Opinion — United States v. Oppenheimer

UNITED STATES ». OPPEN HEIMER. 85

is 242 U.S. Opinion of the Court.

UNITED STATES ». OPPENHEIMER ET AL.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR

THE SOUTHERN DISTRICT OF NEW YORK.

No. 412. Argued October 19, 20, 1916.—Decided December 4, 1916.

A “motion to quash” an indictment, based upon a former adjudication

that a previous indictment for the same offence was barred by the

statute of limitations, held, in substance, a plea in bar, United States

v. Barber, 219 U.S. 72, 78.

Under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat.

1246, the right to review decisions and judgments sustaining special

pleas in bar is not limited to eases in which the decisions or judgments

are based upon the invalidity or construction of the statutes upon

which the indictments are founded. United States vy. Keitel, 211 U.S.

370, and United States vy. Kissel, 218 U. S. 601, explained and dis-

tinguished.

A plea of the statute of limitations is a plea to the merits.

A judgment for defendant that the prosecution is barred by limitations

goes to his liability in substantive law; and, in whatever form the

issue was raised, such a judgment may be interposed as a conclusive

? bar to another prosecution for the same offence.

4 The Fifth Amendment, in providing that no one should be tvice put

in jeopardy, was not intended to supplant the fundamental principle

of res judicata in criminal cases.

THE case is stated in the opinion.

Mr. Assistant Allorney General Warren, with whom M r.

A. J. Clopton was on the briefs, for the United States.

Mr. Benjamin Slade, with whom Mr. L. Laflin Kellogg

and Mr. Abram J. Rose were on the briefs, for Oppenheimer,

Mr. Justice Hotmzs delivered the opinion of the court.

The defendant in error and others were indicted for a

Conspiracy to conceal assets from 2 trustee in bankruptey.

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86 OCTOBER TERM, 1916.

Opinion of the Court. 242 U.S.

Act of July 1, 1898, c. 541, § 29; 30 Stat. 544, 554. The

defendant Oppenheimer set up a previous adjudication

upon a former indictment for the same offence that it

was barred by the one-year statute of limitations in the

bankruptcy act for offences against that act, § 29d; an

adjudication since held to be wrong in another case.

United States v. Rabinowich, 238 U. 8. 78. This defence

was presented in four forms entitled respectively, de-

murrer, motion to quash, plea in abatement, and plea

in bar. After motion by the Government that the de-

fendant be required to elect which of the four he would

stand upon he withdrew the last-mentioned two, and

subsequently the court granted what was styled the mo-

tion to quash, ordered the indictment quashed and dis-

charged the defendant without day. The Government

brings this writ of error treating the so-called motion to

quash as a plea in bar, which in substance it was. United

States v. Barber, 219 U.S. 72, 78.

The defendant objects that the statute giving a writ

of error to the United States “From the decision or

judgment sustaining a special plea in bar, when the

defendant has not been put in jeopardy,”’ Act of March 2,

1907, c. 2564, 34 Stat. 1246, is limited like the earlier

clauses to judgments based on the invalidity or construc-

tion of the statute upon which the indictment is founded.

But that limitation expressed in each of the two preceding

paragraphs of the statute is not repeated here. The

language used in United States v. Keitel, 211 U.S. 370, 399,

had reference only to the construction of the indictment

and to its sufficiency upon matters not involving a statute,

in cases brought up by the United States under the

earlier clauses of the Act. That quoted from United

States vy. Kissel, 218 U. S. 601, so far as material also

meant that the sufficiency of the indictment would not

be considered here upon a writ of error to the allowance

of a plea in bar. In view of our opinion upon the merits

Ek CT OS

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UNITED STATES >». OPPENHEIMER. 87

242 U.S. Opinion of the Court.

we do not discuss the preliminary objections at greater

length.

Upon the merits the proposition of the Government is

that the doctrine of res judicata does not exist for criminal

cases except in the modified form of the Fifth Amendment

that a person shall not be subject for the same offence to

be twice put in jeopardy of life or limb; and the conclusion

is drawn that a decision upon a plea in bar cannot pre-

vent a second trial when the defendant never has been

in jeopardy in the sense of being before a jury upon the

facts of the offence charged. It seems that the mere state-

ment of the position should be its own answer. It cannot

be that the safeguards of the person, so often and so

rightly mentioned with solemn reverence, are less than

those that protect from a liability in debt. It cannot

be that a judgment of acquittal on the ground of the

statute of limitations is less a protection against a second

trial than a judgment upon the ground of innocence, or

that such a judgment is any more effective when entered

after a verdict than if entered by the Government’s con-

sent before a jury is empaneled; or that it is conclusive

if entered upon the general issue, United States v. Kissel,

218 U.S. 601, 610, but if upon a special plea of the stat-

ute, permits the defendant to be. prosecuted again. We

do not suppose that it would be doubted that a judgment

upon a demurrer to the merits would be a bar to a second

indictment in the same words. Jowa v. Fields, 106 Iowa,

406. Wharton, Crim. Pl. & Pr., 9th ed., § 406.

Of course the quashing of a bad indictment is no bar

to a prosecution upon a good one, but a judgment for the

defendant upon the ground that the prosecution is barred

goes to his liability as matter of substantive law and one

judgment that he is free as matter of substantive law is as

good as another. A plea of the statute of limitations is a

plea to the merits, United States y. Barber, 219 U.S. 72,

78, and however the issue was raised in the former case,

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88 OCTOBER TERM, 1916.

Opinion of the Court. 242 U.S.

after judgment upon it, it could not be reopened in a

later prosecution. We may adopt in its application to

this case the statement of a judge of great experience in

the criv-inal law: ‘“‘Where a criminal charge has been

adjudicaied upon by a court having jurisdiction to hear

and determine it, that adjudication, whether it takes the

form of an acquittal or conviction, is final as to the matter

so adjudicated upon, and may be pleaded in bar to any

subsequent prosecution for the same offence.

In this respect the criminal law is in unison with that

which prevails in civil proceedings.” Hawkins, J., in

The Queen v. Miles, 24 Q. B. D. 423, 431. The finality

of a previous adjudication as to the matters determined

by it, is the ground of decision in Commonwealth v. Evans,

101 Massachusetts, 25, the criminal and the civil law agree-

ing, as Mr. Justice Hawkins says. Commonwealth v.

Ellis, 160 Massachusetts, 165. Brittain v. Kinnaird, 1

Brod. & B. 432. Seemingly the same view was taken in

Frank v. Mangum, 237 U. S. 309, 334, as it was also in

Coffey v. United States, 116 U.S. 436, 445.

The safeguard provided by the Constitution against

the gravest abuses has tended to give the impression that

when it did not apply in terms, there was no other prin-

ciple that could. But the Fifth Amendment was not

intended to do away with what in the civil law is a funda-

mental principle of justice (Jeler v. Hewitt, 22 How. 352,

364), in order, when a man once has been acquitted on

the merits, to enable the Government to prosecute him

a second time.

Judgment affirmed.