment into the Fourteenth, the application of the guarantee of due process to a specific situation makes relevant the specific phrasing of a common result. I therefore deem it appropriate to add a word to the Court's opinion, in which I join.

The judicial history of the Fifth Amendment in prohibiting any person from being "subject for the same offence to be twice put in jeopardy of life or limb" serves as a good pragmatic confirmation of the compelling reasons why the original Bill of Rights was found to limit the actions of the Federal Government, and not those of the States. The conflicting views expressed in Ex parte Lange, 18 Wall. 163; Kepner v. United States, 195 U.S. 100; Trono v. United States, 199 U.S. 521; In re Bradley, 318 U.S. 50, and Wade v. Hunter, 336 U.S. 684, indicate the subtle technical controversies to which the provision of the Fifth Amendment against double jeopardy has given rise. Implications have been found in that provision very different from the mood of fair dealing and

Page 429

justice which the Fourteenth Amendment exacts from a State in the prosecution of offenders. A State falls short of its obligation when it callously subjects an individual to successive retrials on a charge on which he has been acquitted or prevents a trial from proceeding to a termination in favor of the accused merely in order to allow a prosecutor who has been incompetent or casual or even ineffective to see if he cannot do better a second time.

Unless we can say that the trial judge was not justified in the circumstances of this case in concluding that the ground for requesting a mistrial was fair and not oppressive to the accused, we would not be warranted in finding that the North Carolina, through its Supreme Court, denied the petitioner due process of law. The record does not seem to me to justify such a finding.

VINSON, J., dissenting


The petitioner and two others, Cook and Matthews, were indicted for shooting into the home of J. D. Wyatt when Wyatt and four other persons were present therein. After arrest, Cook and Matthews confessed, charging Brock with firing the shots. Brock made no confession.

Cook and Matthews were tried together. Wyatt, Hathaway, and Bardin, the sheriff of the county, were the...

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