Newman v. United States
| Decision Date | 10 March 1969 |
| Docket Number | No. 21814.,21814. |
| Citation | 133 US App. DC 271,410 F.2d 259 |
| Parties | Chester R. NEWMAN, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Carl S. Rauh, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and David C. Woll, Asst. U. S. Attys., were on the brief, for appellee.
Messrs. William G. Reynolds, Jr. and Lawrence E. Shinnick, Asst. U. S. Attys., also entered appearances for appellee.
Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and BURGER, Circuit Judge.
The appellant contends that his conviction for carrying a pistol without a license, 22 D.C.Code § 3204 (1967), violates the constitutional prohibition against double jeopardy because of a former prosecution arising out of the same transaction for unlawful possession of a pistol after a previous weapons offense conviction, 22 D.C.Code § 3203(4) (1967). The former prosecution, in which the appellant waived his right to a jury trial, terminated when the Government entered a nolle prosequi after the witnesses in the case were sworn, but before the first witness had begun to testify.
The Government argues that jeopardy had not attached in the first proceeding and, alternatively, that reprosecution was not barred under the Fifth Amendment because the offenses involved required different evidentiary proof. Because we agree that jeopardy had not attached, we do not need to confront the prickly question of under which circumstances a second prosecution is barred for a technically different statutory offense arising out of a single transaction.
Both parties agree with the general rule that "Jeopardy attaches in a case without a jury when the accused has been subjected to a charge and the court has begun to hear evidence." Clawans v. Rives, 70 App.D.C. 107, 109, 104 F.2d 240, 242, 122 A.L.R. 1436 (1939); accord, Hunter v. Wade, 169 F.2d 973, 975, 8 A.L.R.2d 277 (10th Cir.1948), aff'd on other grounds, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949). The problem, never confronted before by this Court, is when the court "has begun to hear evidence." The appellant, relying upon an unsupported dictum of the District Court in United States v. Dickerson, 168 F.Supp. 899, 902 (D.D.C.1958), rev'd on other grounds, 106 U.S.App.D. C. 221, 271 F.2d 487 (1959), argues...
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