Robinson v. Henderson

• Decision Date: 15 May 1967
• Docket Number: Civ. A. No. 4954.
• Citation: 268 F. Supp. 349
• Parties: Samuel Ed ROBINSON v. C. Murray HENDERSON, Warden, Tennessee Penitentiary, Nashville, Tennessee.
• Court: U.S. District Court — Eastern District of Tennessee

268 F. Supp. 349

Samuel Ed ROBINSON v. C. Murray HENDERSON, Warden, Tennessee Penitentiary, Nashville, Tennessee.

Civ. A. No. 4954.

United States District Court E. D. Tennessee, S. D.

May 15, 1967.

James D. Robinson, Chattanooga, Tenn., for petitioner.

David W. Mackin, Asst. Atty. Gen., Nashville, Tenn., for respondent.

OPINION

FRANK W. WILSON, District Judge.

This is a proceeding upon a petition for a writ of habeas corpus, testing the legality of petitioner's detention in the custody of respondent. The undisputed facts present only a narrow issue of law, to wit, whether petitioner's trial in the Criminal Court of Hamilton County, Tennessee, for offenses of assault with intent to commit first degree murder following his trial in the City Court of Chattanooga, Tennessee, for offenses of assault and battery, both trials arising out of the same occurrences, violated rights guaranteed to petitioner by the United States Constitution.

Petitioner was tried and convicted of three offenses of assault and battery in violation of an ordinance of the City of Chattanooga in the City Court of Chattanooga, and was fined $50.00 and assessed costs upon each offense. Thereafter, on September 26, 1962, a grand jury of Hamilton County returned three indictments, each charging petitioner with an offense of assault with intent to commit first degree murder. It is agreed by the parties herein that the occurrences giving rise to the three indictments were the same as those giving rise to the three city charges. Upon petitioner's plea of guilty to the indictments, he received two sentences of three to ten years and one sentence of three to five years, such sentences to run consecutively. Petitioner is presently in custody pursuant to one of these sentences. Upon July 12, 1966, petitioner filed a petition for a writ of habeas corpus in the Criminal Court for Davidson County, Tennessee, upon grounds of double jeopardy. The writ was denied. Petitioner appealed to the Tennessee Supreme Court, which affirmed the judgment below.

Petitioner's sole contention in the instant action is that he was twice placed in jeopardy for the same offenses and that the convictions and sentences resulting from the second trial are therefore invalid.

Petitioner is not entitled to the issuance of a writ of habeas corpus unless "he is in custody in violation of the Constitution or laws or treaties of the United States". 28 U.S.C. § 2241. The only provisions of federal law which appear to be involved here are the Double Jeopardy Clause of the Fifth Amendment, and the Due Process Clause of the Fourteenth Amendment, United States Constitution.

The Fifth Amendment provides in part that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb". It has been the traditional view that this prohibition applies exclusively to prosecutions under federal authority and is not a limitation on the powers of the several states. Brantley v. State of Georgia, (1910) 217 U.S. 284, 30 S.Ct. 514, 54 L.Ed. 768; Bartkus v. People of State of Illinois, (1959) 359 U.S. 121, 79 S.Ct. 676, 3 L. Ed.2d 684, reh. den. 360 U.S. 907, 79 S.Ct. 1283, 3 L.Ed.2d 1258; Brock v. State of North Carolina, (1953) 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456. Some doubt has been cast upon this principle in most recent years. In the case of Cichos v. Indiana, (1966) 385 U.S. 76, 87 S.Ct. 271, 17 L.Ed.2d 175, the Supreme Court granted certiorari upon the single question whether the Fifth Amendment's prohibition against placing an accused in double jeopardy is applicable to state court prosecutions under the Due Process Clause of the Fourteenth Amendment. The Court disposed of the case without reaching the question posed, and dismissed the writ as improvidently granted. Justice Black, concurring, reiterated his view that the double jeopardy provision of the Fifth Amendment is made applicable to the states by virtue of the Fourteenth Amendment. This view has received considerable support, as, for example, in Adamson v. People of State of California, (1946) 332 U.S. 46, 67 S. Ct. 1672, 91 L.Ed. 1903, wherein Justice Black's view that all of the specific provisions of the Bill of Rights are made applicable to the states through the Fourteenth Amendment was shared by Justices Douglas, Murphy and Rutledge. However, while the principle of stare decisis may have lost some of its significance in the present scheme of things, and while eight years may render a precedent in the field of criminal law subject to question, the Court is constrained to follow the view most recently expressed in Bartkus v. People of State of Illinois, supra, that the specific command against double jeopardy embodied in the Fifth Amendment is not operative upon the states.

Of course, this does not eliminate federal constitutional considerations from this case, for the Due Process Clause of the Fourteenth Amendment will prohibit "double jeopardy" at the hands of a state where successive prosecutions are fundamentally unfair. Hoag v. State of New Jersey, (1958) 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913, reh. den. 357 U.S. 933, 78 S.Ct. 1366, 2 L.Ed. 2d 1375. It is natural to members of bench and bar to regard the concept of successive prosecutions for the same offense with distaste and repugnance, and it is well for our treasured principles of individual liberty that it should be so. There are those who feel that almost all successive prosecutions for the same offense deny due process. See the dissenting opinions in Cichos, Hoag, and Bartkus, supra, for example. However, the prevailing view appears to be that stated in Palko v. State of Connecticut, (1937) 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, to the effect that, in the field of successive prosecutions, "fundamental unfairness" is established when it appears that an accused has been subjected to "a hardship so acute and shocking that our polity will not endure it". In the words of Justice Cardozo, writing for the Supreme Court in Palko, this Court must determine whether the successive prosecutions of the petitioner violated the "`fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.'"

The Supreme Court has in late years had occasion to examine a number of instances wherein a state has undertaken successive prosecutions, though none has involved the problem of state prosecution following municipal prosecution nor the reverse. In Palko, supra, the state successfully appealed defendant's conviction of second degree murder on grounds of errors of law, and upon the new trial, won a conviction of first degree murder and a death sentence. In Brock v. State of North Carolina, (1953) 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456, the prosecuting attorney obtained a mistrial after two prosecution witnesses refused to testify on grounds of self-incrimination. Upon the second trial, the defendant was convicted. In Hoag v. State of New Jersey, supra, defendant was indicted for robbery of three victims. The only witness to positively identify defendant as the perpetrator of the crime was another victim of the robbery not named in the indictment. After defendant's acquittal, he was indicted for robbery of the victim not named in the first indictment, and was convicted. In Ciucci v. State of Illinois, (1958) 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983, the defendant was charged, in four separate indictments, with the respective murders, on a single occasion, of his wife and three children. He was first tried for the murder of his wife, was convicted, and received a jail sentence. He was then tried for the murder of one child, was convicted, and received a jail sentence. He was then tried for the murder of a second child, was convicted, and finally received a death sentence. In each of the cases summarized briefly above, the Supreme Court held that such successive prosecutions did not violate the principles of fundamental fairness embodied in due process of law.

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