Wade v. Hunter, No. 427

CourtUnited States Supreme Court
Writing for the CourtBLACK
PartiesWADE v. HUNTER, Warden
Decision Date25 April 1949
Docket NumberNo. 427

336 U.S. 684
69 S.Ct. 834
93 L.Ed. 974
WADE

v.

HUNTER, Warden.

No. 427.
Argued March 7, 1949.
Decided April 25, 1949.
Rehearing Denied May 31, 1949.

See 337 U.S. 921, 69 S.Ct. 1152.

Page 685

Messrs. R. T. Brewster, of Kansas City, Mo., and N. E. Snyder, of Kansas City, Kan., for petitioner.

Mr. Oscar Davis, of Washington, D.C., for respondent.

Mr. Justice BLACK delivered the opinion of the Court.

The Fifth Amendment to the Constitution provides that a person shall not 'be twice put in jeopardy of life or limb' for the same offense. The petitioner, now in prison under a court-martial conviction for a serious offense, contends he is entitled to his freedom because another court-martial had previously put him in jeopardy for the same offense. The first court-martial was dissolved by the convening authority before the court reached a decision. The Government contends that the Fifth Amendment's double-jeopardy provision, if applicable to military courts, did not bar the second court-martial conviction here because, as the Government views the record, dissolution of the first court-martial was dictated by a pressing military tactical situation. The circumstances from which these contentions arise are as follows.

March 13, 1945, American troops of the 76th Infantry Division entered Krov, Germany. The next afternoon two German women were raped by two men in American uniforms. Several days later petitioner and another

Page 686

American soldier were arrested upon charges that they committed these offenses. Two weeks later, March 27, the troops had advanced about 22 miles farther into Germany to a place called Pfalzfeld. On that date at Pfalzfeld petitioner and the other soldier were put on trial before a general court-martial convened by order of the Commanding General of the 76th Infantry Division to which Division the two soldiers were attached.1 After hearing evidence and arguments of counsel, the court-martial closed to consider the case. Later that day the court-martial reopened and announced that the court would be continued until a later date to be fixed by the judge advocate. The reason for the continuance was the desire of the court-martial to hear other witnesses not then available before deciding the guilt or innocence of the accused.2

A week later the Commanding General of the 76th Division withdrew the charges from the court-martial directing it to take no further proceedings. The General then transmitted the charges to the Commanding General of the Third Army with recommendations for trial by a new court-martial. The reason for transferring the charges as explained in a communication to the Commanding General of the Third Army was:

'The case was previously referred for trial by general court-martial and trial was commenced. Two witnesses, the mother and father of the victim of

Page 687

the alleged rape, were unable to be present due to sickness, and the Court continued the case so that their testimony could be obtained. Due to the tactical situation the distance to the residence of such witnesses has become so great that the case cannot be compl ted within a reasonable time.'

The Commanding General of the Third Army concluded that the 'tactical situation' of his command and its 'considerable distance' from Krov made it impracticable for the Third Army to conduct the court-martial. Accordingly, he in turn transmitted the charges to the Fifteenth Army stating that this action was necessary to carry out the policy of the American Army in Europe to accelerate prompt trials 'in the immediate vicinity of the alleged offenses.' Pursuant to this transmittal, the Fifteenth Army Commanding General convened a court-martial at a point about forty miles from Krov. Petitioner, represented by counsel, filed a plea in bar alleging that he had been put in jeopardy by the first court-martial proceedings and could not be tried again. His plea was overruled, the case was tried, and a conviction followed. He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and life imprisonment, which imprisonment was later reduced to twenty years.3

After exhausting his right to military review, petitioner brought this habeas corpus proceeding in a federal district court. That court ordered his release, holding that his plea of former jeopardy should have been sustained. 72 F.Supp. 755. The Court of Appeals reversed, one judge dissenting. 10 Cir., 169 F.2d 973. We hold

Page 688

that under the circumstances shown, the Fifth Amendment's double-jeopardy provision did not bar petitioner's trial before the second court-martial.4

The interpretation and application of the Fifth Amendment's double-jeopardy provision have bene considered chiefly in civil rather than military court proceedings. Past cases have decided that a defendant, put to trial before a jury, may be subjected to the kind of 'jeopardy' that bars a second trial for the same offense even though his trial is discontinued without a verdict. See Kepner v. United States, 195 U.S. 100, 128, 24 S.Ct. 797, 804, 49 L.Ed. 114, 1 Ann.Cas. 655; cf. Palko v. Connecticut, 302 U.S. 319, 322—323, 58 S.Ct. 149, 150, 82 L.Ed. 288. The same may be true where a judge trying a case without a jury fails for some reason to enter a judgment. McCarthy v. Zerbst, 10 Cir., 85 F.2d 640, 642. The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the

Page 689

type of oppressive practices a which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of a jury might be biased against the Government of the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial.5 What has been said is enough to show that a defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments.

When justice requires that a particular trial be discontinued is a question that should be decided by persons conversant with factors relevant to the determination. The guiding rule of federal courts for determining when trials should be discontinued was outlined by this Court in United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165. In that case the trial judge without consent of the defendant or the Government discharged the jury because its members were unable to agree. The defendant claimed that he could not be tried again...

To continue reading

Request your trial
1197 practice notes
  • Fransaw v. Lynaugh, No. 85-2635
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 23, 1987
    ...United States, 420 U.S. 377, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265 (1975) (quoting this passage from Somerville ); see also Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949) ("The double-jeopardy provision ... does not mean that every time a defendant is put to trial before......
  • Tibbs v. Florida, No. 81-5114
    • United States
    • United States Supreme Court
    • June 7, 1982
    ...J., dissenting); Downum v. United States, 372 U.S. 734, 735-736, 83 S.Ct. 1033, 1033-1034, 10 L.Ed.2d 100 (1963); Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949); Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (1909); Dreyer v. Illinois, 187 U.S. 71, 84......
  • State v. Dunns
    • United States
    • New Jersey Superior Court – Appellate Division
    • July 7, 1993
    ...a defendant is entitled to have his trial proceed[629 A.2d 929] to its normal conclusion before that particular tribunal. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949); State v. Rechtschaffer, supra, 70 N.J. at 404, 360 A.2d 362; State v. Farmer, supra, 48 N......
  • U.S. v. Starling, No. 77-2706
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 21, 1978
    ...Lovato v. New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244 (1916); or because of a tactical necessity in wartime, Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 Although the Supreme Court consistently has eschewed attempts to develop any mechanical formula by which to gauge th......
  • Request a trial to view additional results
1196 cases
  • Fransaw v. Lynaugh, No. 85-2635
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 23, 1987
    ...United States, 420 U.S. 377, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265 (1975) (quoting this passage from Somerville ); see also Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949) ("The double-jeopardy provision ... does not mean that every time a defendant is put to trial before......
  • Tibbs v. Florida, No. 81-5114
    • United States
    • United States Supreme Court
    • June 7, 1982
    ...J., dissenting); Downum v. United States, 372 U.S. 734, 735-736, 83 S.Ct. 1033, 1033-1034, 10 L.Ed.2d 100 (1963); Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949); Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (1909); Dreyer v. Illinois, 187 U.S. 71, 84......
  • State v. Dunns
    • United States
    • New Jersey Superior Court – Appellate Division
    • July 7, 1993
    ...a defendant is entitled to have his trial proceed[629 A.2d 929] to its normal conclusion before that particular tribunal. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949); State v. Rechtschaffer, supra, 70 N.J. at 404, 360 A.2d 362; State v. Farmer, supra, 48 N......
  • U.S. v. Starling, No. 77-2706
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 21, 1978
    ...Lovato v. New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244 (1916); or because of a tactical necessity in wartime, Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 Although the Supreme Court consistently has eschewed attempts to develop any mechanical formula by which to gauge th......
  • Request a trial to view additional results
1 books & journal articles
  • The Supreme Court as Protector of Civil Rights: Criminal Justice
    • United States
    • ANNALS of the American Academy of Political and Social Science, The Nbr. 275-1, May 1951
    • May 1, 1951
    ...against ex post facto laws 6 and v. United States, 332 U. S. 575 (1947); Wade bills of attainder,7 and the guarantees v. Hunter, 336 U. S. 684 of the Bill of Rights. While the guar- Douglas, Rutledge, JJ., dissenting; UnitedStates antees of the Bill of Rights v. Williams, 1950 Term, No. 134......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT