Illinois v. Somerville 8212 692

Decision Date27 February 1973
Docket NumberNo. 71,71
Citation35 L.Ed.2d 425,410 U.S. 458,93 S.Ct. 1066
PartiesState of ILLINOIS, Petitioner, v. Donald SOMERVILLE. —692
CourtU.S. Supreme Court

Respondent was brought to trial under an indictment which, it developed before any evidence was presented, contained a defect that under Illinois law could not be cured by amendment and that on appeal could be asserted to overturn any judgment of conviction. The trial judge declared a mistrial over respondent's objection, following which respondent was reindicted, tried, and convicted. He thereafter petitioned for habeas corpus, which was ultimately granted on the ground that, jeopardy having attached when the jury was initially impaneled and sworn, the second trial constituted double jeopardy. Held: Under the circumstances of this case, the trial judge's action in declaring a mistrial was a rational determination designed to implement a legitimate state policy, with no suggestion that the policy was manipulated to respondent's prejudice. The declaration of a mistrial was therefore required by 'manifest necessity' and the 'ends of public justice,' and the Double Jeopardy Clause of the Fifth Amendment as made applicable to the States by the Fourteenth did not bar respondent's retrial. Pp. 461—471.

447 F.2d 733, reversed.

Edward J. Gildea, Chicago, Ill., for petitioner.

Ronald P. Alwin, Chicago, Ill., for respondent.

Mr. Justice REHNQUIST delivered the opinion of the Court.

We must here decide whether declaration of a mistrial over the defendant's objection, because the trial court concluded that the indictment was insufficient to charge a crime, necessarily prevents a State from subsequently trying the defendant under a valid indictment. We hold that the mistrial met the 'manifest necessity' requirement of our cases, since the trial court could reasonably have concluded that the 'ends of public justice' would be defeated by having allowed the trial to continue. Therefore, the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), did not bar retrial under a valid indictment.


On March 19, 1964, respondent was indicted by an Illinois grand jury for the crime of theft. The case was called for trial and a jury impaneled and sworn on November 1, 1965. The following day, before any evidence had been presented, the prosecuting attorney realized that the indictment was fatally deficient under Illinois law because it did not allege that respondent intended to permanently deprive the owner of his property. Under the applicable Illinois criminal statute, such intent is a necessary element of the crime of theft,1 and failure to allege intent renders the indictment insufficient to charge a crime. But under the Illinois Constitution at that time,2 an indictment was the sole means by which a crimi- nal proceeding such as this may be commenced against a defendant. Illinois further provides that only formal defects, of which this was not one, may be cured by amendment. The combined operation of these rules of Illinois procedure and substantive law meant that the defect in the indictment was 'jurisdictional'; it could not be waived by the defendant's failure to object, and could be asserted on appeal or in a post-conviction proceeding to overturn a final judgment of conviction.

Faced with this situation, the Illinois trial court concluded that further proceedings under this defective indictment would be useless and granted the State's motion for a mistrial. On November 3, the grand jury handed down a second indictment alleging the requisite intent. Respondent was arraigned two weeks after the first trial was aborted, raised a claim of double jeopardy which was over-ruled, and the second trial commenced shortly thereafter. The jury returned a verdict of guilty, sentence was imposed, and the Illinois courts upheld the conviction. Respondent then sought federal habeas corpus, alleging that the conviction constituted double jeopardy contrary to the prohibition of the Fifth and Fourteenth Amendments. The Seventh Circuit affirmed the denial of habeas corpus prior to our decision in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). The respondent's petition for certiorari was granted, and the case remanded for reconsideration in light of Jorn and Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). On remand, the Seventh Circuit held that respondent's petition for habeas corpus should have been granted because, although he had not been tried and acquitted as in United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), and Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), jeopardy had attached when the jury was impaneled and sworn, and a declaration of mistrial over respondent's objection precluded a retrial under a valid indictment. 447 F.2d 733 (1971). For the reasons stated below, we reverse that judgment.


The fountainhead decision construing the Double Jeopardy Clause in the context of a declaration of a mistrial over a defendant's objection is United States v. Perez, 9 Wheat. 579 (1824). Mr. Justice Story, writing for a unanimous Court, set forth the standards for determining whether a retrial, following a declaration of a mistrial over a defendant's objection, constitutes double jeopardy within the meaning of the Fifth Amendment. In holding that the failure of the jury to agree on a verdict of either acquittal or conviction did not bar retrial of the defendant, Mr. Justice Story wrote:

'We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.' Id., at 580.

This formulation, consistently adhered to by this Court in subsequent decisions, abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated in decisions of this Court. In Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949), the Court, in reaffirming this flexible standard, wrote:

'We are asked to adopt the Cornero (v. United States, 48 F.2d 69) rule under which petitioner contends the absence of witnesses can never justify discontinuance of a trial. Such a rigid formula is inconsistent with the guilding principles of the Perez decision to which we adhere. Those principles command courts in considering whether a trial should be terminated without judgment to take 'all circumstances into account' and thereby forbid the mechanical application of an abstract formula. The value of the Perez principles thus lies in their capacity for informed application under widely different circumstances, without injury to defendants or to the public interest.' Id., at 691, 69 S.Ct., at 838.

Similarly, in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), the Court again underscored the breadth of a trial judge's discretion, and the reasons therefor, to declare a mistrial.

'Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment.' Id., at 368, 81 S.Ct., at 1526.

In reviewing the propriety of the trial judge's exercise of his discretion, this Court, following the counsel of Mr Justice Story, has scrutinized the action to determine whether, in the context of that particular trial, the declaration of a mistrial was dictated by 'manifest necessity' or the 'ends of public justice.' The interests of the public in seeing that a criminal prosecution proceed to verdict, either of acquittal or conviction, need not be forsaken by the formulation or application of rigid rules that necessarily preclude the vindication of that interest. This consideration, whether termed the 'ends of public justice,' United States v. Perez, supra, at 580 of 22 U.S. or, more precisely, 'the public's interest in fair trials designed to end in just judgments,' Wade v. Hunter, supra, at 689 of 336 U.S., at 837 of 69 S.Ct. has not been disregarded by this Court.

In United States v. Perez, supra, and Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892), this Court held that 'manifest necessity' justified the discharge of juries unable to reach verdicts, and, therefore, the Double Jeopardy Clause did not bar retrial. Cf. Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (1909); Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1902). In Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891), a trial judge dismissed the jury, over defendant's...

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