# Jurisdictional Statement — Crist v. Bretz > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1720%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1978 - **Citation:** 437 U.S. 28 ## Text Supreme Court of the Auited States October Term, 1976 wo. 76 1200 AY ROGER CRIST, as Warden of the Montana State Peni- tentiary, Deer Lodge, Montana, and John Moe, as Sheriff of Missoula County, Montana, STATE OF MONTANA, Appellant, vs. MERREL CLINE and L. R. BRETZ, Appellees. 1 vr Appeal from the United States Court of Appeals for the Ninth Circuit — JURISDICTIONAL STATEMENT sy VU MIKE GREELY Attorney General of Montana ROBERT S. KELLER Special Assistant Attorney General State Capitol Helena, Montana 59601 Counsel for Appellant — ͤ — — . —B[t — ͤ—ͤ ͥ —¾C: q —gᷣͤ — COCKLE PRINTING CO., 1822 St. Mary's Ave., Omaha TABLE OF CONTENTS Pages Opinion Below 2 Jurisdiction 2 Questions Presented 4 Statement of the Case 5 The Questions Presented are Substantial . 7 Conclusion 11 Appendix A—Court of Appeals Opinion 1 13 Appendix B—District Court Opinion 42 Appendix C Notice of Appeal 4 Appendix D—Revised Codes of Montana 93-711 35 TABLE OF AUTHORITIES Apodaca v. Oregon, 406 U. S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972) 10 Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969) 7 Breed v. Jones, 44 L. Ed. 2d 346 (1975) 9 Bretz v. Sheriff, 539 P. 2d 1191 (1975) 5 Cunningham, et al. v. Montana, 406 F. Supp. 430 5 SS een a eee Downum v. U. S., 372 U. S. 734, 83 S. Ct. 1033. 10 L. Ed. 2d 100 Shale . 7,8 ii TABLE OF AUTHORITIES—Continued Pages Dutton v. Evans, 400 U. S. 74, 76 (1970) 0.8 Illinois v. Sommerville, 410 U. S. 184 (1973) 8,9 Johnson v. Louisiana, 406 U. S. 356, 92 S. Ct. 1620, rr =. 10 McCarthy v. Zerbst, 85 F. 2d 640, 642 (CA 10, 1936) 8 Serfass v. U. S., 420 U. S. 377, 43 L. Ed. 2d 265 (1975) . ee 7, 8 State v. Padilla, 483 P. 2d 549 (Ariz. 1971) 404 I — 3 9 United Gas Pipe Line Co. v. Ideal Cement Co., 369 U. S. 134 (1961) * — U. S. v. Jorn, 400 U. S. 470 (1970) 1 Wade v. Hunter, 336 U. S. 684, 688 (1949) 8 Watson v. Employers Liability Assur. Corp., 348 U. S. 66 (1954); 348 U. S. 921 (1954) 3 Williams v. Florida, 399 U. S. 78, 90 S. Ct. 1893, 28 L. Ed. 2d 446 (19770) 10 STATUTES INVOLVED Section 95-1711 (3) (d) R. C. M. 1970˖5ʒ5ʒ7 3, 4 II. 3 U.& Ce. Rules 13 (3), (üͤ—7T CONSTITUTION INVOLVED Fifth Amendment to the United States Constitu- — ta ate atecla ee ̃] ̃ KA. 0 ˙—1ßſ. ROGER CRIST, as Warden of the Montana State Peni- tentiary, Deer Lodge, Montana, and John Moe, as Sheriff of Missoula County, Montana, STATE OF MONTANA, Appellant, vs. MERREL CLINE and L. R. BRETZ, Appellees. * 1 Appeal from the United States Court of Appeals for the Ninth Circuit S*\ JURISDICTIONAL STATEMENT ra’ . * The Appellant, pursuant to United States Supreme Court Rules 13 (2) and 15, files this statement of the basis upon which it is contended that the Supreme Court of the United States has jurisdiction on a direct appeal to review the final judgment in question and should exercise such jur- isdietion in this case. ° 2 OPINIONS BELOW The United States Court of Appeals for the Ninth Cir- cuit on November 19, 1976 decided and filed its written opinion, which is not yet reported. A copy of the opinion is attached to this Jurisdictional Statement as Appendix A. The above opinion reversed and remanded the prior judgment of the District Court, the opinion of which is reported in 406 F. Supp. 430 (1975), and attached to this statement as Appendix B. JURISDICTION After conviction on a charge of Obtaining Money by False Pretenses, Bretz and Cline filed Petitions for Writs of Habeas Corpus in the United States District Court for the District of Montana, Billings Division. On December 31, 1975 the Honorable James F. Battin denied the peti- tions. Notices of Appeal to the Ninth Cireuit Court of Appeals were filed by Bretz and Cline in January 1976. That Court, on appeal, reversed the decision of the District Court. The appeal herein is from a final judgment decided and filed by the United States Court of Appeals for the Ninth Circuit on November 19, 1976, which held that a sec- ond prosecution brought against appellees herein violated the double jeopardy clause of the Fifth Amendment to the United States Constitution. The Court concluded that fed- eral law, not state statute, determined when jeopardy at- 3 taches and that therefore defendants-appellees had twice been placed in jeopardy despite the fact that under Mon- tana law, Section 95-1711 (3) (d), Revised Codes of Mon- tana, 1947, jeopardy did not attach in the initial prosecu- tion. The Supreme Court of the United States has jurisdic- tion to review by direct appeal the opinion complained of by the provisions of 28 USC See. 1254 (2). The following decisions sustain the jurisdiction of the Supreme Court to review the opinion on direct app al in this case. Dutton v. Evans, 400 U. S. 74, 76 (1970); United Gas Pipe Line Company v. Ideal Cement Company, 369 U. S. 134 (1961) ; Watson v. Employers Liability Assurance Corp., 348 U. S. 66 (1954), rehearing denied 348 U. S. 921 (1954). The paragraph of the statute of the State of Montana found to be in violation of the Fifth Amendment is: Section 95-1711 (3) (d), Revised Codes of Montana, 1947. “The former prosecution was improperly terminated. Except as provided in this subsection, there is an im- proper termination of a prosecution if the termina- tion is for reasons not amounting to an acquittal, and it takes place after the first witness is sworn but be- fore verdict. Termination under any of the follow- ing circumstances is not improper: (i) the defendant consents to the termination or waives his right to object to the termination; or (ii) the trial court, in the exercise of its disere- tion, finds that the termination is necessary because: (A) it is physically impossible to proceed with the trial in conformity with law; or (B) there is a legal defect in the proceedings which would make any judgment entered upon a ver- diet reversible as a matter of law; or (C) prejudicial conduct, in or outside the court- room, makes it impossible to proceed with the trial without manifest injustice to either the defendant or the state; or (D) the jury is unable to agree upon a verdict; or (E) false statements of a juror or voir dire pre- vent a fair trial.” The entire text of this statute is contained in Appendix D. Notice of Appeal was filed with the Ninth Cireuit Court of Appeals on December 13, 1976, a copy of which is contained in Appendix C. . * QUESTIONS PRESENTED 1. Can Montana determine by statute that jeopardy attaches in a trial when the first witness is sworn, or must it conform to the Federal Procedural Rules which establish the swearing of the jury as the point at which jeopardy attaches? 2. Or, is Section 95-1711 of the Revised Codes of Montana, 1947, constitutional in light of the double jeop- ardy provisions of the Fifth Amendment to the United States Constitution? 5 3. Assuming that this Court were to hold that jeop- ardy attaches in state proceedings when the jury is sworn, does the doctrine of manifest necessity” nevertheless re- quire that a trial be held? STATEMENT OF THE CASE The Information No. 3921 in this matter was filed on October 3, 1974, in Lewis and Clark County, State of Mon- tana, charging Bretz and Cline with the commission of nine felonies. On March 13, 1975, a jury was empanelled and sworn; no witnesses were sworn. The trial court then dismissed three counts for failure to state an offense, in that due to a typographical error, the date of commission read “1974” rather than ‘‘1973”’. (And, unfortunately, the Montana Criminal Code of 1973 took effect January 1, 1974, i. e., the charging statute was repealed on that date.) The state filed and the State District Court granted a mo- tion to dismiss the remaining counts on April 4, 1975, be- fore any witnesses were sworn; a second Information, No. 3963, alleging the commission of two felonies by Bretz and Cline was filed on the same day. Defendants’ motions to dismiss on the grounds of double jeopardy were filed on April 25, 1975, and the State District Court denied them on May 1, 1975. Bretz filed a Petition for Habeas Corpus with the Supreme Court of Montana alleging double jeop- ardy. This was denied by that Court on July 23, 1975. Bretz v. Sheriff, (1975) 539 P. 2d 1191. On September 2, 1975, the Supreme Court denied a rehearing. A trial com- 6 menced in the State District Court of the First Judicial District on June 16, 1975, and on July 2, 1975 Bretz and Cline were found guilty of Obtaiaing Money by False Pretenses—one of the same counts that had been dis- missed in the earlier proceeding by the trial court because of a typographical error. Bretz and Cline filed Petitions for Writs of Hal eas Corpus in the United States District Court for the District of Montana, Billings Division, and the matters were or- dered consolidated with that of a similar petition filed by Clancy Cunningham. On December 31, 1975, the Honorable James F. Battin denied the petitions. Cunningham, et al. v. Montana, 406 F. Supp. 430 (D. Mt., 1975). Notices of Appeal to the Ninth Circuit Court of Ap- peals were filed by Bretz and Cline on January 7 and 9, 1976 respectively. The matters were again consolidated. In their opinion filed November 19, 1976, the Court re- versed the lower court ruling that the state statute did not control when jeopardy attached in the first proceeding and that under federal law the defendants had twice been placed in jeopardy in violation of the Fifth Amendment. The Court went on to reverse the other part of the lower court’s decision which held that even if jeopardy had at- tached the doctrine of “manifest necessity” required that the trial be held. On December 13, 1976 the appellants herein duly filed their Notice of Appeal. 0 — 7 Appellants submit that the judgment below presents substantial questions warranting the acceptance of this action. The Ninth Cireuit Court of Appeals’ opinion rules that it is constitutionally impermissible for the separate states to establish rules governing when jeopardy attaches which vary in any degree past the time established in the Federal Rules of Criminal Procedure. The Montana stat- ute in question provides that jeopardy attaches when the first witness is sworn as opposed to the federal rule which uses the point at which the jury is sworn. Substantively speaking, the two rules are of little or no difference. This Court has not previously addressed the issue now presented. There is no question but that Fifth Amend- ment rights apply to the states as incorporated in the Fourteenth Amendment. Benton v. Maryland, (1969) 395 U. S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056. However, Ben- ton did not hold that all states, Montana included, must follow the identical procedures as those set forth for use in federal courts in order to protect Fifth Amendment sub- stantive rights in state courts. Likewise, later Supreme Court cases have not had occasion to address themselves to this issue. Serfass v. United States, (1975) 420 U. S. 377, 43 L. Ed. 2d 265 con- cerned a federal district court—there were no state pro- ceedings involved and the Court never addressed itself to the issue presently before this Court. Downum v. U. S., (1963) 372 U. S. 734, 10 L. Ed. 2d 100, 83 S. Ct. 1033 did involve a question of double jeopardy arising after a jury was empaneled and sworn and before the first witness was called. But Downum went to the question of “manifest necessity”, for every case arising in Federal Courts as- sumes without question, that the Federal rule applies, i. e., jeopardy “attaches” after the jury is empaneled and sworn. Since Downum was a case where a jury had been sworn, but no witness called, Downum is cited for the authority for the rule. But Downum did not question the rule. Serfass, supra, gets closer to the point, in an effort to determine if jeopardy had attached before a jury had been called, “As an aid to the decision of cases in which the pro- hibition of the Double Jeopardy Clause has been in- voked, the courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of ‘attachment of jeopardy’. See United States v. Jorn, supra, at 480. In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn. Downum v. United States, 372 U. S. 734 (1963); IM. nois v. Somerville, 410 U. S. 458 (1973). In a nonjury trial, jeopardy attaches when the court begins to hear evidence. McCarthy v. Zerbst, 85 F. 2d 640, 642 (CA 10 1936). See Wade v. Hunter, 336 U. S. 684, 688 (1949). The Court has consistently adhered to the view that jeopardy does not attach, and the constitu- tional prohibition can have no application, until a de- fendant is ‘put to trial before the trier of the facts, whether the trier be a jury or a judge’. United States v. Jorn, supra, at 479.”, at p. 388. Significantly, jeopardy attaches, in a non-jury case, after the first witness is sworn. In L. S. „. Jorn (1970), 400 C. S. 470, the Court held that jeopardy had already attached in a Federal District Court at a point in time after a witness had already testi- fied. Again there was no mention of anything relevant to the issue presently before this Court. In Breed v. Jones (1975), 44 L. Ed. 2d 346, the United States Supreme Court did not render any blanket holding to the effect that a state could not decide at what point jeopardy atiached. The Court addressed itself to the is- sue of whether a juvenile court adjudication constituted a ‘‘trial’’—thereby establishing double jeopardy due to a subsequent adult trial for the same offense. The Court addressed itself primarily to the unique nature of juvenile proceedings, and to the legal rights of juveniles, and con- cluded that such a proceeding was, in fact, like a trial— and jeopardy attached. Nowhere in the opinion does the court categorically assert that a state cannot determine at what point a trial commences. More interestingly, no- where does the Court even attempt to impose any federal procedural rule upon the California juvenile courts. The sole concern in Breed, as it is in the instant case, is not whether federal procedures were followed, but: were fed- erally-guaranteed rights violated. In Breed, a young man was, in fact, tried twice for the same offense and found culpable both times; in the instant case, Appellant was tried but one time. Illinois v. Somerville, (1973), 410 U. S. 184 con- cerned a state trial in circumstances where jeopardy had clearly attached under a state rule which was the same as the federal rule. In the case of State v. Padilla, 483 P. 2d 549 (Ariz. 1971), cert. den., 404 U. S. 1049 (1972), the exact issue involved here was directly addressed by the Arizona Su- preme Court. They ruled in accordance with Montana's 10 position on this appeal. However, at that time this Court denied certiorari and thus the question remains without Supreme Court resolution. With respect to other Amendments within the Bill of Rights, this Court has been careful to distinguish be- tween substantive rights and procedures. For instance, in Apodaca v. Oregon, 406 U. S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972) and Johnson v. Louisiana, 406 U. S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972), this Court ruled that it was constitutionally permissible for the states to require less than jury unanimity for a conviction notwith- standing the fact that federal procedure requires a unani- mous verdict. Similarily, this Court has ruled that a state can pro- vide for juries of less than twelve persons—again in con- travention of existing federal rules. Williams v. Florida, 399 U. S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970). A question to be resolved then is whether the Fifth Amendment application to the separate states requires them to adopt federal procedures and that it is not enough that the state procedure preserves the constitutional ob- jectives. From a practical standpoint a defendant receives no less protection under Montana’s statute, and similar statutes in other states, than he would under the Federal rule since the swearing of the jury and the swearing of the first witness occur at nearly the same time. It is submitted that the decision of the Ninth Circuit here being appealed represents an unprecedented and unnecessary restriction on the rights of the State of Mon- tana to adopt criminal procedures at variance with federal E 11 procedures as long as those procedures preserve the ap- plicable constitutional objectives. CONCLUSION It is submitted that the questions raised herein are of vital importance, not only to Montana, but to many of the separate states. The questions submitted are substantial and present to this court far reaching issues of the most vital public importance that must be answered. DATED: February 15, 1977. Respectfully submitted, Attorney General of the State of Montana By /s/ Rosert S. Keiier Special Assistant Attorney General State Capitol Helena, Montana 59601 Counsel for Appellant Counsel for Appellees: Charles F. Moses, Esq. Box 1913 Billings, Montana 59103 W. W. Leaphart, Esq. 1 Last Chance Gulch Helena, Montana 59601 13 APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 76-1572 L. R. BRETZ, Petitioner-Appellant, vs. ROGER CRIST, ete., et al., Respondent-Appellee. No. 76-1169 OPINION MERREL CLINE, | Petitioner-A»pellant, vs. THE STATE OF MONTANA, ete., et al., Respondent-Appellee. [November 18, 1976] On Appeal from the Federal District Court, District of Montana, Billings Division Before: CHAMBERS, Chief Judge, TUTTLE® and KILKENNY, Cireuit Judges. TUTTLE, Cireuit Judge: The tension between federalism and the doctrine of selective incorporation of Bill of Rights guarantees via the Fourteenth Amendment inevitably generates appeals such * Honorable Elbert P. Tuttle, Senior Judge, U.S. Court of Ap peals, Fifth Circuit, sitting by designation. 14 ‘ as this. Appellants contend that a second prosecution brought against them by the State of Montana violated the double jeopardy clause of the Fifth Amendment as applied to the states through the due process clause of the Four- teenth Amendment. In denying their petition for habeas corpus, following conviction at the second trial, the United States District Court for the District of Montana agreed with the state that state, not federal, law determines when jeopardy attaches and therefore under the controlling Mon- tana statute appellants had not been put in jeopardy by the first prosecution; and, in the alternative, that federal standards for re-prosecution following a declaration of mistrial had been met. Cunningham v. District Court, 406 F. Supp. 430, 432-434 (D. Mont. 1975) (consolidated case). I. A TALE OF TWO TRIALS The evidence at the trial would justify finding that ap- pellants Bretz and Cline concocted a fraudulent scheme to obtain workmen’s compensation payments as beneficiaries of one Wampole, deceased. The plan’s particulars were not illuminated on appeal, but it appears that appellants filed a claim with the Montana Workmen’s Compensation Division, alleging that Wampole was an employee of Cour- tesy Mobile Home Transporting, Inc.; that he suffered a fatal injury in the course of his employment; and that they were entitled to benefits on his behalf. Appellants pre- pared and submitted three different documents to the Workmen’s Compensation Division: a “Claim for Com- pensation ;’’ an “Employer’s First Report of Occupational Injury or Disease;” and a ‘‘Petition for Compromise Settlement.” Based on these documents, the Division paid a settlement of $5400 to the appellants. 15 A. The Charges. Claiming that Wampole had never been employed by Courtesy, and had not been fatally injured in the course of his alleged employment, the state filed a nine-count in- formation on October 3, 1974. The state leveled the fol- lowing charges against the appellants: (1) Count I contended that the entire scheme consti- tuted grand larceny in violation of Rev. Cope or Mon- TANA § 94-2701 (1) (1948), and specified that the offend- ing conduct occurred between January 13, 1973 and February 19, 1974. (2) Count II also applied to the entire scheme, and maintained that appellants committed the crime of ob- taining money and property by false pretenses in vio- lation of Rev. Cope or Montana § 94-1805 (1947). Due to a typographical error, however, the information spe- cified that the offending conduct occurred between January 13, 1974 and February 19, 1974. (3) Counts III through VIII fragmented' appellants’ conduct into three instances of preparing false evi- dence in violation of Rev. Cope or Montana § 94-1703 (1947) and three instances of offering false evidence in violation of Rev. Cope or Montana § 94-1701 (1947). Each of the three documents submitted by appellants to the Division anchored a pair of offenses. Thus, the “Claim for Compensation” was the basis for charges of preparing false evidence and offering false evidence 1 “There is probably some correlation between the slighting of {the interest of society in preventing the guilty from going un- punished] and the development of rules allowing a liberal splitting of offenses . . . when one slip may result in total immunity from prosecution . the temptation to multiply the number of bites at the apple may become irresistible.” Note, Double Jeopardy: The Reprosecution Problem, 77 Harv. L. Rev. 1272, 1274 (1964); see Johnson v. Commonwealth, 201 Ky. 314, 256 S. W. 338 (1923) (each of 75 hands of poker a separate offense). 16 between the dates of February 5, 1973 and February 13, 1973 (Counts III and IV); the “Employer’s First Report” was the basis for similar charges of criminal conduct during the period March 19, 1973 to March 22, 1973 (Counts V and VI); and the “Petition for Com- promise Settlement” was the basis for similar charges of criminal conduct during the period January 30, 1974 to February 1, 1974 (Counts VII and VIII). (4) Count IX returned to the entire scheme and al- leged that the appellants’ conduct amounted to present- ing false proofs upon a policy of insurance in violation of Rev. Cope or Montana § 942202 (1947), the of- fending activity supposedly having occurred between January 13, 1973 and February 19, 1974. B. The First Prosecution The following facts are conclusively established by the record. On March 10, 1975, counsel for the state and for appellants answered ready in the state trial court. On March 12, 1975, before voir dire had been completed, the trial court granted the state’s motion to dismiss Count IX of the information (presenting false proofs upon a policy of insurance). On March 13, 1975, a jury was impaneled and sworn. Before opening statements and before any evidence had been offered, the jury was excused as defense counsel presented several motions to the court. The most important of these motions sought to restrict the state’s evidence to the allegations of the information. This tacti- cal stroke was aimed at Count II (obtaining money and property by false pretenses): the information mistakenly charged that the conduct constituting this offense had oc- curred between January 13, 1974 and February 19, 1974, but the relevant statutory provision, Rev. Cope or Mon- 17 TANA § 94-1805 (1947), had been repealed effective January 1, 1974. The state resisted this attempt to excise Count II from its case, and on March 21, 1975, moved to amend Count II to correct the typographical error. On March 24, 1974, the trial court denied this motion and sua sponte dismissed Count II for failing to state an offense. After the Mon- tana Supreme Court declined to grant the state’s petition for a writ of supervisory control, the state returned to the trial court and moved to dismiss the remaining counts in order to “file a new and different information.” The trial court granted the motion for this “limited purpose” and discharged the jury on April 4, 1975. C. The Second Prosecution On the same day that the trial court dismissed the first information, the state filed a second, two-count information. Count I accused the appellants of grand larceny, and tracked the language of Count I of the original informa- tion. Count II charged them with obtaining money and property by false pretenses, and corrected the typographi- eal error that had flawed the original information. A new jury was impaneled, appellants’ motion to dismiss on grounds that the prosecution placed them twice in jeop- ardy was denied, and appellants were found guilty of ob- taining money and property by false pretenses. After ex- hausting available state postconviction remedies, appel- 18 lants sought and were denied habeas corpus relief by the district court. II. ATTACHMENT OF JECPARDY Before 1969, the Supreme Court employed different eriteria to test the constitutional permissibility of reprose- eutions by state and federal authorities. Even though double state trials, might run afoul of Fifth Amendment barriers to federal reprosecutions, the Fourteenth Amend- ment was thought to pose no constitutional obstacle to state retrials unless the proceedings exposed the accused to “that kind of double jeopardy [which creates] a hardship so acute and shocking that our polity will not endure itj’ Palko v. Connecticut, 302 U. S. 319, 328 (1937). In Ben- ton v. Maryland, 395 U. S. 784, 794 (1969), however, the Supreme Court eschewed Palko’s “approach to basie con- stitutional rights,” and found “that the double jeopardy prohibition of the Fifth Amendment represents a funda- mental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.” The question in Benton was whether an accused who successfully appeals a conviction may be re- prosecuted not only for the offense of which he was con- 19 vieted, e. g., North Carolina v. Pearce, 395 U. S. 711, 719-20 (1969) (no Fifth Amendment bar to state retrial on same charge when defendant appeals and wins reversal), but also for an offense of which he was acquitted at the first trial. Relying on federal precedents, the Benton court held that the acquittal could not be reopened, and based its derivative holding on the proposition that “[o]nce it is decided that a particular Bill of Rights guarantee is ‘fun- damental! to the American scheme of justice,“ . . the same constitutional standards apply against both the State and Federal Governments.” 395 U. S. at 795. A. A Question of Lawmaking Competence An arithmetical as well as constitutional precondition to being “subject for the same offense to be twice put in jeopardy of life or limb,” U. S. Cowsr. amend. v, is to be once put in jeopardy. Hence the theory of attachment of jeopardy, admittedly an attempt at reification, but never- theless serving to signify that point in the state’s efforts to secure a conviction when the interests protected by the double jeopardy clause are sufficiently implicated to war- rant barring a second prosecution absent special counter- vailing considerations. If the state rule—that jeopardy does not attach until “after the first witness is sworn,” Rev. Cope or Mowrtana, § 95-1711 (3) (d) (1947)—is con- trolling, then petitioners were never put in jeopardy by the first prosecution and their second trial a fortiori could not have contravened the constitutional command. See Alexander v. Fogliani, 375 F. 2d 733, 734 (9th Cir. 1967) (no double jeopardy violation where, because jury had not been impaneled, jeopardy could not have attached). But 20 if the federal rule—that jeopardy attaches when a jury is impaneled and sworn, e. g., Downum v. United States, 372 U. S. 734, 735-36 (1963)—is of constitutional dimension, then jeopardy attached at the first trial and unless the mis- trial declaration was consonant with the “manifest neces- sity” doetrine, see Part III imfra, the second trial was constitutionally impermissible. The threshold ques- tion is thus whether the federal attachment of jeopardy rule is a product of constitutional exegesis or simply a nonconstitutional consequence of the Supreme Court’s su- pervisory power over federal courts and federal officials. We reject at the outset the notion that while the double jeopardy clause constrains reprosecutions by the states, it countenaneces different constitutional applications in state and federal courts. To be sure, this double-barreled incor- poration doctrine can claim its supporters,“ but it has never commanded a majority of the Supreme Court. Each time the due process clause of the Fourteenth Amendment has been interpreted to encompass a particular guarantee of the Bill of Rights, the Court has explicitly reaffirmed the proposition that the same constitutional norms are to be employed in assessing the conduct of state and federal authorities. E. g., Ker v. California, 374 U. S. 23, 33 (1963) (“the standard of reasonableness is the same under the Fourth and Fourteenth Amendments”): Malloy v. Hogan, 378 L. S. 1. 11 (1964) (“the same standards must deter- 4 See, e. g., v. Massachusetts, 44 U.S. L W. 5173, 5177 (U.S. Jume 30, 1976) ( J. : v. New York, 399 U.S. 66, 7677 (1976) (Burger 21 mine whether an accused’s silence in either a federal or state proceeding is justified”); Pointer v. Texas, 389 U. S. 400, 406 (1965) (Sixth Amendment confrontation clause “is ‘to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment’’’) (citation omitted). Read in the context of these and other landmark incorporation decisions, Benton’s declaration that “the same constitutional [double jeopardy] standards apply against both the State and Federal governments,” Benton v. Maryland, 395 U. S. 784, 795 (1969), and its de- termination that “the validity of [state] conviction[s] must be judged . . . under this Court’s interpretation of the Fifth Amendment double jeopardy provision,” 395 U. S. at 796, compel the conclusion that if the federal attachment of jeopardy rule is constitutionally mandated in federal courts, no different rule may be followed by state courts. Neither the Court’s application of the exclusionary rule nor the jury trial cases embarrass the Supreme Court’s position that the coverage of selectively incorpo- rated provisions of the Bill of Rights must be coextensive in state and federal tribunals. It is true that although the Fourth Amendment’s prohibition of unreasonable searches and seizures was made applicable to the states in Wolf v. Colorado, 338 U. S. 25 (1949), the Supreme Court delayed full enforcement of the federal exclusionary rule, see Weeks v. United States, 232 U. S. 383 (1914), against the states for another twelve years. See Mapp v. Ohio, 367 U. S. 643 (1961); cf. Elkins v. United States, 364 U. 8. 206 (1960) (evidence illegally obtained by state officials may not be used in federal prosecutions). Recent Supreme 22 Court decisions, however, demonstrate that the exclusion- ary rule is a “judicially created remedy designed to safe- guard Fourth Amendment rights generally through its de- terrent effect, rather than a personal constitutional right of the party aggrieved,” United States v. Calandra, 414 U. S. 338, 348 (1974); accord, United States v. Peltier, 422 U. S. 531, 538-39 (1975). The Court’s holding in Stone v. Powell, 44 U.S. L. W. 5313 (U. S. July 6, 1976), that a state prisoner afforded an adequate opportunity to contest the admission of illegally seized evidence at his state trial is not entitled to federal habeas corpus consideration of such a claim, confirms that the exclusionary rule, while con- stitutionally inspired, is not constitutionally required. Thus the hiatus between Wolf and Mapp gives us no pause: because the exclusionary rule is not constitutionally re- quired—that is, it forms part of “a substructure of sub- stantive, procedural and remedial rules . . a constitutional common law subject to amendment, modification, or even reversal by Congress“ —its belated application to the states exposes no flaw in the Court’s selective incorporation doctrine. The state misreads Williams v. Florida, 399 C. S. 78 (1970), and Apodaca v. Oregon, 406 U. S. 404 (1972), as encouraging respect for state “procedural” rules that leave the “substance” of federal constitutional rights intact. Wil- hams held that a state need not provide a 12-person jury in order to comply with the jury trial requirements of the Sixth Amendment. In Apodaca, a plurality of four Jus- 5 The Supreme Court, 1974 Term—Foreword: Con- stitutional Law, 89 Harv. L. Rev. I. 23 (1975). 23 tices maintained that when a state dispenses with the unanimity requirement, it does not scuttle the Duncan-in- corporated jury trial guarantee. The crucial point, how- ever, is that the Williams majority and the Apodaca plurality treated the 12-person and unanimity require- ments, respectively, as non-constitutional rules in federal as well as state courts. That is, neither requirement was termed a sine qua non of the jury trial right protected by the Sixth Amendment in federal courts, and thus neither— under established incorporation doctrine—was found to be indispensable in state proceedings. B. Constitutional Status of the Attachment of Jeopardy Rule The attachment of jeopardy rule performs a crucial service in double jeopardy jurisprudence, but its office is confined to the mistrial context. When the question is whether an accused is threatened with double punishment,’ whether two trials focus on the “same offense,“ whether 6 Williams v. Florida, 399 U.S. 78, 79 (1970) („the 12-man re- cannot be regarded as an indispensable component of Sixth Amendment) Apodaca v. Oregon, 406 U. S. 404, 406 (1972) (unanimity requirement is not of constitutional stature’’). 7 See, e.g., Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874). 8 See, e.g., Abbate v. oe Ay Bb eral may prosecute con — 11 Illinois, 359 U.S. 121 (1959) (state may prosecute after acquittal in federal trial); Waller v. Florida, 397 U.S. 27 1970 may not prosecute individual for same offense for which he has been prosecuted in municipal court); Ashe v. Swen son, 397 U.S. 436 (1970) (collateral estoppel is requirement of Fifth Amendment double jeopardy clause). 24 government appeal amounts to second jeopardy,’ or wheth- er reprosecution after dismissal'® or defendant’s successful appeal! constitutes double jeopardy, attachment of jeop- ardy at some time during a former prosecution is not con- troverted. The issue in these types of cases is whether the particular additional punishment or procedure is a con- stitutionally prohibited second run through the gantlet. Many mistrial cases require a similar analysis, see Part ITI infra. On this appeal, however, we confront the question whether the first proceeding put appellants in jeopardy, for the state neither maintains that the second prosecution failed to put appellants in jeopardy nor suggests that the tantalizing but firmly rejected theory of “continuing jeop- ardy“ now be embraced to unite hoth proceedings as only one jeopardy. 9 See, e. g., Kepner v. United States, 195 U.S. 100, 129-30 (1904) (no government appeal from verdicts or judgments of acquittal, no matter how erroneous their foundation in law or fact). 10 See, e. g., United States v. Sisson, 399 U. S. 267, 288-90 (1970). 11 See, e. g., United States v. Ball, 163 U. S. 662. 672 (1896). 12 Mr. Justice Holmes first advanced the continuing jeopardy theory, see Kepner v. United States, 195 U.S. 100, 134-35, (Holmes, J., dissenting), to justify government appeal after acquittal, but 25 Before Downum v. United States, 372 U. S. 735 (1963), the Supreme Court had no oceasion to announce a rule gov- erning the attachment of jeopardy, all previous mistrial cases had held that the declaration of mistrial was proper and that therefore retrial did not give rise to a cognizable double jeopardy claim, see, e. g., note 27, infra. Leading Courts of Appeals cases did not observe an analytical dis- tinction between situations when jeopardy attaches during the first proceeding and those in which a subsequent pro- ceeding subjects the accused to a second jeopardy," but the Supreme Court in Downum clearly perceived the issue as whether the facts justified retrial after a mistrial “although the jury impaneled for the first trial was discharged with- out reaching a verdict and without the defendant’s con- sent.“ 372 U. S. at 736. Since the mistrial in Downum had been declared after the first jury was impaneled but before any evidence had been introduced, 372 U. S. at 741 (Clark, J., dissenting); Downum v. United States, 300 F. 2d 137, 139-40 (Sth Cir. 1962), the case necessarily stands for the proposition that jeopardy attaches when a jury is im- paneled. The Court explicitly adopted this reading of Downum in Illinois v. Somerville, 410 U. S. 458, 467-68 (1973), and Serfass v. United States, 420 U. S. 377, 388 13 Compare Cornero v. United States, 48 F. 2d 69 (9th Cir. 1931) (holding jeopardy attaches when jury is impaneled but finding ex- ceptions to this general rule as to what constitutes former jeop- ardy”) and Himmelfarb v. United States, 175 F. 2d 924, 932 K n. 2 (9th Cir. 1949), cert. denied, 338 U. S. 860 (1949) (ein numerous cir- cumstances either the jeopardy attaching when the jury was sworn didn’t count or didn't attach when the jury was sworn’), with — e 2d 137, 139-40 (5th Cir. 1962), rev'd, 372 (1963), (suggesting jeopardy might not attach if no evidence introduced but nevertheless requiring a sound rea- : | 26 (1975). Cf. United States v. Sisson, 399 U. S. 267, 302-03 (1970) (statutory construction: phrase “put in jeopardy” of Criminal Appeals Act “confines the Government's right to appeal . to situations in which a jury has not been impaneled”).'4 We hold that the attachment of jeopardy rule applied in Downum, Somerville and Serfass is a constitutional re- quirement of the Fifth Amendment which is binding on the states as well as the federal government. The rule itself serves as the lynchpin for all double jeopardy jurispru- dence. Serfass v. United States, 402 U. S. 377, 393 (1975) (“fundamental pri~ciple that an accused must suffer jeop- ardy before he can suffer double jeopardy”); Illinois v. Somerville, 418 U. S. 458, 467-68 (1973) (“the conclusion that jeopardy has attached begins . . the inquiry. . . . Only if jeopardy has attached is a court called upon to determine whether the declaration of a mistrial’? comports with the double jeopardy clause). Justice Harlan writing for the Court in United States v. Jorn, 400 C. S. 470 (1971), clearly indicated the constitutional stature of the rule: “the conclusion that ‘jeopardy attaches’ when the trial com- mences expresses a judgment that the constitutional poli- cies underpinning the Fifth Amendment’s guarantee are implicated at that point in the proceedings.” 400 U. S. at 480. The Chief Justice’s opinion in United States v. Ser- fass, 420 U. S. 377 (1975), buttresses our conclusion: “the 27 courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and poli- cies are implicated by resort to the concept of ‘attachment of jeopardy,“ 420 U. S. at 388 (emphasis supplied). The Supreme Court has consistently applied the fed- eral attachment of jeopardy rule to state cases. In Illinois v. Somerville, 410 U. S. 458 (1973), the Court unhesi- tatingly turned to the federal rule as the first step in a two-step analysis to determine (1) when jeopardy attached and (2) whether subsequent proceedings amounted to a second jeopardy. See 410 U. S. at 467-68. Montana points out that the federal and state attachment of jeopardy rules in Somerville were identical. See, e. g., People v. Somer- ville, 88 III. App. 2d 212, 232 N. E. 2d 115, 117 (III. App. 1967), but this erroneously equates a circumstance with a dispositive factor in a Supreme Court opinion. The Som- erville Court never mentions the state rule, and a thorough sifting of the opinion fails to discover even a shard of evidence suggesting that the Court did not consider fed- eral standards controlling. Breed v. Jones, 421 U. S. 519 (1975), resolves any doubt that federal standards determine when jeopardy at- taches. In Breed, a unanimous Court ruled that a juvenile may not be tried as an adult for violation of a criminal statute when the alleged violation has previously been the basis for a juvenile court’s adjudicatory determination of delinquency. The state contended that jeopardy had not attached during the juvenile court proceedings. 421 U. S. at 527. Despite a statute authorizing transfer and trial in the adult division after an adjudication of delinquency— a state rule that jeopardy did not attach in juvenile court 28 the Supreme Court applied federal standards in deciding whether and when jeopardy attached, 421 U. S. at 528-31." Montana correctly urges that Breed v. Jones did not “baldly assert that a state cannot determine at what point a trial commences,” and argues that no constitutional vio- lation oceurred here because under the Montana statute appellants were tried but one time.” Brief for Appellees at 7. But the circularity of the argument is palpable, and the reliance on Breed transmutes literal facts into constitu- tional finding. Montana neglects to point out that Breed also rejected—on federal constitutional grounds—the state law doctrine that the adult division trial merely “con- tinued“ the juvenile jeopardy. 421 U. S. at 532-35. If the constitutional protection against double trials as well as double punishments” is not to be circumvented, federal law must be authoritative in defining when the first trial begins as well as when it ends, i. e., when the accused is first put i i f 1 1285 i F Tb 171 HE: 3 3 : i - 5 an i i f | F : 1 i : ith Hi 15 Tie 4 5 gE 4 fl a 3 if 29 in jeopardy as well as when prior proceedings amount to former jeopardy. See Breed v. Jones, 421 U. S. 519, 534 (1975) (“the fact that the proceedings against respondent had not ‘run their full course,’ . . . within the contemplation of the California Welfare and Institutions Code .. . does not satisfactorily explain why respondent should be de- prived of the constitutional protection against a second trial”); Price v. Georgia, 398 U. S 323 (1969) (state may not employ continuing jeopardy theory to abrogate con- stitutional rule that acquittal ends first jeopardy). Illinois v. Somerville and Breed v. Jones leave little room for argument, although the cases do not contain un- equivocal language specifying federal rules of decision in attachment of jeopardy cases. Montana thus claims that a distinguishable state decision," as the sole case on point,“ recognizes state responsibility for defining the at- tachment of jeopardy. To the contrary, our researches re- veal that the three Courts of Appeals that have considered the question have held that the task of defining attachment of jeopardy is a federal constitutional task. In [United States ex rel. Somerville v. Illinois, 447 F. 2d 733, 735 (7th Cir. 1971), ed on other grounds, 410 U. S. 458 (1973), the 30 Seventh Circuit was presented with an argument identical to that made here, and ruled that federal, not state, law is controlling on the issue as to when jeopardy attaches.” Similarly, the Court of Appeals for the Third Circuit ap- plied the federal rule to a state law case in United States ex rel. Gibson v. Ziegele, 479 F. 2d 773, 776 (3d Cir. 1973), cert. denied, 414 U. S. 1008 (1973). Finally, in Smith v. Mississippi, 478 F. 2d 88, 93 (Sth Cir.) cert. denied, 414 U. S. 1113 (1973), the Fifth Cireuit analyzed the double jeopardy claim of a state prisoner as follows: „the [state’s] contention that petitioner was not ‘put to trial’ or was in no way prejudiced by the dis- missal of the proceedings before testimony was pre- sented has been decided adversely to it by the Supreme Court in Downum ... and Somerville... . In both cases the Supreme Court held that jeopardy attached when the first jury was selected and sworn. The mere in- troduction of evidence has no spontaneous effect on a defendant which can be said to automatically charge him with an appreciable degree of insecurity once he had made the preparations for trial and selected those of his peers who will determine his fate.’’ Montana debates the comparative efficacy of the fed- eral rule versus its own rule, relying on the belief of the Montana Supreme Court that there is “no substantial dif- ference between the two rules,“ State v. Cunningham, 535 P. 2d 186, 189 (Mont. 1975). One must, of course, con- cede that line drawing—an unavoidable incident of judi- cial decision—‘‘cannot be wholly satisfactory, for it re- quires attaching different consequences to events which, when they lie near the line, actually differ very little,’’ Duncan v. Louisiana, 391 U. S. 145, 161 (1968). But to make the very difficulty of constitutional decisionmaking 31 a reason to disregard authoritative Supreme Court prece- dent is not a proposition to be considered. See, e. 9., Bald- win v. New York, 399 U. S. 66, 73-74 (1970) (state may not employ its own felony/misdemeanor classification, rather than federal potential sentence rule, to trigger jury trial guarantee despite similar results of the rules.) Moreover, we question the accuracy of the Montana Supreme Court’s view that there is no inherent merit in the federal rule over Montana's state law,“ State b. Cun- ningham, 535 P. 2d 186, 188 (Mont. 1975). Cunningham incorreetly proceeds on the assumption that the attachment of jeopardy rule is designed to prevent prosecutorial ma- nipulation. 535 P. 2d at 188-89. But as the Montana Su- preme Court recognized, the trial court's correct applica- tion of mistrial doctrine, see Part Lil infra, is the only effective safeguard against prosecutorial overreaching. 535 P. Ad at 188-89. The attachment of jeopardy rule address- es different concerns: (1) protecting the accused froin the financial, physical and psychological enervation worked by repetitive prosecutions ;'’ and (2) preserving the accused's “valued right to have his trial completed by a particular tribunal, . independent of be threat of bad-faith con- 19 The classic quotation is from Mr. Justice Black's opinion for the Court in Green v. United States, 355 U.S. 184, 187-88 (1957): “The underlying idea, one that is deeply ingrained in at least the system of jurisprudence, is that the o> make apatites champm t consist on tnaettend ter an to con an an alleged offense, thereby subjecting him to embarrassment, ex- pense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possi- bility that even though innocent he may be found guilty.” 32 duct by judge or prosecutor.”’’ We decline to substitute a contradictory state rule for the Supreme Court’s judg- ment that these concerns reach constitutional critical mass when the jury is impaneled and sworn." And if prevent- ing miseonduct were the main purpose of the rule, a con- cern for prophylaxis would favor the federal formulation— it eannot be denied that the federal rule, which provides for earlier attachment, lessens the potential for misfeas- H : 1 i ae 1 — F 15 i 1 il tt: eB i . 7 : 41.08, at W (T. D. believe, failed > aus Gs Ge © he - a purpose protection 3 by a par- ticular tribunal,” (1949); accord, United States v. 4309. U.S. March 3, 1976); Illinois v. S. 458, (1973); United States v. Jorn, 400 U. 484-85 (1971): Downum v. United States, 372 U.S. 7%, . Wher one sees that the two attachment of jeopardy rules are necessary if this “valued right” is to be protected, the reason for the distinction seems plain. 33 lil RETRIAL AFTER MISTRIAL Preconstitutional courts in America and England of- fered protection against double jeopardy only to defend- ants who had been pursued to the point of a final judg- ment or verdict. Whether the framers envisioned the double jeopardy clause as affording a broader protection against reprosecution after prematurely terminated trials is not disclosed by available historical evidence.“ Thus it is not surprising that in United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824), Mr. Justice Story treated the first mistrial case to reach the Supreme Court as presenting questions of the general law of the United States rather than constitutional issues. Perez held that retrial was not barred when a court discharges a jury unable to agree on a verdict. In terms that later became the touchstone for constitutional analysis, Justice Story declared that the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration there is manifest necessity for the act, or the ends of pub- lic justice would otherwise be defeated,’ and found “the security which the public have for the faithful, sound and conscientious exercise of this diseretion,“ to rest upon the responsibility of the judges, under the oaths of office. 22 U. S. (9 Wheat.) at 580. A declaration of mistrial anticipates reprosecution, but as early as Simmons v. United States, 142 U. S. 148 (1891), 22 See United States v. Wilson, 420 U.S. 332, 342 (1975). Note, Double Jeopardy: The Represecution Problem, 77 Harv. L. Rev. 34 an erroneously declared mistrial was viewed as creating a potential double jeopardy problem. Simmons and Logan v. United States, 144 U. S. 263 (1892), attached constitu- tional significance to Perez’ delphic concepts f manifest necessity’’ and the ends of public justice, which are now firmly established as constitutional standards of re- view of mistrial cases, see, e. g., United States v. Dinitz, 44 U. S. L. W. 4309, 4311 (C. S. March 3, 1976); Illinois v. Somerville, 410 U. S. 458, 461 (1973). Since appellants were put in jeopardy at their first trial, see Part II supra, the remaining question on appeal is whether, under the Perez standards, the mistrial was declared in circumstances that permit reprosecution. A. The Legacy of Perez The rationale behind allowing retrial following mis- trial rulings that meet the Perez standards—for any re- trial exposes a defendant to double trials and also substi- tutes a new jury for that originally chosen—was outlined in Wade v. Hunter, 336 U. S. 684, 688-89 (1949) : The double jeopardy provision of the Fifth Amendment . does not mean that every time a de- fendant 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 insuper- able obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double jeopardy prohibition is aimed.’’ In administering the Perez test, the Court has been reluctant to resort to mechanical rules to resolve the con- flict between a defendant’s Fifth Amendment rights and 35 society’s interest in full enforcement of the criminal law. Nevertheless, ever since Justice Story cautioned that the power to declare a mistrial should be employed only ‘‘un- der urgent circumstances, and for very plain and obvious causes,” 22 U. S. (9 Wheat.) at 580, one uniform require- ment has been imposed on all mistrial cases. That re- quirement and the reason for it were explained in United States v. Jorn, 400 U. 8. 470, 485 (1971): „I [the] right to go to a particular tribunal is valued, it is because, independent of the threat of bad- faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial... . [The Perez doctrine of manifest ne- cessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous ex- ercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. Accord, United States v. Dinitz, 44 U.S. L. W. 4309, 4311- 12 (C. S. March 9, 1976); Illinois v. Somerville, 410 U. S. 458, 462-63 (1973). Applying this principle to the instant case, we hold that retrial on Count I (grand larceny) of the original informa- tion was prohibited by the double jeopardy clause. Unlike Count II (obtaining money and property by false pretens- es), Count I was sufficient to state an offense. Its dis- missal necessarily denied appellants the chance to take the grand larceny charge to the first jury and, perhaps, end the dispute then and there with an acquittal,” United States v. Jorn, 400 U. S. 470, 484 (1971). Yet no reason— 36 other than the state’s convenience in litigating the case as a unit—appears to have prompted the mistrial declaration. Certainly the ‘‘public’s interest in fair trials designed to end in just judgments, Wade v. Hunter, 336 U. S. 684, 689 (1949), could have been adequately served by com- pleting the trial on Count I. In these circumstances, the mistrial and retrial on Count I amounted to an archetypal double jeopardy violaticn. B. Mistrials and State Procedural Rules Count II (obtaining money and property by false pre- tenses) of the original information presents a different issue. The trial court dismissed Count II sua sponte after denying the state’s motion to amend the information in order to correct a typographical error. Unamended, Count II failed to state an offense, but unfortunately that circumstance is not dispositive in determining the consti- tutionality of retrial. It has long been clear, for example, that an acquittal on a defective indictment is nonetheless a bar to subsequent prosecution for the same offense.“ Furthermore, if the state could stulti’y its own trial proc- ess by claiming that a prosecution on a defective informa- 5 5 i it iv ie F i te | : 8 : 5 1 He Had 0 tl f 37 tion however concluded did not constitute former jeo- pardy, the Fifth Amendment’s protection against persecu- tion by prosecution would be undermined. The Count IT mistrial does not conveniently appear un- der the rubrics of the classic mistrial cases—hung jury, jur- or disqualification, tactical exigencies of a wartime court- martial, or prolonged illness or incapacity of judge, counsel or witnesses.** We are aware, of course, that the Supreme Court has protested the development of per se rules to govern mistrials, see, e. g., Wade v. Hunter, 336 U. S. 684, 691 (1949) (criticizing Ninth Cireuit rule that unavailabil- ity of healthy witness can never justify mistrial), as ineon- sistent with Perez’ emphasis on flexibility, see Illinois v. Somerville, 410 U. S. 458, 467 (1973). On the other hand, an inevitably ad hoc balancing test would threaten to trans- form Perez from an exception into an analytical formula- tion “whose escape hatch is larger than the compartment from which it offers egress.”** A more promising ap- proach, we think, is to compare the instant case with the Supreme Court’s decisions in Downum, Jorn and Somer- ville. As the first Supreme Court case to hold that the double jeopardy clause prevented reprosecution after a mistrial, 24 See, e.g., Logan v. United States, 144 U.S. 263 (1892) (hung jury); Thompson v. United States, 155 U.S. 271 (1894) (juror dis- qualified because member of grand jury); Simmons v. United States, 142 U.S. 148 (1891) (outside influence brought to bear on jury); Wade Hunter, 336 U. S. 684 (1949) (court-martial); United States v. Moon, 491 F. 2d 1047, 1048 (5th Cir. 1974) (illness of de- fense counsel); United States ex rel. Gibson v. Ziegele, 479 F. 2d 773 (3d Cir.), cert. denied, 414 U. S. 1008 (1973) (illness of key wit- ness occurring after trial had begun.) 25 Cf. Bickel, The Supreme Court, 1960 Term—Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 43 n. 17 (1961). . 38 Downum v. United States, 372 U. S. 734 (1963), looms rather large on the constitutional landscape. When the government’s key witness on two of six counts of passing checks stolen from the mail failed to appear the United States asked that the jury be discharged. The defendant countered by requesting that the two counts be dismissed for want of prosecution and that trial continue on the other four. There was no suggestion that the witness’ non- appearance was caused by anything other than the mar- shal’s inability to serve him with a subpoena. The prose- cution knew of this difficulty, but answered ready, appar- ently assuming that service had been made. The trial court granted the government’s motion. In holding that retrial on any of the six counts violated the double jeopardy clause, the Downum Court established two propositions. First, Downum’s disposition of the two affected counts means that the fact that the government’s unpreparedness is due to “excusable oversight,” 372 U. S. at 742 (Clark, J., dissenting), rather than a plan to capture unfair tacti- cal advantage, is not by itself sufficient to support a mis- trial declaration. Second, Downum’s disposition of the four other counts shows that the government may not frus- trate a defendant’s right to take the case to the jury by claiming possible adverse collateral estoppel effects if a multiple-count indictment is separated for trial. Downum is thus fully congruent with our own holding on Count I (grand larceny). Downum also tells us that Montana may not justify retrial on Count II (obtaining money and prop- erty by false pretenses) by claiming that the prosecutorial error was inadvertent or by asking for unitary adjudica- tion of both counts. United States v. Jorn, 400 U. S. 470 (1971), teaches an equally significant 'esson. In Jorn, the trial court in a 39 tax fraud case declared a mistrial to safeguard prosecu- tion witnesses’ privilege against self-incrimination. The Supreme Court concluded that the trial judge had been overassiduous in his attempt to protect witnesses who fully understood their rights, and held that retrial on all counts was prohibited. Jorn shows that a defendant’s trial posi- tion need not be impaired in order for retrial to be pro- hibited: the government was the only party whose proof might have been weakened by the trial court’s action. In the present case, Jorn means that deprivation of the ‘‘val- ued right” to take the case to the jury is enough in itself to bar retrial unless the mistrial declaration was actually necessary to protect other important interests. In Illinois v. Somerville, 410 U. S. 458 (1973), the trial court granted the state’s motion for a mistrial after it was discovered that the indictment failed to allege a necessary element of the offense charged. [Illinois law pre- vented amendment of the information. The Supreme Court held that where a state law “procedural defect might or would preelude the publie from either obtaining an im- partial verdict or keeping a verdict of conviction if its evi- dence persuaded the jury,” a mistrial is constitutionally available when “the mistrial [is], under [state] law, the only way in which a defect in the indictment could be cor- rected.” 410 U. S. at 468-69. Somerville’s explanation of its holding is not entirely satisfactory. The state rule was designed to “implement the State’s policy of preserving the [state-created] right of each defendant to insist that a criminal prosecution against him be commenced by action of the grand jury,” 410 U. S. at 468, and it was that policy which Somerville respected. It is hard to see, however, how a state’s inter- 40 est in protecting its citizens’ state procedural rights should be sufficient to deprive those same citizens of what other- wise would be a federal constitutional right not to be placed twice in jeopardy. Indeed, it would seem that the more Procrustean a state rule is, the more likely it will be— under Somerville—sufficient cause for subjecting defend- ants to two trials and two juries. Somerville’s anomalies need not detain us, however, for the facts of this case point to a result that is fully con- sistent with Downum, Jorn and Somerville. The appli- cable Montana statute, § 95-1505, Rev. Cope or Mont. 1947 (Smith ed. 1969), provides: “(a) A charge may be amended in matters of sub- stance at any time before the defendant pleads, without leave of court. (b) The court may permit any charge to be amended as to form at any time before verdict or finding if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. (e) No charge shall be dismissed because of a for- mal defect which does not tend to prejudice a substantial right of the defendant.”’ One can hardly imagine a more “formal” matter than the correction of a glaring typographical error, and surely no “rights of the defendant” would have been undercut by the requested alteration. No state policy of ensuring that all criminal charges are initiated by indictment by the grand jury is involved here, for an information can be filed at the diseretion of the prosecutor. Finally, although the stand- ard by which a trial judge’s action must be measured is ultimately federal, our researches indicate that Montana case law fully comports with our conclusion that the trial 41 court's failure to grant the motion to amend was an abuse of diseretion,“ and that the sua sponte declaration of mis- trial on Count II was made in circumstances that, under the Perez doctrine, do not permit retrial. REVERSED and REMANDED. 5 1 „e. g., State v. Terry, 250 P. 612 (Mont. 1926) (amendment Some E Selb ane Bias» Oto of extant 2. from April 10, 1925 to April 24, 1925 was proper); State v. Polich 226 P. 519, 51920 (Mont. 1924) (clerical error in an information which date read 19122“ instead of 1922 was matter of made korm under statute governing sufficiency of c ); State v. Beeskove, 85 P. 376, 377 (Mont. 1906) (while Kay ph must The current statute that controls amendment of criminal — § 95-1505, was enacted in 1967, see ch. 196, 1. Laws of Montana 1967, repealing < 94-6207, Rev. Code of Mont. 1947. Former versions of the statute also made use of the distinction between — 1 aay GHz. a change of substance is one which ele vates the charged offense from a misdemeanor to a felony, com- pare Gransberry v. State, 423 P. 2d 853 (Mont. 1967), and State v. , 254 P. 872 (Mont. 1927), with State v. Tritz, 522 P. 2d 603 1974), and State v. Knight, 387 P.2d 22 (Mont. 1963), or i contemplation of the same evidence rule,” is alleged, . Tropf, 530 P. 2d 1158 (Mont. 1975) (trial court correctly permit amendment — 5 offense from possession to here the amendment changes ary" 22 1 — the state ni “burg ” (leavi question of degree to the jury), it is a change of form — 7 A 1053 (Mont. 1973) (construing v. Lu Sing, 85 P. 521, 522-23 (1906) (correc- misspelling is matter of form“ that does not render indict- 1 1 ae S : ; 111 i 11 A f i ; 5 5 i d 42 Clancy CUNNINGHAM, Petitioner, vs. The DISTRICT COURT OF the THIRTEENTH JUDI- CIAL DISTRICT OF the STATE OF MONTANA et al., Respondents. L. R. BRETZ, Petitioner, vs. Roger CRIST, as Warden of the Montana State Peniten- tiary, Deer Lodge, Montana, and John Moe, as Sheriff of Missoula County, Montana, Respondents. Merrel CLINE, Relator, vs. The STATE OF MONTANA and Roger Crist, Warden, Montana State Penitentiary, Respondents. Nos. CV-75-112-BLG—CV-75-114-BLG. United States District Court, D. Montana, Billings, Division. Dee. 31, 1975. Petitions on behalf of three petitioners were filed for writs of habeas corpus. The cases were consolidated. The District Court, Battin, J., aeld that Montana statute which provides that jeopardy attaches in a criminal trial after the first witness is sworn does not violate double jeopardy provisions of Fifth Amendment to United States Constitu- tion or the Montana Constitution; and that even assuming that jeopardy attaches in state proceed- 43 ings when jury is sworn, doctrine of manifest necessity required that further trial be held as to defend- ants, despite error as to one count in information as to date which led to dismissal and refiling of information, since the flaw pertaining to the date was nothing more than a typographical defect which should not bar the continua- tion and completion of the trial. Petitions denied. 1. Constitutional Law—260 Double jeopardy provision contained in Fifth Amendment to United States Constitution applies to the states. U.S.C. A. Const. Amend 5. 2. Constitutional Law—267 Due process clause of Fourteenth Amendment im- poses the Sixth Amendment trial by jury upon the states. U. S. C. A. Const. Amends. 6, 14. 3. Criminal Law—146 Montana statute which provides that jeopardy at- taches in a criminal trial after the first witness is sworn does not violate double jeopardy provisions of Fifth Amendment to United States Constitution nor the Mon- tana Constitution. U.S.C. A. Const. Amend. 5; R. C. M. 1947, § 95-1711; Const. Mont. 1972, art. 2, § 25. 4. Criminal Law—170 Even assuming that jeopardy attaches in state proceedings when jury is sworn, doctrine of manifest neces- sity required that further trial be held as to defendants, 4H despite error as to one count in information as to date which led to dismissal and refiling of information, since the flaw pertaining to the date was nothing more than a typographical defect which should not bar the continuation and completion of the trial. U.S.C.A. Const. Amend. 5; R. C. M. 1947, § 95-1711; Const. Mont. 1972, art. 2, $ 25. Moses, Kampfe, Tolliver & Wright, Billings, Mont., for Claney Cunningham. Charles F. Moses, Moses, Kampfe, Tolliver & Wright, Billings, Mont., for L. R. Bretz. W. William Leaphart, The Leaphart Law Firm, Helena, Mont., for relator Merrel Cline. Richard Dzivi, Special Pros., Robert L. Woodahl, Atty. Gen. for the State of Montana, Helena, Mont., for respondents. MEMORANDUM AND ORDER BATTIN, District Judge. The above-named petitioners have individually sub- mitted petitions for writs of habeas corpus. Due to the similarity of issues, the cases were consolidated. BACKGROUND FACTS. Petitioner Cunningham Petitioner was charged in Information No. 9017, filed on August 24, 1973, in Yellowstone County, with first de- gree assault. On March 21, 1974, a jury was impaneled 45 and sworn, and the omnibus instruction was read. Prior to the swearing of any witness, the State was granted a motion to dismiss due to the unavailability of the key wit- ness. A second Information alleging third degree assault was filed on May 20, 1974. On August 16, 1974, the Yellow- stone County District Court granted petitioner’s motion to quash the Information because of double jeopardy. On May 2, 1975, the Supreme Court of Montana reversed the District Court’s order, holding that further prosecution was not barred by double jeopardy provisions of the United States and Montana Constitutions. State of Montana v. Cunningham, Mont., 535 P. 2d 186 (1975). The Supreme Court denied petitioner’s petition for rehearing on May 20, 1975. The matter was set for trial on November 11, 1975. Petitioners Bretz and Cline Information No. 3921 was filed on October 3, 1974, in Lewis and Clark County, charging petitioners with the com- mission of nine felonies. On Mareh 13, 1975, a jury was impaneled and sworn, but no witnesses were sworn. The trial court then granted a motion by petitioners to dismiss one count. The State filed and the District Court granted a motion to dismiss the remaining counts on April 4, 1975, before any witnesses were sworn; a second Information, No. 3963, alleging the commission of two felonies by peti- tioners, was filed on the same day. Petitioners’ motion to dismiss on the grounds of double jeopardy was filed on April 25, 1975, and the District Court denied it on May 1, 1975. Petitioner Bretz filed a petition for habeas corpus with the Supreme Court of Montana, alleging double jeop- ardy. This was denied by that court on July 23, 1975. Bretz v. Sheriff, Mont., 539 P. 2d 1191 (1975). On Sep- tember 2, 1975, the Supreme Court denied a rehearing. A trial commenced in the District Court of the First Judicial District on June 16, 1975, and on July 2, 1975 petitioners were found guilty of obtaining money by false pretenses— the same count that had been dismissed as the result of petitioners’ motion. ISSUES. 1. Is Section 95-1711 of the Revised Codes of Mon- tana, 1947, constitutional in light of the double jeopardy provisions of the Fifth Amendment to the United States Constitution and the Montana Constitution? 2. Assuming that the United States Supreme Court were to hold that jeopardy attaches in state proceedings when the jury is sworn, does the doctrine of “manifest necessity” require that a further trial be held as to peti- tioners Bretz and Cline? DISCUSSION. A. Application of Fifth Amendment to the States. [1] There is no doubt that the double jeopardy pro- hibition contained in the Fifth Amendment to the United States Constitution applies to the States. Benton v. Mary- land, 395 U. S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The Court in Benton stated: “In 1937, this Court decided the landmark case of Palko v. Connecticut, 302 U. S. 319, 58 8. Ct. 149, 82 L. Ed. 288. Palko, although indicted for first-degree murder, had been convicted of murder in the second degree after a jury trial in a Contecticut state court. 47 State appealed and won a new trial. Palko ar- that the Fourteenth Amendment incorporated, as the States, the Fifth Amendment requirement person ‘be subject for the same offense to be twice put in jeopardy of life or limb.’ The Court dis- agreed. Federal double jeopardy standards were not applicable against the States. Only when a kind of jeopardy subjected a defendant to ‘a hardship so acute and shocking that our polity will not endure it,’ id. at 328, 58 S. Ct. [149], at 153, did the Fourteenth Amend- ment apply. The order for a new trial was affirmed. In subsequent appeals from state courts, the Court continued to apply this lesser Palko standard. See, e. g., Brock v. North Carolina, 344 U. S. 424, 73 S. Ct. 349, 97 L. Ed. 456 (1953). Recently, however, this Court has ‘increasingly looked to the specific guarantees of the [Bill of Rights] to determine whether a state criminal trial was con- ducted with due process of law.’ Washington v. Texas, 388 U. S. 14, 18, 87 S. Ct. 1920, 1922, 18 L. Ed. 2d 1019 (1967). In an increasing number of cases, the Court ‘has rejected the notion that the Fourteenth Amendment applies to the States only a watered- down, subjective version of the individual guarantees of the Bill of Rights. Malloy v. Hogan, 378 U. S. 1, 10-11, 84 S. Ct. 1489, 1495, 12 L. Ed. 2d 653 (1964) Only last Term we found that the right to trial by jury in criminal cases was ‘fundamental to the American scheme of justice,’ Duncan v. Louisiana, 391 U. S. 145, 149, 88 S. Ct. 1444, 1447, 20 L. Ed. 2d 491 (1968), and held that the Sixth Amendment right to a jury trial was applicable to the States through the Fourteenth Amendment. For the same reasons, we today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental! idea! in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment. In- sofar as it is inconsistent with this holding, Palko v. Connecticut is overruled.’”’ (Footnotes omitted.) Ben- ton, supra, at 793-794, 89 S. Ct. at 2062. il But the Court has been careful to distinguish between substantive rights and procedures. A review of the Court’s actions concerning the right to trial by jury clearly estab- lishes that the Court has determined that as long as the substance of the right is maintained, then the procedure by which the result is reached is wholly within the discre- tion of the State. See 47 Am. Jur. 2d 640, 641. [2] As held in Duncan, supra, the due process clause of the Fourteenth Amendment imposes the Sixth Amend- ment trial by jury right upon the States. Rule 23(b) of the Federal Rules of Criminal Procedure, established to protect these rights, requires that a jury shall consist of twelve persons and that a verdict shall be unanimous. De- spite this federal rule, several States have differing pro- visions. Oregon and Louisiana, for example, have determine that notwithstanding the federal requirement of unanimity, a conviction could be attained on a less than unanimous jury vote. The Supreme Court has held that the States have the right and power to set such procedures and that the federal rule was strictly for use in federal trials. Apodaca v. Oregon, 406 U. S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972); Johnson v. Louisiana, 406 U. S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972). Similarly, the Supreme Court has determined that a State can provide for a jury trial of less than twelve per- sons—again notwithstanding federal rules to the contrary. Williams v. Florida, 399 U. S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970). Clearly, the Supreme Court has not mandated that States accept the federal procedure as long as the State 49 procedure preserves the constitutional objective. Mon- tana’s procedural rule does not present a ‘‘ watered-down version’’ of the constitutional right. The defendants’ sub- stantive rights receive no less protection under the Mon- tana statute than under federal procedures, for, practically speaking, the swearing of the jury and the swearing of the first witness occur nearly at the same point in time. Since the substance of the right has been clearly preserved, then the object of the constitutional provision guaranteeing that the defendant shall not be placed in jeopardy twice has been met. As the Montana Supreme Court stated in Cunningham, supra, 535 P. 2d at 189: We find no substantial difference between the two rules. Montana policy as enunciated by its leg- islature is that the trial does not start until the first witness is sworn. Sound policy reasons exist for this rule, principally that the jury as the trier of the facts has nothing to consider until the first witness is called and sworn. This appears entirely consistent with the constitutional standard that jeopardy does not attach until the defendant has been put to trial before the trier of the facts. Serfass v. United States (1975), supra (420 U. S. 377, 95 S. Ct. 1055, 43 L. Ed. 2d 265}.”’ The Court, noting that they could perceive no inherent merit in the federal rule over Montana’s state law, further stated: . . . It has been said that the federal rule is designed to prevent prosecutorial manipulation. IMinois v. Som- ervile (88 Ill. App. 2d 212, 232 N. E. 2d 115], supra. It has further been said that the federal rule guar- antees the defendant his valued right to have his trial completed before the tribunal and jury selected for 50 his case. Wade v. Hunter (1949), 336 U. S. 684, 69 S. Ct. 834, 93 L. Ed. 974; United States v. Jorn, supra [400 U. S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971)). „We foil to see in what manner the federal rule protects against these abuses to a greater extent than Montana law. Prosecutorial manipulation can be ef- fected as readily under one rule as under the other. If bent on manipulation, a federal prosecutor can move to dismiss after the jury is selected but before it is sworn, as readily as a state prosecutor can move to dismiss after the jury is sworn but before the first witness is called. In either case, the real protection inst prosecutorial manipulation is the discretion of the trial judge in granting or denying dismissal. Here, for example, the judge could have, but did not, dismiss with prejudice. Nor do we see any greater protection in the fed- eral rule as far as securing to defendant the right to have his trial completed before the court and jury selected to try his case. Montana adheres to this prin- ciple also. It all depends on when the trial is con- sidered to have commenced—whether on selection and swearing of the jury as in the federal courts, or on swearing the first witness as in Montana state courts.’ Cunningham, supra, at 188. The United States Supreme Court has never rendered any blanket holding to the effect that a State could not decide at what point jeopardy has attached. The petition- ers have cited Breed v. Jones, 421 U. S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975), which they contend holds that the States cannot decide for themselves when Fifth Amend- ment jeopardy attaches. This is clearly not the holding of that case. The sole issue in that case was whether a juvenile court adjudication constituted a trial, thereby es- tablishing double jeopardy on a subsequent adult trial for 51 the same offense. The Court, addressing itself primarily to the unique nature of juvenile proceedings and the legal rights of juveniles, concluded that such a proceeding was, in fact, like a trial and jeopardy attached. Nowhere in the opinion does the Court baldly assert that a State cannot determine at what point a trial commences. Nor does the Court ever attempt to impose any federal procedural rule upon the California Juvenile Court. The sole concern in Breed, as it is in the instant case, is not whether federal procedures were followed, but whether federally guaran- teed rights were violated. The Arizona Supreme Court, faced with the same con- flict between federal and state rules, upheld the constitu- tionality of their own state rule. The Court concluded: „The United States Supreme Court has held that the double jeopardy clause of the Fifth Amendment to the United States Constitution is applicable to the States. [citations omitted.] They did not define what consti- tuted jeopardy and we believe the States are still al- lowed a certain degree of discretion as to what amounts to jeopardy. We hold, as a matter of law, that jeop- ardy had not attached in this case.“ State v. Padilla, 107 Ariz. 134, 483 P. 2d 549, 553 (1971); cert. den. 404 U. S. 1049, 92 8. Ct. 718, 30 L. Ed. 2d 740 (1971). I agree with that Court's holding. [3] Therefore, I conclude that the statute does not violate the United States Constitution nor the Montana Constitution, Article II, Section 25. State of Montana v. Cunningham, supra, 535 P. 2d 186. B. Manifest Necessity. [4] Assuming that jeopardy attaches in state pro- ceedings when the jury is sworn, the doctrine of manifest 52 necessity would nevertheless require that a further trial be held as to petitioners Bretz and Cline. The State alleges in its brief and oral argument that petitioners were well aware of a typographical error as to one count in the information—specifically, a date of 1973 which had inadvertently been typed ‘‘1974’’. The State continues that the petitioners, knowing of this error, waited until the jury was sworn and then moved for dismissal. The State, considering that it was the most important of the nine counts, dismissed the remaining eight counts and refiled the information charging two counts—alternative pleading of a single offense. The petitioners contend that their motion to dismiss was simply to require the prosecution to conform the evi- dence to the pleadings and that there was no reliance by the defendants on any defect in the pleadings. Regardless of how the parties attempt to characterize the factual situation, it appears that the flaw was nothing more than a typographical defect, which should not bar the continuation and completion of the trial. The United States Supreme Court has been confronted with similar situations. In concluding that jeopardy had not attached, the Court in Illinois v. Somerville, 410 U.S. 458, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973), stated: ‘* . . The interest of the public in seeing that a crim- inal prosecution proceed to verdict, either of acquittal 53 or conviction, need not be forsaken by the formulation or application of rigid rules that necessarily preclude the vindication of that interest. This consideration, whether termed the ‘ends of public justice,’ [citation omitted] or, more precisely, ‘the public's interest in fair trials designed to end in just judgments,’ [cita- tion omitted] has not been disregarded by this Court.“ Somerville, supra, at 463, 93 S. Ct. at 1070. To prevent the refiling of an information and subse- quent trial as the result of such a typographical defect certainly precludes the public’s interest in a fair trial de- signed to end in a just judgment. As the Ninth Circuit recently stated: „To adopt appellee’s argument would require a mechanical formula to determine when jeopardy at- taches. This approach well could undermine the pol- icies and purposes of the constitutional safeguard. ‘Whether jeopardy attaches is based on flexible policy considerations rather than hard and fast rules. United States v. Brown, 481 F. 2d 1035, 1040 (8 Cir. 1973); see Illinois v. Somerville, 410 U. S. 458, 467, 93 S8. Ct. 1066, 35 L. Ed. 2d 425 (1973); United States v. Jorn, supra, at 480, 91 8. Ct. 547.“ U.S. v. Choate, 527 F. 2d 748, 1975. Therefore, it is ordered that the petitions for writs of habeas corpus are denied. * * 54 APPENDIX C In The United States Court of Appeals For The Ninth Circuit No. 76-1572 L. R. BRETZ, Petitioner-Appellant, vs. ROGER CRIST, ete., et al., Respondent-A ppellee. No. 76-1169 MERREL CLINE, Petitioner-Appellant, vs. THE STATE OF MONTANA, etc., et al., Respondent-A ppellee. NOTICE OF APPEAL Notice is hereby given that the respondent, State of Montana, above named, hereby appeals to the United States Supreme Court from the Order entered in this proceeding on the 19th day of November, 1976. DATED this 13th day of December, 1976. STATE OF MONTANA Office of the Attorney General By: /s/ Albert W. Meloling Chief Prosecutor Filed December 15, 1976 in the above-entitled court. —— — — 55 APPENDIX D 95-1711. Effect of former prosecution and multiple prosecutions. (1) Definitions of terms. (a) The term same transaction’’ includes conduct consisting of : (i) a series of acts or omissions motivated by a purpose to accomplish a criminal objective, and necessary or incidental to the accomplishment of that objective; or (ii) a series of acts or omissions motivated by a common purpose or plan and which result in the repeated commission of the same offense or affect the same person or the same persons or the property thereof. (b) An offense is an included offense’? when: (i) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or (ii) it consists of an attempt to commit the offense charged or to commit an offense otherwise included therein: or (iii) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission. (2) Method of prosecution when conduct constitutes more than one offense. When the same transaction may establish the commission of more than one offense, a person charged with such conduct may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if: 56 (a) one offense is included in the other; or (b) one offense consists only of a conspiracy or oth- er form of preparation to commit the other; or (e) inconsistent findings of fact are required to es- tablish the commission of the offenses; (d) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or (e) the offense is defined to prohibit a continuing course of conduct and the defendant’s course of conduct was interrupted, and unless the law provides that the spe- cifie periods of such conduct constitute separate offenses. (3) When prosecution barred by former prosecution. Provided the offenses, if more than one, were known to the attorney prosecuting upon sufficient evidence to jus- tify the filing of an information or the issuance of a war- rant of arrest and were consummated prior to the original charge, and provided the jurisdiction and venue of the sev- eral offenses lie in a single court, a prosecution based upon the same transaction as a former prosecution is barred by such former prosecution under the following cireum- stances : (a) The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a find- ing of not guilty by the trier of fact or in a determina- tion that there was insufficient evidence to warrant a con- vietion. A finding of guilty of a lesser included offense than the offense charged which is subsequently set aside is ee ee 57 an acquittal of the greater inclusive offense that was charged. (b) The former prosecution was terminated, after a complaint had been filed on a misdemeanor charge, after an information had been filed or an indictment found on a felony charge, by a final order of judgment for the de- fendant, which has not been set aside, reversed, or vacated and which necessarily required a determination inconsist- ent with a fact or a legal proposition that must be estab- lished for conviction of the offense. (e) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in: (i) a judgment of conviction which has not been re- versed or vacated; or (ii) a verdict of guilty which has not been set aside and which is capable of supporting a judgment, so long as failure to enter judgment was for a reason other than a motion of the defendant; or (iii) a plea of guilty accepted by the court, so long as failure to enter judgment was for a reason other than a motion of the defendant. (d) The former prosecution was improperly termi- nated. Except as provided in this subsection, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the first witness is sworn but before verdict. Termination under any of the following circumstances is not improper: (i) the defendant consents to the termination or waives his right to object to the termination; or * 58 (ii) the trial court, in the exercise of its discretion, finds that the termination is necessary because: (A) it is physically impossible to proceed with the trial in conformity with law; or (B) there is a legal defect in the proceedings which would make any judgment entered upon a verdict revers- ible as a matter of law; or (C) prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without mani- fest injustice to either the defendant or the state; or (D) the jury is unable to agree upon a verdict; or (E) false statements of a juror on voir dire prevent a fair trial. (4) Former prosecution in another jurisdiction— when a bar. When conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States or another state or of two courts of separate and/or concurrent jurisdiction in this state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecu- tion in this state under the following circumstances: (a) The first prosecution resulted in an acquittal or in a conviction as defined in subsection (3) and the subse- quent prosecution is based on an offense arising out of the same transaction. (b) The former prosecution was terminated, after the complaint has been filed on a misdemeanor charge, after the information was filed or the indictment found, by an acquittal or by a final order or judgment for the de- fendant which has not been set aside, reversed, or vacated ———ſñ＋ñ, . ͤ——— 59 and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense of which the defendant is subsequently prosecuted. | (5) Former prosecution before court lacking juris- diction or when fraudulently procured by the defendant. A prosecution is not a bar within the meaning of subsee- tions (3) and (4) under any of the following circumstances : (a) the former prosecution was before a court which lacked jurisdiction over the defendant or the offense; or (b) the former prosecution was procured by the de- fendant without the knowledge of the proper prosecuting officer or with the purpose of avoiding the sentence which might otherwise be imposed; or (e) the former prosecution resulted in a judgnient of conviction which was held invalid in any post-conviction hearing. History: En. 95-1711 by Sec. 6, Ch. 513, L. 1973. Multiple Offenses Upon allegation of assault and battery, rape, kidn and 1 ait arising from the same same transaction, + ~ 3 bound to prosecute them all at one time in so far as possible, e ex rel. Court, — M —, 525 P. 2d 1211. N --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1720%3A01. Public record. Not legal advice.