United States ex rel. Somerville v. State of Illinois
Decision Date | 19 August 1970 |
Docket Number | No. 17817.,17817. |
Parties | UNITED STATES of America ex rel. Donald SOMERVILLE, Petitioner-Appellant, v. STATE OF ILLINOIS, Defendant-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
Ronald P. Alwin, Martin S. Gerber, Chicago, Ill., for appellant.
Morton Friedman, Thomas J. Immel, Asst. Atty., Gen., Chicago, Ill., William J. Scott, Atty. Gen. of Illinois, Joel M. Flaum, Asst. Atty. Gen., Chicago, Ill., of counsel, for appellee.
Before MAJOR and CASTLE, Senior Circuit Judges, and FAIRCHILD, Circuit Judge.
Donald Somerville, petitioner-appellant, prosecutes this appeal from the District Court's dismissal of his petition for habeas corpus which asserted, in substance, that he was being held in custody unlawfully pursuant to a sentence imposed following his state-court conviction in a trial which subjected him to double jeopardy in violation of the Fifth Amendment. The District Court dismissed the petition for failure to state a claim upon which relief could be granted. We affirm.
In November 1965, following a trial in the Circuit Court of Cook County, Illinois, petitioner was convicted by a jury under a November 3, 1965, indictment charging theft1 and was sentenced to the penitentiary for not less than two nor more than ten years. Upon his arraignment on this indictment the petitioner had filed a motion to dismiss the indictment on the grounds that he had previously been indicted on March 19, 1964, for the same offense, a jury impaneled and sworn on November 1, 1965, to try the issues, and on November 2, 1965, a motion of the State to nolle prosse was sustained over the objections of petitioner. The March 19, 1964, indictment did not allege intent to permanently deprive the owner of the use or benefit of the property,2 and the State's motion for a mistrial and to nolle prosse was grounded on the assertion that this indictment did not allege an offense and was therefore void. Petitioner's motion to dismiss the second indictment and for discharge was denied. His trial proceeded and resulted in the conviction assailed in the District Court habeas corpus proceeding on the basis of double jeopardy.3
At the outset we recognize that petitioner's claim of double jeopardy is to be tested by the application of federal standards. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (No. 57, October Term, 1969, April 6, 1970); Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (No. 24, October Term, 1969, April 6, 1970).4
Petitioner emphasizes that he did not attack the validity of the earlier March 19, 1964, indictment nor consent to its dismissal but, on the contrary, objected to the prosecutor's motion for a mistrial and to nolle prosse. He contends that he thus avoided any bar to his subsequent assertion of double jeopardy which might be based on any doctrine of consent, waiver or estoppel. And, petitioner argues that Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 stands for the proposition that once the jury had been selected and sworn to try him on the March 19, 1964, indictment jeopardy attached so as to bar the prosecution under the subsequent indictment, and that United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 compels the conclusion that this is so notwithstanding the invalidity of the earlier indictment.
In Downum, on the morning the case was called for trial both sides announced ready. A jury was selected, sworn, and instructed to return at 2 p. m. When it returned the prosecution asked that the jury be discharged because its key witness on two counts of the indictment was not present — a fact discovered by the prosecutor only during the noon recess. The witness had not been served with a summons, and no other arrangements had been made to assure his presence. The jury was discharged. In sustaining the claim of double jeopardy as to a retrial commenced two days later, the Supreme Court, while recognizing the valuable right of the defendant to proceed to trial before the jury he has participated in selecting, cautioned that at times this "valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him may be subordinated to the public interest — when there is an imperious necessity to do so." In this connection reference was made to Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (a "hung jury"); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 ( ); and Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 ( ). Thus Downum explicitly teaches that it does not establish an absolute right in a defendant to have his trial completed by the jury selected and sworn for that purpose which in all circumstances bars discharge of that jury without his consent and a subsequent trial for the same offense.
In United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300, Ball was indicted, together with two other men, for the murder of one William T. Box. He was acquitted and his codefendants were convicted. They appealed and won a reversal on the ground that the indictment erroneously failed to aver the time or place of Box's death. All three defendants were retried, and this time Ball was convicted. The Supreme Court sustained his double jeopardy claim, notwithstanding the invalidity of the original indictment on which he was acquitted. The precise holding as to Ball is succinctly stated (163 U.S. 662, 671, 16 S.Ct. 1192, 1195) as follows:
The "acquittal" appears to have been the operative factor dictating the result in Ball, not the mere circumstance that a jury had been impaneled and sworn. This is further evidenced by the observation made in Ball (p. 669, 16 S.Ct. p. 1194) that:
"After the full consideration which the importance of the question demands * * * and, the question being now for the first time presented to this court, we are unable to resist the conclusion that a general verdict of acquittal upon the issue of not guilty to an indictment undertaking to charge murder, and not objected to before the verdict as insufficient in that respect, is a bar to a second indictment for the same killing."
And, it was the "acquittal" which was relied upon in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, in support of the holding that Benton was "totally indistinguishable" from Ball. In reference to Ball it is said (395 U.S. 784, 797, 89 S.Ct. 2056, 2064), "the Court refused to allow the Government to allege its own error to deprive the defendant Ball of the benefit of an acquittal by a jury", after which the Court went on to say:
We perceive no proper basis for isolating the impanelling and swearing of the jury as constituting the conceptual charisma which at that point, and notwithstanding invalidity of the indictment, always serves to establish that jeopardy which, absent the defendant's consent, bars a subsequent trial for the same offense. We believe our conclusion in this respect is reinforced by the admonition in United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448, that:
In the instant appeal petitioner's conviction, unlike Ball's did not follow a previous acquittal of the same offense, and we are of the opinion that the rationale of the pertinent and governing decisions do not warrant...
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Whitfield v. Warden of Maryland House of Correction
...court thought that earlier proceedings in Somerville's case supported Whitfield's position. See United States ex rel. Somerville v. State of Illinois, 429 F.2d 1335 (7th Cir. 1970) (denying a plea of double jeopardy), vacated and remanded, 401 U.S. 1007, 91 S.Ct. 1250, 28 L.Ed.2d 543 (1971)......
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United States ex rel. Somerville v. State of Illinois, 17817.
...May 14, 1970, held that Downum was not applicable and affirmed the district court's order of dismissal. United States ex rel. Somerville v. State of Illinois, 429 F.2d 1335. On January 25, 1971, the Supreme Court decided United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543. On ......