Bankston v. State

• Decision Date: 01 June 1970
• Docket Number: No. 45667,45667
• Citation: 236 So.2d 757
• Parties: Albert Kenneth BANKSTON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 757

236 So.2d 757

Albert Kenneth BANKSTON v. STATE of Mississippi.

No. 45667.

Supreme Court of Mississippi.

June 1, 1970.

David B. Clark, Brandon, for appellant.

A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.

SMITH, Justice:

Albert Kenneth Bankston was convicted in the Circuit Court of Rankin County of the armed robbery of the Citizens National Bank of Plain, Mississippi, (Mississippi Code 1942 Annotated section 2367 (1956)), and sentenced to serve a term of 45 years in the penitentiary. This appeal is from that conviction and sentence.

Prior to his trial in the Circuit Court of Rankin County, Bankston had been convicted in the United States District Court for the Southern District of Mississippi, of the federal offense of robbing the Citizens National Bank of Plain and sentenced by that court to serve 25 years.

Both convictions involved and were based upon the robbery of the Citizens National Bank of Plain by Bankston on September 11, 1968, this robbery having been a crime both against the United States and the State of Mississippi.

On appeal, Bankston's principal contention is that his conviction of the offense against the United States barred his subsequent prosecution in the Rankin County Circuit Court for the offense against the State of Mississippi based upon the same unlawful act and that his trial in the latter court unconstitutionally exposed him to double jeopardy contrary to Mississippi Constitution, Article 3, section 22 (1890) and the Fifth Amendment of the Constitution of the United States.

To support this proposition he cites the case of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In proceedings in a court of the State of Maryland, Benton was indicted for burglary and larceny. Upon his trial, a jury found him not guilty of larceny but convicted him of burglary. Because, in the view of the Maryland Court of Appeals, both the grand and petit juries had been unconstitutionally selected, the case was remanded to the trial court. The defendant was reindicted and again placed on trial. Upon his second trial, again for both burglary and larceny, the defendant's motion to dismiss the larceny charge upon the ground that it exposed him to double jeopardy was denied by the trial court. Benton was then found guilty of both offenses and given sentences of 15 years on the burglary charge and 5 years for larceny. The Maryland Court of Special Appeals rejected Benton's claim of double jeopardy on the merits and the Maryland Court of Appeals denied discretionary review. The Supreme Court of the United States granted certiorari and reversed.

The decision is of considerable significance because it overruled Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937) and held that the double jeopardy clauses of the Fifth Amendment of the United States Constitution is applicable to the several states through the Fourteenth Amendment of that document. Benton's conviction of larceny was reversed upon the ground that, having been tried upon that charge and acquitted in the Maryland state court, he could not again be placed on trial by the state court for the same offense against the criminal laws of the State of Maryland.

The decision in Benton does not overrule or reach the question here presented. Many decisions of the United States Supreme Court sustain the proposition that trial or conviction or acquittal upon a charge of violating a state criminal law does not bar prosecution of the offender upon a charge of violating the criminal laws of the United States although the offense, in each case, is constituted by the same unlawful act or conduct or is based upon the same transaction. The reverse of this proposition has also been upheld in a number of cases.

In Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) the United States Supreme Court, in addressing itself to this question, held:

Constitutional challenge to successive state and federal prosecutions based upon the same transaction or conduct is not a new question before the Court though it has now been presented with conspicuous ability. The Fifth Amendment's proscription of double jeopardy has been invoked and rejected in over twenty cases of real or hypothetical successive state and federal prosecution cases before this Court. While United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314, was the first case in which we squarely held valid a federal prosecution arising out of the same facts which had been the basis of a state conviction, the validity of such a prosecution by the Federal Government has not been questioned by this Court since the opinion in Fox v. Ohio (U.S.) 5 How. 410, 12 L.Ed. 213, more than one hundred years ago.

In Fox v. State of Ohio argument was made to the Supreme Court that an Ohio conviction for uttering counterfeit money was invalid. This assertion of invalidity was based in large part upon the argument that since Congress had imposed federal sanctions for the counterfeiting of money, a failure to find that the Supremacy Clause precluded the States from punishing related conduct would expose an individual to double punishment. Mr. Justice Daniel, writing for the Court (with Mr. Justice McLean dissenting), recognized as true that there was a possibility of double punishment, but denied that from this flowed a finding of preemption, concluding instead that both the Federal and State Governments retained the power to impose criminal sanctions, the United States because of its interest in protecting the purity of its currency, the States because of their interest in protecting their citizens against fraud.

On the date of the decision by the United States Supreme Court of Bartkus v. Illinois, supra, it also decided Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). In Abbate, the defendants were convicted in an Illinois court of violating an Illinois statute making it a crime to conspire to injure or destroy the property of another. Thereafter the defendants were indicted in the United States District Court for the Southern District of Mississippi on charges, growing out of identical facts, of having conspired to destroy parts of a federally operated and controlled communications system. The United States Court of Appeals for the Fifth Circuit affirmed the conviction and on certiorari the United States Supreme...