# Kepner v. United States > Supreme Court of the United States · May 31, 1904 · 195 U.S. 100 URL: https://www.frixlaw.com/law-library/cases/9417954 ## Case - **Full name:** Kepner v. United States - **Court:** Supreme Court of the United States - **Decided:** May 31, 1904 - **Citations:** 195 U.S. 100; 24 S. Ct. 797; 49 L. Ed. 114; 1904 U.S. LEXIS 820 - **Precedential status:** Published - **Opinion:** Dissent - **Judges:** Day, Brown, White, McKenna - **Cited by:** 469 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9417954 ## How later opinions describe it (automated extraction) - holding that double jeopardy clause of fifth amendment barred retrial of defendant after he had been acquitted and noting that vast majority of states adhered to that rule - holding that the Double Jeopardy Clause prevents appeals from an acquittal - explaining the Ball principle on the basis that "[t]he jeopardy is one continuing jeopardy from its beginning to the end of cause" ## Opinion text Mr. Justice holmes, with whom concurred Mr. Justice White and Mr. Justice McKenna, dissenting. I regret that I am unable to agree with the decision of the majority of the court. The case is of great importance, not only in its immediate bearing upon the administration- of justice in the Philippines, but, since the words used in the Act .of Congress are also in the Constitution, even more because the decision necessarily will carry with it an interpretation of the latter instrument. If, as is possible, the constitutional prohibition should be extended to misdemeanors, Ex parte Lange, 18 Wall. 163, 173 , we shall have fastened upon the country a doctrine covering the whole criminal law, which, it seems to me, will have serious and evil consequences. At the present time in this country there is more danger that criminals will escape justice than that they will be subjected to tyranny. But I do not stop to consider or to state the consequences m detail, as such considerations are not supposed to be entertained by judges, except as inclining. them to one of two interpretations, or as a, tacit last resort in case of doubt. It is more pertinent to observe that it seems to me that logically and rationally a man cannot be said to be more than once in jeopardy in the same cause, however often he may be tried. The jeopardy is one continuing jeopardy from its beginning to the end of the cause. Everybody agrees that the principle in its origin was a rule forbidding a trial in a new and independent case where a man already had been tried once. But there is no rule that a man may not be tried twice in the same case. It has been decided by this court that he may be tried a second time, even for his life, if the jury *135 disagree, United States v. Perez, 9 Wheat. 579 ; see Simmons v. United States, 142 U. S. 148 ; Logan v. United States, 144 U. S. 263 ; Thompson v. United States, 155 U. S. 271 , or notwithstanding/their agreement and verdict, if the verdict is set aside on thé. prisoner’s exceptions for error in the trial. Hopt v. People, 104 U. S. 631, 635 ; 110 U. S. 574 ; 114 U. S. 488, 492 ; 120 U. S. 430, 442 ; United States v. Ball, 163 U. S. 662, 672 . He even may be tried on a new indictment if the judgment on the first is arrested upon motion. Ex parte Lange, 18 Wall. 163, 174 ; 1 Bish. Crim. Law (5th ed.), § 998. I may refer' further to the opinions of Kent and Curtis in People v. Olcott, 2 Johns. Cas. 301 ; S. C., 2 Day, 507 , n.; United States v. Morris, 1 Curtis, 23, and to the well-reasoned decision in State v. Lee, 65 Connecticut, 265. If a statute should give the right to take exceptions to the Government, I believe it would be impossible to maintain that the prisoner would be protected by the Constitution from being tried again. He no more would be put in jeopardy a second time when retried .because of a mistake of law in his favor, than he would be when retried for a mistake that did him harm. It cannot matter that the prisoner procures the second trial. In a capital case, like Hopt v. People, a man cannot waive, and certainly will not be taken-to waive without meaning it, fundamental constitutional rights. Thompson v. Utah, 170 U. S. 343, 353, 354 . Usually no such waiver is expressed or thought of. Moreover, it . cannot be imagined that the law would deny to a prisoner the correction of a fatal error, unless he should waive other rights so important as to be saved by an express clause in the Constitution of the United States.- It might be said that when the prisoner takes exceptions, he only is trying to get rid of a jeopardy that already exists— that so far as the verdict is in his favor, as when he is found guilty of manslaughter upon an indictment for murder, according to some decisions he will keep it and can be retried only for the less offense, so that the jeopardy only- is con *136 tinued to the extent that it already has been determined against' him, and is continued with a chance of escape. I believe the decisions referred to to be wrong, but, assuming them to be right, we must consider his position at the moment when his exceptions are sustained. The first verdict has been set aside. The jeopardy created by that is at an end, and the question is what shall be done with the prisoner. Since at that moment he no longer is in jeopardy from the first verdict, if a second trial in the same case is a second jeopardy even as to the less offense, he has a right to go free. In view of- these difficulties it has been argued that on principle he has that right if a mistake of law is committed at the first trial. 1 Bish. Crim. Law (5th ed.), §§ 999, 1047. But even Mr. Bishop admits that the decisions are otherwise, and the point is settled in this court by the cases cited above. That fetish happily being destroyed, the necessary alternative is that the Constitution permits a second trial in the same case. The reason, however, is not the fiction that a man is not in jeopardy in case of a misdirection, for it must be admitted that he is in ■ jeopardy, even when the error is patent on the face of the record, as when he is tried on a defective indictment, if judg- ■ ment is not arrested. United States v. Ball, 163 U. S. 662 . Moreover, if the fiction were true, it would be equally true when the misdirection was in favor of the prisoner. The reason, I submit, is that there can be but one jeopardy in one case. I have seen no other, except the suggestion of waiver, and,that I think cannot stand. If what I have said so far is correct, no additional argument is necessary to show that a statute may authorize an appeal by the Government from the decision by a magistrate to a higher court, as well as an appeal by' the prisoner. • The latter is every day practice, yet there is no doubt that the prisoner ■is in jeopardy at the trial before the magistrate, and that a conviction or acquittal not appealed from would be a bar to a second prosecution. That is what was decided, and it is all that Was decided or intimated, relevant to this case, in Wemyss *137 v. Hopkins, L. R. 10 Q. B. 378. For the reasons which I have stated already, a second trial in the same case must be regarded as only a continuation of the jeopardy which began with the trial below. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9417954. Public record. Not legal advice.