355 U.S. 184 (1957), 46, Green v. United States

Docket Nº:No. 46
Citation:355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199
Party Name:Green v. United States
Case Date:December 16, 1957
Court:United States Supreme Court

Page 184

355 U.S. 184 (1957)

78 S.Ct. 221, 2 L.Ed.2d 199



United States

No. 46

United States Supreme Court

Dec. 16, 1957

Argued April 25, 1957

Restored to the calendar for reargument June 24, 1957

Reargued October 15, 1957




Petitioner was indicted and tried in a federal court for first degree murder. The judge instructed the jury that it could find him guilty of either first degree murder or second degree murder. The jury found him guilty of second degree murder, and its verdict was silent on the charge of first degree murder. The trial judge accepted the verdict, entered judgment, dismissed the jury and sentenced petitioner to imprisonment. On appeal, his conviction was reversed and the case was remanded for a new trial. On remand, petitioner was tried again for first degree murder under the original indictment, convicted of first degree murder and sentenced to death, notwithstanding his plea of former jeopardy.

Held: Petitioner's second trial for first degree murder placed him in jeopardy twice for the same offense in violation of the Fifth Amendment, and the conviction is reversed. Pp. 185-198.

(a) Petitioner's jeopardy for first degree murder came to an end when the jury was discharged at the conclusion of his first trial, and he could not be retried for that offense. Pp. 190-191.

(b) By making a successful appeal from his improper conviction of second degree murder, petitioner did not waive his constitutional defense of former jeopardy to a second prosecution on the first degree murder charge. Pp. 191-193.

(c) In order to secure the reversal of an erroneous conviction of one offense, a defendant need not surrender his valid defense of former jeopardy on a different offense for which he was not convicted and which was not involved in his appeal. Pp. 193-194.

(d) Trono v. United States, 199 U.S. 521, distinguished. Pp. 194-198.

98 U.S.App.D.C. 413, 236 F.2d 708, reversed.

Page 185

BLACK, J., lead opinion

Opinion of the Court by MR. JUSTICE BLACK announced by MR. JUSTICE DOUGLAS.

This case presents a serious question concerning the meaning and application of that provision of the Fifth Amendment to the Constitution which declares that no person shall

. . . be subject for the same offence to be twice put in jeopardy of life or limb. . . .

The petitioner, Everett Green, was indicted by a District of Columbia grand jury in two counts. The first charged that he had committed arson by maliciously setting fire to a house.1 The second accused him of causing the death of a woman by this alleged arson, which, if true, amounted to murder in the first degree punishable by death.2 Green entered a plea of not guilty to both counts, and the case was tried by a jury. After each side had presented its evidence the trial judge instructed the jury that it could find Green guilty of arson under the first count and of either (1) first degree murder or (2) second degree murder under the second count. The trial judge treated second degree murder, which is defined by the District Code as the killing of another with malice

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aforethought and is punishable by imprisonment [78 S.Ct. 223] for a term of years or for life,3 as an offense included within the language charging first degree murder in the second count of the indictment.

The jury found Green guilty of arson and of second degree murder, but did not find him guilty on the charge of murder in the first degree. Its verdict was silent on that charge. The trial judge accepted the verdict, entered the proper judgments, and dismissed the jury. Green was sentenced to one to three years' imprisonment for arson and five to twenty years' imprisonment for murder in the second degree. He appealed the conviction of second degree murder. The Court of Appeals reversed that conviction because it was not supported by evidence, and remanded the case for a new trial. 95 U.S.App.D.C. 45, 218 F.2d 856.

On remand, Green was tried again for first degree murder under the original indictment. At the outset of this second trial, he raised the defense of former jeopardy, but the court overruled his plea. This time, a new jury found him guilty of first degree murder, and he was given the mandatory death sentence. Again he appealed. Sitting en banc, the Court of Appeals rejected his defense of former jeopardy, relying on Trono v. United States, 199 U.S. 521, and affirmed the conviction. 98 U.S.App.D.C. 413, 236 F.2d 708. One judge concurred in the result, and three judges dissented, expressing the view that Green had twice been placed in jeopardy, in violation of the Constitution. We granted certiorari, 352 U.S. 915. Although Green raises a number of other contentions here,

Page 187

we find it necessary to consider only his claim of former jeopardy.

The constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. In his Commentaries, which greatly influenced the generation that adopted the Constitution, Blackstone recorded:

. . . the plea of auterfois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England that no man is to be brought into jeopardy of his life more than once for the same offence.4

Substantially the same view was taken by this Court in Ex parte Lange, 18 Wall. 163, at 169:

The common law not only prohibited a second punishment for the same offence, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted.5

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity,

Page 188

as well as enhancing the possibility that, even though innocent, he may be found guilty.

In accordance with this philosophy, it has long been settled under the Fifth Amendment that a verdict of [78 S.Ct. 224] acquittal is final, ending a defendant's jeopardy, and, even when "not followed by any judgment, is a bar to a subsequent prosecution for the same offence." United States v. Ball, 163 U.S. 662, 671. Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous. United States v. Ball, supra; Peters v. Hobby, 349 U.S. 331, 344-345. Cf. Kepner v. United States, 195 U.S. 100; United States v. Sanges, 144 U.S. 310.

Moreover, it is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge. This Court, as well as most others, has taken the position that a defendant is placed in jeopardy once he is put to trial before a jury, so that, if the jury is discharged without his consent, he cannot be tried again. Wade v. Hunter, 336 U.S. 684; Kepner v. United States, 195 U.S. 100, 128. In general, see American Law Institute, Administration of The Criminal Law: Double Jeopardy 61-72 (1935). This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict. At the same time, jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where "unforeseeable circumstances . . . arise during [the first] trial making its completion impossible, such as the failure of a jury to agree on a verdict." Wade v. Hunter, 336 U.S. 684, 688-689.

Page 189

At common law, a convicted person could not obtain a new trial by appeal except in certain narrow instances.6 As this harsh rule was discarded, courts and legislatures provided that, if a defendant obtained the reversal of a conviction by his own appeal, he could be tried again for the same offense.7 Most courts regarded the new trial as a second jeopardy, but justified this on the ground that the appellant had "waived" his plea of former jeopardy by asking that the conviction be set aside.8 Other courts viewed the second trial as continuing the same jeopardy which had attached at the first trial by reasoning that jeopardy did not come to an end until the accused was acquitted or his conviction became final.9 But whatever the rationalization, this Court has also held that a defendant can be tried a second time for an offense when his prior conviction for that same offense had been set aside on appeal. United States v. Ball, 163 U.S. 662.

[78 S.Ct. 225] In this case, however, we have a much different question. At Green's first trial, the jury was authorized to find him guilty of either first degree murder (killing while

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perpetrating a felony) or, alternatively, of second degree murder (killing with malice aforethought).10 The jury found him guilty of second degree murder, but, on his appeal, that conviction was reversed and the case remanded for a new trial. At this new trial, Green was tried again, not for second degree murder, but for first degree murder, even though the original jury had refused to find him guilty on that charge and it was in no way involved in his appeal.11 For the reasons stated hereafter, we conclude that this second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution.12

Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that...

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