Green v. United States, No. 46

CourtUnited States Supreme Court
Writing for the CourtIt is true that in Kepner, a case arising in the Philippine Islands under a statutory prohibition against double jeopardy; On review by this Court; Fuller; Mr. Justice FRANKFURTER, whom Mr. Justice BURTON; This Court affirmed the judgment of the Supr
Citation78 S.Ct. 221,2 L.Ed.2d 199,61 A.L.R.2d 1119,355 U.S. 184
Decision Date16 December 1957
Docket NumberNo. 46
PartiesEverett D. GREEN, Petitioner, v. UNITED STATES of America. Re

355 U.S. 184
78 S.Ct. 221
2 L.Ed.2d 199
Everett D. GREEN, Petitioner,

v.

UNITED STATES of America.

No. 46.
Reargued Oct. 16, 1957.
Decided Dec. 16, 1957.

Messrs. George Blow and George Rublee II, Washington, D.C., for petitioner.

Page 185

Mr. Leonard B. Sand, Washington, D.C., for respondent.

Opinion of the Court by Mr. Justice BLACK announced by Mr. Justice DOUGLAS.

This case presents a serious question concerning the meaning and application of that provision of the Fifth Amendment to the Constitution which declares that no person shall

'* * * be subject for the same offence to be twice put in jeopardy of life or limb * * *.'

The petitioner, Everett Green, was indicted by a District of Columbia grand jury in two counts. The first charged that he had committed arson by maliciously setting fire to a house.1 The second accused him of causing the death of a woman by this alleged arson which if true amounted to murder in the first degree punishable by death.2 Green entered a plea of not guilty to both counts and the case was tried by a jury. After each side had presented its evidence the trial judge instructed the jury that it could find Green guilty of arson under the first count and of either (1) first degree murder or (2) second degree murder under the second count. The trial judge treated second degree murder, which is defined by the District Code as the killing of another with malice

Page 186

aforethought and is punishable by imprisonment for a term of years or for life,3 as an offense included within the language charging first degree murder in the second count of the indictment.

The jury found Green guilty of arson and of second degree murder but did not find him guilty on the charge of murder in the first degree. Its verdict was silent on that charge. The trial judge accepted the verdict, entered the proper judgments and dismissed the jury. Green was sentenced to one to three years' imprisonment for arson and five to twenty years' imprisonment for murder in the second degree. He appealed the conviction of second degree murder. The Court of Appeals reversed that conviction because it was not supported by evidence and remanded the case for a new trial. 95 U.S.App.D.C. 45, 218 F.2d 856.

On remand Green was tried again for first degree murder under the original indictment. At the outset of this second trial he raised the defense of former jeopardy but the court overruled his plea. This time a new jury found him guilty of first degree murder and he was given the mandatory death sentence. Again he appealed. Sitting en banc, the Court of Appeals rejected his defense of former jeopardy, relying on Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292, and affirmed the conviction. 98 U.S.App.D.C. 413, 236 F.2d 708. One judge concurred in the result, and three judges dissented expressing the view that Green had twice been placed in jeopardy in violation of the Constitution. We granted certiorari, 352 U.S. 915, 77 S.Ct. 217, 1 L.Ed.2d 122. Although Green raises a number of other contentions here

Page 187

we find it necessary to consider only his claim of former jeopardy.

The sonstitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. In his Commentaries, which greatly influenced the generation that adopted the Constitution, Blackstone recorded:

'* * * the plea of auterfoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.'4

Substantially the same view was taken by this Court in Ex parte Lange, 18 Wall. 163, at page 169, 21 L.Ed. 872:

'The common law not only prohibited a second punishment for the same offence, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted.'5

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is 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,

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as well as enhancing the possibility that even though innocent he may be found guilty.

In accordance with this philosophy it has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant's jeopardy, and even when 'not followed by any judgment, is a bar to a subsequent prosecution for the same offence.' United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300. Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous. United States v. Ball, supra; Peters v. Hobby, 349 U.S. 331, 344—345, 75 S.Ct. 790, 796, 99 L.Ed. 1129. Cf. Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114; United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445.

Moreover it is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge. This Court, as well as most others, has taken the position 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. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974; Kepner v. United States, 195 U.S. 100, 128, 24 S.Ct. 797, 804, 49 L.Ed. 114. In general see American Law Institute, Administration of The Criminal Law: Double Jeopardy 61—72 (1935). This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict. At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where 'unforeseeable circumstances * * * arise during (the first) trial making its completion impossible, such as the failure of a jury to agree on a verdict.' Wade v. Hunter, 336 U.S. 684, 688—689, 69 S.Ct. 834, 837, 93 L.Ed. 974.

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At common law a convicted person could not obtain a new trial by appeal except in certain narrow instances.6 As this harsh rule was discarded courts and legislatures provided that if a defendant obtained the reversal of a conviction by his own appeal he could be tried again for the same offense.7 Most courts regarded the new trial as a second jeopardy but justified this on the ground that the appellant had 'waived' his plea of former jeopardy by asking that the conviction be set aside.8 Other courts viewed the second trial as continuing the same jeopardy which had attached at the first trial by reasoning that jeopardy did not come to an end until the accused was acquitted or his conviction became final.9 But whatever the rationalization, this Court has also held that a defendant can be tried a second time for an offense when his prior conviction for that same offense had been set aside on appeal. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300.

In this case, however, we have a much different question. At Green's first trial the jury was authorized to find him guilty of either first degree murder (killing while

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perpetrating a felony) or, alternatively, of second degree murder (killing with malice aforethought).10 The jury found him guilty of second degree murder, but on his appeal that conviction was reversed and the case remanded for a new trial. At this new trial Green was tried again, not for second degree murder, but for first degree murder, even though the original jury had refused to find him guilty on that charge and it was in no way involved in his appeal.11 For the reasons stated hereafter, we conclude that this second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution.12

Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury's verdict as an implicit acquittal on the charge of first degree murder.13 But the result in this case need not rest alone

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on the assumption, which we believe legitimate, that the jury for one reason or another acquitted Green of murder in the first degree. For here, the jury was dismissed without returning any express verdict on that charge and without Green's consent. Yet it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seems clear, under established principles of former jeopardy, that Green's jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974. In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: 'We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.'

After the original trial, but prior to his appeal, it is indisputable that Green could not have been tried again for first degree murder for the death resulting from the fire. A plea of former jeopardy would have absolutely barred a new...

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2330 practice notes
  • Ahmad v. Wigen, No. 89-CV-715.
    • United States
    • U.S. District Court — Eastern District of New York
    • September 26, 1989
    ...were neither vindictive nor designed to harass the petitioner—two of the evils which double jeopardy prevents. Cf. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). They were intended to meet the problem of the government's lack of power to appeal the......
  • Fransaw v. Lynaugh, No. 85-2635
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 23, 1987
    ...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, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Naturally, no question of double jeopardy arises unless jeopardy has first attached sometime prio......
  • Grady v. Corbin, No. 89-474
    • United States
    • United States Supreme Court
    • May 29, 1990
    ...expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. . . ." Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Multiple prosecutions also give the State an opportunity to rehearse its presentation of proof, thus incr......
  • Welch v. Texas Department of Highways and Public Transportation, No. 85-1716
    • United States
    • United States Supreme Court
    • June 25, 1987
    ...an institution transcending the moment can alone be brought to bear on the difficult problems that confront us." Green v. United States, 355 U.S. 184, 215, 78 S.Ct. 221, 238, 2 L.Ed.2d 199 (1957) (Frankfurter, J., dissenting). Despite these time-honored principles, the dissenters—on the bas......
  • Request a trial to view additional results
2328 cases
  • Ahmad v. Wigen, No. 89-CV-715.
    • United States
    • U.S. District Court — Eastern District of New York
    • September 26, 1989
    ...were neither vindictive nor designed to harass the petitioner—two of the evils which double jeopardy prevents. Cf. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). They were intended to meet the problem of the government's lack of power to appeal the......
  • Fransaw v. Lynaugh, No. 85-2635
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 23, 1987
    ...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, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Naturally, no question of double jeopardy arises unless jeopardy has first attached sometime prio......
  • Grady v. Corbin, No. 89-474
    • United States
    • United States Supreme Court
    • May 29, 1990
    ...expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. . . ." Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Multiple prosecutions also give the State an opportunity to rehearse its presentation of proof, thus incr......
  • Welch v. Texas Department of Highways and Public Transportation, No. 85-1716
    • United States
    • United States Supreme Court
    • June 25, 1987
    ...an institution transcending the moment can alone be brought to bear on the difficult problems that confront us." Green v. United States, 355 U.S. 184, 215, 78 S.Ct. 221, 238, 2 L.Ed.2d 199 (1957) (Frankfurter, J., dissenting). Despite these time-honored principles, the dissenters—on the bas......
  • Request a trial to view additional results
2 books & journal articles
  • Supreme Court Behavior and Civil Rights
    • United States
    • Political Research Quarterly Nbr. 13-2, June 1960
    • June 1, 1960
    ...Yates v. U.S. (1), 355 U.S. 66 (1957); Yates v. U.S. (2), 356 U.S. 363 (1958); Brown v. U.S., 356 U.S. 148 (1958); Green v. U.S. (1), 355 U.S. 184 (1957); Green v. U.S. (2), 356U.S. 165 (1958); Rathbun v. U.S., 355 U.S. 107 (1957); Conley v. Gibson, 355 U.S. 41 (1957); Youngdahl v. Rainfair......
  • The Supreme Court of the United States, 1969-1970
    • United States
    • Political Research Quarterly Nbr. 23-4, December 1970
    • December 1, 1970
    ...the retrial be limited to that lesser offense.&dquo; (P. 327.) Basing the decision onthe rationale of Green v. United States ( 355 U.S. 184, 1957), the opinion held thatthe first jury’s verdict was an &dquo;implicit acquittal&dquo; of the murder charge and thatthe defendant’s jeopardy on th......

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