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Opinion of the Court
Dissenting Opinion

United States Supreme Court

372 U.S. 734

Downum  v.  United States

 Argued: March 20, 1963. --- Decided: April 22, 1963

This case, involving a federal prosecution for stealing from the mail and forging and uttering checks so stolen, presents a question under the Double Jeopardy Clause of the Fifth Amendment '* * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *.' Petitioner and three others were charged in an indictment containing eight counts. The codefendants pleaded guilty, petitioner being tried alone before a jury and convicted on all but Counts 1 and 2, which did not apply to him. The claim of double jeopardy arose as follows:

On the morning of April 25, 1961, the case was called for trial and both sides announced ready. A jury was selected and sworn and instructed to return at 2 p.m. When it returned, the prosecution asked that the jury be discharged because its key witness on Counts 6 and 7 was not present-one Rutledge, who was the payee on the checks involved in those counts. Petitioner moved that Counts 6 and 7 be dismissed for want of prosecution and asked that the trial continue on the rest of the counts. This motion was denied and the judge discharged the jury over petitioner's objection. Two days later when the case was called again and a second jury impaneled, petitioner pleaded former jeopardy. His plea was overruled, a trial was had, and he was found guilty. The Court of Appeals affirmed, 5 Cir., 300 F.2d 137; and we granted the petition for certiorari because of the seeming conflict between this decision and Cornero v. United States, 48 F.2d 69, 74 A.L.R. 797, from the Ninth Circuit. 371 U.S. 811, 83 S.Ct. 54, 9 L.Ed.2d 54.

The present case was one of a dozen set for call during the previous week, and those cases involved approximately 100 witnesses. Subpoenas for all of them, including Rutledge, had been delivered to the marshal for service. The day before the case was first called, the prosecutor's assistant checked with the marshal and learned that Rutledge's wife was going to let him know where her husband was, if she could find out. No word was received from her and no follow-up was made. The prosecution allowed the jury to be selected and sworn even though one of its key witnesses was absent and had not been found.

From United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165, decided in 1824, to Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901, decided in 1961, it has been agreed that there are occasions when a second trial may be had although the jury impaneled for the first trial was discharged without reaching a verdict and without the defendant's consent. The classic example is a mistrial because the jury is unable to agree. United States v. Perez, supra; Logan v. United States, 144 U.S. 263, 298, 12 S.Ct. 617, 628, 36 L.Ed. 429; Dreyer v. Illinois, 187 U.S. 71, 85-86, 23 S.Ct. 28, 32-33, 47 L.Ed. 79; Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734. In Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974, the tactical problems of an army in the field were held to justify the withdrawal of a court-martial proceeding and the commencement of another one on a later day. Discovery by the judge during a trial that a member or members of the jury were biased pro or con one side has been held to warrant discharge of the jury and direction of a new trial. Wade v. Hunter, supra, 336 U.S. 689, 69 S.Ct. 837, 93 L.Ed. 974; Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146. At times the valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him may be subordinated to the public interest-when there is an imperious necessity to do so. Wade v. Hunter, supra, 336 U.S. 690, 69 S.Ct. 837-838, 93 L.Ed. 974. Differences have arisen as to the application ofthe principle. See Brock v. North Carolina, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456; Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223-224, 2 L.Ed.2d 199. Harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches. Gori v. United States, supra, 367 U.S. 369, 81 S.Ct. 1526-1527, 6 L.Ed.2d 901. But those extreme cases do not mark the limits of the guarantee. The discretion to discharge the jury before it has reached a verdict is to be exercised 'only in very extraordinary and striking circumstances,' to use the words of Mr. Justice Story in United States v. Coolidge, 25 Fed.Cas. 622, 623. For the prohibition of the Double Jeopardy Clause is 'not against being twice punished, but against being twice put in jeopardy.' United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300. The jury first selected to try petitioner and sworn was discharged because a prosecution witness had not been served with a summons and because no other arrangements had been made to assure his presence. That witness was essential only for two of the six counts concerning petitioner. Yet the prosecution opposed petitioner's motion to dismiss those two counts and to proceed with a trial on the other four counts-a motion the court denied. Here, as in Wade v. Hunter, supra, 336 U.S. at 691, 69 S.Ct. at 838, 93 L.Ed. 974, we refuse to say that the absence of witnesses 'can never justify discontinuance of a trial.' Each case must turn on its facts. On this record, however, we think what was said in Cornero v. United States, supra, states the governing principle. There a trial was first continued because prosecution witnesses were not present, and when they had not been found at the time the case was again called, the jury was discharged. A plea of double jeopardy was sustained when a second jury was selected, the court saying:

'The fact is that, when the district attorney impaneled the jury without first ascertaining whether or not his witnesses were present, he took a chance. While their absence might have justified a continuance of the case in view of the fact that they were under bond to appear at that time and place, the question presented here is entirely different from that involved in the exercise of the sound discretion of the trial court in granting a continuance in furtherance of justice. The situation presented is simply one where the district attorney entered upon the trial of the case without sufficient evidence to convict. This does not take the case out of the rule with reference to former jeopardy. There is no difference in principle between a discovery by the district attorney immediately after the jury was impaneled that his evidence was insufficient and a discovery after he had called some or all of his witnesses.' 48 F.2d at 71, 74 A.L.R. 797.

That view, which has some support in the authorities, [1] is in our view the correct one. We resolve any doubt 'in favor of the liberty of the citizen, rather than exercise what would be an unlimited, uncertain, and arbitrary judicial discretion.' [2] This means that the judgment below must be and is reversed.


Mr. Justice CLARK, with whom Mr. Justice HARLAN, Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.


^1  In United States v. Watson, 28 Fed.Cas. 499, 500-501, the court ruled as follows:

'The illness of the district attorney, it not appearing by the minutes that such illness occurred after the jury was sworn, or that it was impossible for the assistant district attorney to conduct the trial, and the motion to put off the case for the term being made by such assistant, cannot be regarded as creating a manifest necessity for withdrawing a juror. So, too, as to the absence of witnesses for the prosecution, it does not appear by the minutes that such absence was first made known to the law officers of the government after the jury was sworn, or that it occurred under such circumstances as to create a plain and manifest necessity justifying the withdrawing of a juror. The mere illness of the district attorney, or the mere absence of witnesses for the prosecution, under the circumstances disclosed by the record in this case, is no ground upon which, in the exercise of a sound discretion, a court can, on the trial of an indictment, properly discharge a jury, without the consent of the defendant, after the jury has been sworn and the trial has thus commenced. To admit the propriety of the exercise of the discretion on such grounds would be to throw open the door for the indulgence of caprice and partiality by the court, to the possible and probable prejudice of the defendants. When the trial of an indictment has been commenced by the swearing of the jury, the defendant is in their charge, and is entitled to a verdict of acquittal if the case on the part of the prosecution is, for any reason, not made out against him, unless he consents to the discharging of the jury without giving a verdict, or unless there is such a legal necessity for discharging them as would, if spread on the record, enable a court of error to say that the discharge was proper.' And see United States v. Shoemaker, 27 Fed.Cas. 1067.

^2  United States v. Watson, supra, note 1, 28 Fed.Cas. p. 501.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).