395 U.S. 784 (1969), 201, Benton v. Maryland

Docket Nº:No. 201
Citation:395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707
Party Name:Benton v. Maryland
Case Date:June 23, 1969
Court:United States Supreme Court

Page 784

395 U.S. 784 (1969)

89 S.Ct. 2056, 23 L.Ed.2d 707




No. 201

United States Supreme Court

June 23, 1969

Argued December 12, 1968

Reargued March 24, 1969



Petitioner was tried in a Maryland state court for burglary and larceny. He was acquitted of larceny, but convicted of burglary and sentenced to 10 years in prison. Because the grand and petit juries in petitioner's case had been selected under an invalid constitutional provision, the case was remanded to the trial court and petitioner was given, and exercised, the option of demanding reindictment and retrial. Reindicted for larceny and burglary, petitioner filed, on the ground of double jeopardy, a motion to dismiss the larceny count, which the trial court denied. On retrial, he was found guilty of both offenses, and concurrently sentenced to 15 years for burglary and 5 years for larceny. The appellate court ruled against petitioner on the double jeopardy issue and affirmed.


1. The concurrent sentence doctrine enunciated in Hirabayashi v. United States, 320 U.S. 81, 105, does not constitute a jurisdictional bar to this Court's deciding petitioner's challenge to his larceny conviction, since the possibilities of adverse collateral effects to him from that conviction give the case an adversary cast and make it justiciable. Pp. 787-791.

2. Regardless of whether the concurrent sentence doctrine survives as a rule of judicial convenience, the doctrine is inapplicable here, since the Maryland appellate court decided not to apply the doctrine, and upheld the larceny conviction despite petitioner's double jeopardy contention, and since the status of petitioner's burglary conviction is still in some doubt. Pp. 791-793.

3. The double jeopardy prohibition of the Fifth Amendment, a fundamental ideal in our constitutional heritage, is enforceable against the States through the Fourteenth Amendment. Palko v. Connecticut, 302 U.S. 319, overruled. Pp. 793-796.

4. Petitioner's larceny conviction cannot stand, since

[c]onditioning an appeal on one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy.

Green v. United States, 355 U.S. 184, 193-194. Pp. 796-797.

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5. The question raised by petitioner that prejudicial error resulted from the admission at his trial for both burglary and larceny of some evidence that state law made inadmissible in a trial for burglary alone was not decided by the Maryland appellate court, and should now be considered by that court. Pp. 797-798.

1 Md.App. 647, 232 A.2d 541, vacated and remanded.

MARSHALL, J., lead opinion

MR. JUSTICE MARSHALL delivered the opinion of the Court.

In August, 1965, petitioner was tried in a Maryland state court on charges of burglary and larceny. The jury found petitioner not guilty of larceny, but convicted him on the burglary count. He was sentenced to 10 years in prison. Shortly after his notice of appeal was filed in the Maryland Court of Appeals, that court handed down its decision in [89 S.Ct. 2058] the case of Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965). In Schowgurow, the Maryland Court of Appeals struck down a section of the state constitution which required jurors to swear their belief in the existence of God. As a result of this decision, petitioner's case was remanded to the trial court.

Page 786

Because both the grand and petit juries in petitioner's case had been selected under the invalid constitutional provision, petitioner was given the option of demanding reindictment and retrial. He chose to have his conviction set aside, and a new indictment and new trial followed. At this second trial, petitioner was again charged with both larceny and burglary. Petitioner objected to retrial on the larceny count, arguing that, because the first jury had found him not guilty of larceny, retrial would violate the constitutional prohibition against subjecting persons to double jeopardy for the same offense. The trial judge denied petitioner's motion to dismiss the larceny charge, and petitioner was tried for both larceny and burglary. This time the jury found petitioner guilty of both offenses, and the judge sentenced him to 15 years on the burglary count1 and 5 years for larceny, the sentences to run concurrently. On appeal to the newly created Maryland Court of Special Appeals, petitioner's double jeopardy claim was rejected on the merits. 1 Md.App. 647, 232 A.2d. 541 (1967). The Court of Appeals denied discretionary review.

On the last day of last Term, we granted certiorari, 392 U.S. 925 (1968), but limited the writ to the consideration of two issues:

(1) Is the double jeopardy clause of the Fifth Amendment applicable to the States through the Fourteenth Amendment?

(2) If so, was the petitioner "twice put in jeopardy" in this case?

Page 787

After oral argument, it became clear that the existence of a concurrent sentence on the burglary count might prevent the Court from reaching the double jeopardy issue, at least if we found that any error affected only petitioner's larceny conviction. Therefore, we scheduled the case for reargument, 393 U.S. 994 (1968), limited to the following additional question not included in the original writ:

Does the "concurrent sentence doctrine," enunciated in Hirabayashi v. United States, 320 U.S. 81, 105, and subsequent cases, have continuing validity in light of such decisions as Ginsberg v. New York, 390 U.S. 629, 633, n. 2, Peyton v. Rowe, 391 U.S. 54, Carafass v. LaVallee, 391 U.S. 234, 237-238, and Sibron v. New York, 392 U.S. 40, 50-58?

The Solicitor General was invited to file a brief expressing the views of the United States and to participate in oral argument.

After consideration of all the questions before us, we find no bar to our decision of the double jeopardy issue. On the merits, we hold that the Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment, and we reverse petitioner's conviction for larceny.


At the outset of this case, we are confronted with a jurisdictional problem. If the error specified in the original writ of certiorari were found to affect only petitioner's larceny conviction,2 reversal of that conviction would not require the State to change the terms of

Page 788

petitioner's confinement. Whatever the status of his sentence on the larceny conviction, petitioner would probably stay in prison until he had served out his sentence for burglary.3 Is there, in these circumstances, a live "case" or "controversy" suitable for resolution by this Court, or is the issue moot? Is petitioner asking for an advisory opinion on an abstract or hypothetical question? The answer to these questions is crucial, for it is well settled that federal courts may act only in the context of a justiciable case or controversy. Muskrat v. United States, 219 U.S. 346 (1911); see Flast v. Cohen, 392 U.S. 83, 94-97 (1968).

The language used in a number of this Court's opinions might be read to indicate that the existence of a valid concurrent sentence removes the necessary elements of a justiciable controversy. The "concurrent sentence doctrine" took root in this country quite early, although its earliest manifestations occurred in slightly different contexts. In Locke v. United States, 7 Cranch 339 (1813), a cargo belonging to the plaintiff in error had been condemned under a libel containing 11 counts. Chief Justice John Marshall speaking for the Court, found it unnecessary to consider Locke's challenges to all 11 counts. He declared, simply enough, "The Court however, is of opinion, that the 4th count is good, and this renders it unnecessary to decide on the others." Id. at 344. Similar reasoning was later applied in a case where a single general sentence rested on convictions under several counts of an indictment. Drawing upon some English cases and some dicta from Lord Mansfield,4 the Court in Claassen v. United States, 142 U.S. 140, 146

Page 789

(1891), held that, if the defendant had validly been convicted on any one count "the other counts need not be considered." The most widely cited application of this approach to cases where concurrent sentences, rather than a single general sentence, have been imposed is Hirabayashi v. United States, 320 U.S. 81 (1943). In that case, the defendant had been found guilty of two different offenses and had received concurrent three-month sentences. He challenged the constitutionality of both convictions, but this Court affirmed the lower court's judgment after considering and rejecting only one of his challenges. Since the conviction on the second count was valid, the Court found it "unnecessary" to consider the challenge to the first count. Id. at 85, 105.

The concurrent sentence doctrine has been widely, if somewhat haphazardly, applied in this Court's decisions. At times, the Court has seemed to say that the doctrine raises a jurisdictional bar to the consideration of counts under concurrent sentences. Some opinions have baldly declared that judgments of conviction "must be upheld" if any one count was good. Barenblatt v. United States, 360 U.S. 109, 115 (1959); see United States v. Gainey, 380 U.S. 63, 65 (1965). [89 S.Ct. 2060] In other cases, the Court has chosen somewhat weaker language, indicating only that a judgment "may be affirmed if the conviction on either count is valid." Roviaro v. United States, 353 U.S. 53, 59, n. 6 (1957). And on at least one occasion, the Court has ignored the rule entirely and decided an issue that affected only one count, even though there were concurrent sentences. Putnam v. United States, 162 U.S. 687 (1896).

One can search through these cases, and related ones, without finding any satisfactory explanation for the concurrent...

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