State v. Barger

• Decision Date: 20 April 1966
• Docket Number: No. 46,46
• Citation: 220 A.2d 304,242 Md. 616
• Parties: STATE of Maryland v. Leslie BARGER.
• Court: Maryland Court of Appeals

Page 616

242 Md. 616

220 A.2d 304

STATE of Maryland v. Leslie BARGER.

No. 46 Court of Appeals of Maryland.

April 20, 1966.

Dissenting Opinion June 8, 1966.

John W. Sause, Jr., Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and Arthur A. Marshall, Jr., State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellant.

William H. Meserole, Jr., College Park (Joseph A. DePaul, Glenn B. Harten and Joseph C. Sauerwein, College Park, on the brief), for appellee.

Before PRESCOTT, C. J., and HORNEY, MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

HORNEY, Judge.

Leslie Barger was indicted for murder and at a trial before a jury was found guilty of murder in the second degree but was acquitted of murder in the first degree. The conviction was appealed and this Court, in Barger v. State, 235 Md. 556, 202 A.2d 344 (1964), reversed the judgment and remanded the case for a new trial because the trial court erred in denying an advisory instruction with regard to the right of the accused to assert the defense of self-defense.

When, following the remand, the State indicated that it intended to retry the accused as if he were being tried for the first time, he moved to dismiss the indictment on the ground that he would be prejudiced by being placed in jeopardy again under the indictment charging him with first degree murder of the victim after he had already been acquitted of that crime. The lower court, relying in part on the decisions of the federal courts, including the Supreme Court, and the dissenting opinion ¹ in Rowe v. State, 234 Md. 295, 310, 199 A.2d 785, 793 (1964), concluded that a question of double jeopardy had been raised and granted the motion to dismiss the indictment 'as to murder in the first degree.'

The question then on this appeal is whether the fact situation presents a case of double jeopardy against which protection should be granted. The accused contends that it does and the trial court agreed but the State contends that where the accused appeals a prior conviction the granting of a new trial nullifies the entire first trial and permits a retrial of the accused on the offenses of which he was found not guilty as well as those of which he was formerly acquitted.

The Principle of Double Jeopardy

That the 'state' could not twice put a man in jeopardy for the same offense after an acquittal at a regular trial on an adequate indictment was well established at common law. 2 Hawkins, Pleas of the Crown, 515 (8th ed.1824); 2 Hale, Pleas of the Crown, 240-50 (1st Am.ed. 1847). In 4 Blackstone's Commentaries, it is said at p. 335:

'(T)he plea of autrefoits acquit, ² 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 offense. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime.'

This basic common law principle was incorporated in the Fifth Amendment to the Constitution of the United States ³ and the constituions of most of the states, Maryland being one of the notable exceptions. However, even though there is no provision in the State Constitution prohibiting double jeopardy, protection against it is available in this state by way of the common law. See Ford v. State, 237 Md. 266, 269, 205 A.2d 809 (1965); Wampler v. Warden, 231 Md. 639. 645, 191 A.2d 594 (1963); Bennett v. State, 229 Md. 208, 212, 182 A.2d 815, 4 A.L.R.3d 862 (1962); Moquin v. State, 216 Md. 524, 528, 140 A.2d 914 (1958); Eggleston v. State, 209 Md. 504, 513, 121 A.2d 698 (1956); State v. Adams, 196 Md. 341, 344, 76 A.2d 575 (1950); Robb v. State, 190 Md. 641, 650, 60 A.2d 211 (1948).

In an early case-Hoffman v. State, 20 Md. 425 (1863), where a jury, after being sworn and charged to try the accused was dismissed because the witnesses did not appear, and, on the second trial, the accused was convicted and sentenced-our predecessors, in adopting the interpretation of the United States' Courts that the Fifth Amendment clause stating that no person shall be 'subject for the same offense to be twice put in jeopardy' (being a 'maxim imbedded in the very elements of the common law') meant nothing more than 'that where there had been a final verdict either of acquittal or conviction, on an adequate indictment, the defendant could not be a second time placed in jeopardy for the particular offense,' held that the accused, not having been twice put in jeopardy, was not entitled to be discharged. And in Gilpin v. State, 142 Md. 464, at p. 466, 121 A. 354, at p. 355 (1923), it was said:

'That no person shall for the same offense be twice put in jeopardy is both a provision of the Constitution of the United States (Amendment 5), and an established rule of the common law, and a plea of former jeopardy is good under either. The rule forbids a second trial for the same offense, whether the accused at the former trial was acquitted or convicted.'

It is also interesting to note at the outset that the Supreme Court of the United States, applying the Fifth Amendment in a District of Columbia case-Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)-to a factual situation similar to that in the case at bar reached a different result from that here advocated by the State. In the Green case, where the verdict of second degree murder was silent as to murder in the first degree and the defendant, on retiral under the original indictment, after the denial of a plea of second jeopardy, was convicted of first degree murder and sentenced to death, it was held that double jeopardy precluded the second prosecution.

While there is at present no question that the decision in Green does not control our decision in this case, there is some doubt as to whether or not the same result would be reached by the Supreme Court in a state case similar to Green through the application of the due process clause of the Fourteenth Amendment. ⁴

Prior to the adoption of the Fourteenth Amendment there was not the slightest doubt that the first eight amendments (often referred to as the 'Bill of Rights') applied to and limited the power of the federal government but were not applicable to the states. See Harris v. State, 194 Md. 288, 71 A.2d 36 (1950). Since the adoption of the Fourteenth Amendment, however, it has been held from time to time-more frequently in recent years than before -that under the due process clause of that amendment certain basic or fundamental rights, some of which are specifically contained in the Bill of Rights, are protected from violation by the states.

Trend of Federal Cases under Fourteenth Amendment

In Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 283 (1937), it was contended that the Fouteenth Amendment made all of the specific guarantees of the Bill of Rights applicable to the states, but the Supreme Court rejected that idea and stated instead that certain of the privileges and immunities of the Bill of Rights had been taken over and brought within the Fourteenth Amendment by a process of absorption, namely, those that protect the 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.' In Palko, the defendant was indicted and tried for first degree murder and the jury returned a verdict of murder in the second degree. The State, alleging a prejudicial error of law, appealed the conviction. On appeal the conviction was reversed and a new trial was ordered. At the second trial, the objection of the defendant that he was being placed in jeopardy twice for the same offense in violation of the Fourteenth Amendment was overruled and the jury returned a verdict of murder in the first degree. The Supreme Court, in affirming the second conviction, stated that the lack of protection afforded by the State of Connecticut against double jeopardy in such circumstances did not violate a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'

Ten years after Palko the Supreme Court was again confronted with the question of whether a defendant was entitled to constitutional protection from state action because he had been twice placed in jeopardy. In State of Louisiana ex rel. Francis v. Reswebar, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947), involving an unsuccessful execution and the desire to try again, four of the justices concluded that there was 'no double jeopardy here which can be said to amount to a denial of federal due process in the proposed execution.' Justice Frankfurther, concurring to form the majority, stated that 'the Due Process Clause * * * expresses a demand for civilized standards which are not defined by the specifically enumerated guarantees of the Bill of Rights (in that they) . . . neither contain the particularities of the first eight amendments nor are they confined to them' and concluded that the state action in that case did not offend a principle of justice rooted in the tradition and conscience of the people.

The question of double jeopardy was raised again in Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948), by a petitioner who was convicted of being a multiple offender and was sentenced to life imprisonment in a state court. Again, the Supreme Court instead of saying that constitutional protection could not be invoked against the states in some cases of double jeopardy, decided that double jeopardy was not involved. Five years later in Brock v. State of North Carolina, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456 (1953), where a motion for a mistrial was granted after witnesses for the state refused to testify, the Court answered the claim of the petitioner that his retrial amounted...