Duncan v. Tennessee 8212 5122

• Citation: 31 L.Ed.2d 86,92 S.Ct. 785,405 U.S. 127
• Decision Date: 23 February 1972
• Docket Number: No. 70,70
• Parties: Dennis Stephen DUNCAN, Petitioner, v. State of TENNESSEE. —5122
• Court: U.S. Supreme Court

405 U.S. 127

92 S.Ct. 785

31 L.Ed.2d 86

Dennis Stephen DUNCAN, Petitioner,

v State of TENNESSEE.

No. 70—5122.

Argued Jan. 13, 1972.

Decided Feb. 23, 1972.

Rodger N. Bowman, Clarksville, Tenn., for petitioner.

Everett H. Falk, Nashville, Tenn., for respondent.

PER CURIAM.

We granted certiorari in this case, 404 U.S. 821, 92 S.Ct. 121, 30 L.Ed.2d 49, to consider questions seemingly presented under the constitutional guarantee against double jeopardy. After briefing and oral argument, it now appears that those questions are so interrelated with rules of criminal pleading peculiar to the State of Tennessee, the constitutionality of which is not at issue, as not to warrant the exercise of the certiorari jurisdiction of this Court. See, e.g., Wilson v. State, 200 Tenn. 309, 292 S.W.2d 188 (1956); Young v. State, 185 Tenn. 596, 206 S.W.2d 805 (1947). See U.S.Sup.Ct. Rule 19(1)(a). The writ is, therefore, dismissed as having been improvidently granted.

Writ dismissed.

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.

In dismissing the writ of certiorari in this case, the Court lets stand a conviction secured in violation of petitioner's right under the Fifth and Fourteenth Amendments, not to be placed in jeopardy twice for a single criminal offense. The infringement of this fundamental right is so plain on the record before us that I am compelled to dissent.

Petitioner and a codefendant, Brooks, were brought to trial in the Criminal Court of Montgomery County, Tennessee, on an indictment charging armed robbery 'by the use of a deadly weapon, to-wit: A Gun to-wit: a pistol . . .'¹ The jury was selected and sworn, the indictment read, and a plea of not guilty entered on the defendants' behalf. The State's first witness, the officer investigating the robbery, testified that he had been looking for a '22 rifle' used in the commission of the crime. Defense counsel immediately objected to this evidence as immaterial to a charge of armed robbery with a pistol, and after some discussion out of the jury's presence, his objection was sustained. The prosecutor then informed the court that he had used the word 'pistol' in the indictment by mistake and that in view of the court's refusal to admit evidence of the rifle, the State could proceed no further with its case and would move for a directed verdict of acquittal on the ground of erroneous indictment. The trial court granted this motion over defendants' objection and instructed the jury 'to find, or to acquit the Defendants of the charge in view of that error in the indictment.'

About eight months later, in March 1969, the defendants were again brought to trial for the same armed robbery. The new indictment was identical to the old as to date, victim, and amount of money stolen and differed only in its description of the weapon as a '22 caliber rifle.' Nevertheless, defendants' plea of double jeopardy was overruled by the court, and they were convicted and sentenced to 10 years' imprisonment. The State Court of Criminal Appeals sustained defendants' double jeopardy claim on appeal, but the Supreme Court of Tennessee reversed. State v. Brooks, 224 Tenn. 712, 462, S.W.2d 491 (1970). It agreed that evidence of the rifle was properly excluded at the first trial, since under Tennessee's 'strict' variance rule "an allegation in an indictment which is not impertinent or foreign to the cause (such as specifying the weapon as a pistol) must be proved, though a prosecution for the same offense might be supported without such allegation' . . ..' 224 Tenn., at 717, 462 S.W.2d, at 494 (italics omitted), quoting Hite v. State, 17 Tenn. 357, 377 (1836) (theft of note payable at Mechanics' and Traders' Bank inadmissible on indictment specifying note payable at Merchants' and Traders' Bank). See also Wilson v. State, 200 Tenn. 309, 292 S.W.2d 188 (1956) (proof of theft of bronze rollers material variance from indictment charging theft of brass rollers). The court went on to hold, however, that since the variance between 'pistol' and 'rifle' was sufficient to render the initial indictment defective, it was likewise sufficient to distinguish the second indictment from the first for double jeopardy purposes. "To entitle a prisoner to the benefit of the plea of autrefois acquit, it is necessary that the crimes charged in the last bill of indictment be precisely the same with that charged in the first, and that the first bill of indictment is good in point of law. The true test by which the question whether such a plea is a sufficient bar may be tried is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal convic- tion upon the first." 224 Tenn., at 715, 462 S.W.2d, at 493, quoting Hite v. State, supra, 17 Tenn., at 375—376. Though recognizing the application of the Double Jeopardy Clause to the States, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the court concluded that the strict variance rule 'when consistently applied as a test for both variance and double jeopardy, will affect equally both the state and the defendant, and in our opinion not offend the Fourteenth Amendment.' 224 Tenn., at 719, 462 S.W.2d at 494. A petition for rehearing based on this Court's decision in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), was denied on the ground that Ashe 'has no application to the question whether there has been double jeopardy where the first indictment is void for variance.' 224 Tenn., at 720, 462 S.W.2d, at 495.

The guarantee against double jeopardy is "fundamental to the American scheme of justice," Benton v. Maryland, supra, 395 U.S., at 796, 89 S.Ct., at 2063. designed to ensure 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, as well as enhancing the possibility that even though innocent he may be found guilty.' Green v. United States, 355 U.S. 184, 187—188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Thus, we must view with a cautious eye any suggestion, as in the denial of rehearing below, that a particular trial, once commenced, might not result in the attachment of jeopardy under the Constitution. As the State conceded at oral argument, that suggestion is not sustainable here. Had petitioner's first trial gone no further than the impaneling of a jury, this in itself would have served to invoke the constitutional guarantee, for it is now settled 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.' Id., at 188, 78 S.Ct., at 224. There are exceptions to this rule, of course, as in the case of a hung jury, United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824), or military emergency requiring withdrawal of charges, Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949), but they do not apply here.

In any event, we need not rely on the calling of a jury to find an attachment of jeopardy, for it is clear that petitioner was not only tried for robbery in the initial proceeding, but was in fact acquitted at the direction of the court. His acquittal, being the final verdict in a court of competent jurisdiction, automatically precluded the State from retrying him for the same offense, even though, as the court below pointed out, the direction to acquit arose from a defect in the indictment. It has long been the rule of this Court that 'former jeopardy...