Per Curiam — Duncan v. Tennessee

Per Curiam

“DUNCAN, v. TENNESSEE

N CERTIORARI ‘To THE SUPREME COURT OF TENNESSEE

DUNCAN v. TENNESSEE 2

: No: 70-5122. Argued January 13, 1972—Decided February 23, 1772

5 224 Tenn. 712, 462 S. W. 24 491, certiorari dismissed as improvidently

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for petitioner. © A:

4 Everett H. Falk, Assistant a0 General.of ‘Ton

nessee, argued the cause for respondent. With him on

the brief was Robert E. Kendrick, eee, wanne ,

General. . ae

we praited certiorari in this case, 404 v. 8. 821, to

3 | consider questions seemingly presénted under the consti-

~ tutional guarantee against double jeopardy, After brief-

tions are so ‘interrelated with rules of criminal pleading

~ peculiar to the State of Tennessee, the constitutionality

of which is not at issue; as not to warrant the exercise of

the certiorari jurisdiction of this Court. See, e. 9. Wilson

v. Stats, 200 Tenn. 309, 292 S. W. 2d 188 (1956); Young -

v. State, 185 Tenn. 596, 206 S. W. 2d 805 (1947). See

U. S. Sup. Ct. Rule 19 (1) (a). The writ is, therefore,

. dismissed as having been improvidently” granted. ;

— MI Justice BRENNAN, swith, whom Mr. Justice Doue- 3

Is and Mr. Justice MARSHALL join; dissenting. -

In dismissing the writ of certiorari in this case, th

Court lets stand a conviction secured’ i in violation of

1 petitioner’s right, under the Fifth and Fourteenth

— not to be placed in jeopardy twice for

2 single * offense. The infringement of this

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$ Rodger N. Bowman argued te 5 fed « a brief e

: ing and oral argument, it now appears that those ques-

405 U.8.

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Brooks, 224 Tenn. 712, 462 8. W.

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OCTOBER TERM, 1971

Baenwan, J., dissenting. 44508 U. 8

tion upon the first. 224 Tenn., at 715, 462 8. W. 2d,

at 493, quoting Hite v. State, supra, at 375-376. Though

recognizing the application of the Double Jeopardy

Clause to the States, Benton v. Maryland, 305 U. 8. 784 ;

(1969), the court concluded that the strict variance rule

“when consistently applied as a test for both variance

and double jeopardy, will affect equally both the state

and the defendant, and in our opinion not offend the

Fourteenth Amendment.” 224 Tenn., at 719, 462 8. W.

24d, at 404. A petition for rehearing based on this Court’s

decision in Ashe v. Swenson, 397 U. S. 436 (1970), was

denied on the ground that Ashe “has no application to |

the question whether there has been double jeopardy

where the first indictment is void for yariance.” 224

Tenn., at 720, 462 S. W. 2d, at 495.

The guarantee against double jeopardy is ‘funda- .’

mental to the American schéme of justice, Benton

v. Maryland, supra, at 796, designed to ensure that

“the State with all its resources and power should

not be allowed to make repeated attempts to convict an

individual for an alleged offense, thereby subjecting him

to embarrassment, expense and ordeal and compelling

him to live in a continuing state of anxiety and insecurity,

as well as enhancing the possibility that even though

‘innocent. he may be found guilty.” Green v. United

States, 355.U. 8. 184, 187-188 (1957). Thus,, we must

view with a cautious eye any suggestion, as in the denial

of rehearing below, that à particular trial, once com-

menced, might not result in the attachment of jeopardy _

under the Constitution. As the State conceded at oral _

argument, that suggestion is not sustainable here. Had

petitioner’s first trial gone no further than the impanel-

ing of a jury, this in itself would have served to invoke.

the constitutional guarantee, for it is now settled that |

“a defendant is placed in jeopardy once he is put to trial

before a jury so that if the jury is discharged without his .

DUNCAN v. TENNESSEE 131 "2

127 Bauxxax, J., dissenting a

consent he cannot be tried again.” Id., at 188. There

are exceptions to this rule, of course, as in the case of

a hung jury, United States v. Peres, 9 Wheat. 579 (1824),

Wade v. Hunter, 336 U. S. 684 (1949), but they do not

apply here. : we?

In any event, we need not rely on the calling of 4

jury to find an attachment of je>pardy, for it is clear

‘that petitioner was not only tried for robbery in the

initial proceeding, but was in fact acquitted at the

direction of the court. His acquittal, being the final

verdict in a court of competent jurisdiction, automati-

cally" precluded the State from retrying him for the

same offense, even though, as the court below pointed

out, the direction to gequit arose from a defect in the

indictment. It has long been the rule of this Court

that “former jeopardy includes one who has been acquit-

ted by a verdict duly rendered, although no judgment

be entered on the verdict, and it was found upon a

defective indictment. The protection is not. . . against

, the peril of second punishment, but against being again

tried for the same offense.” Kepner v. United States,

195 U. S. 100,{130 (1904) (emphasis added), Ses also

United States v. Ball, 163 U. S. 662, 669-670 (1896) ;

Fong Foo v. United States, 360 U. 8. 141 (1962) (di.

132 | OCTOBER TERM, 1971

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Brennan, J., dissenting 405 U. 8.

Clause was designed to avoid. The State very properly

conceded at oral argument that petitioner “was placed

in jeopardy in the first trial.” Tr. of Oral Arg. 23.

The only question, then, is whether the petitioner

was tried twice for the same offense. Tennessee argues

that under its strict-variance rule the specification of

“pistol” in the first indictment charged an entirely dif-

ferent offense from the armed robbery with a “Tifle”

alleged in the second, since the “same evidence” could

not be used to prove both charges. Whatever relevance

this doctrine may have in determining a ‘variance be-

tween indictment and proof within a single trial, it

certainly does not comport with the double jeopardy

standards of the Fifth and Fourteenth Amendments.

In my view, “the Double Jeopardy Clause requires the

prosecution, except in most limited circumstanges „to

join at one trial all the charges against a defendant

that grow out of a single criminal act, occurrence, epi-

sode, or transaction.” Ashe v. Swenson, supra, at

453-454 (concurring opinion). This the State has

clearly failed to do. At petitioner’s first trial the

State was prepared to proceed on evidence that a riſſe

had been used in the robbery. The first witness testi-

. DUNCAN ». TENNESSEE 9°83

ge ¢ e

127 ‘Brennan, J., dissen ting

second prosecution based on this “single criminal act.“ |

The majority’s refusal to address these issues is in-

explicable. It may be that the prosecution in this

case did not have available to it a ready means, under

state law, of amending ‘the first indictment arid thus

had no choice but to end the trial and

If so, its remedy lies in changing Tennessee’s criminal

procedure, not in denying petitioner the constitutional

protection to which he is entitled. Petitioner was tried .

twice for the same offense, and his’conviction should be

reversed. United States v. Jorn, 400 U. 8. 470, 488

(1971) (Black and Brennan, JJ., concurring). I would fi

grant him that relief.

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* It is not entirely clear that the two indictments charged different

offenses even under state law. In State ex rel. Anderson v. Winsett,

217 Tenn. 564, 399 8. W. 2d 741 (1965), the Tennessee Supreme Court

a “Stated the following with regard to the state robbery statute, supra,

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8. W. 2d, at 743.

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that might be imposed.

the presence of aggravating circumstances.” Id., at 507

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