Opinion by
Cercone, J.,
On March 11, 1969, the defendant Eonald Edward Mills and one Larry Eugene Nelson were indicted in the County of Philadelphia, Commonwealth of Pennsylvania, for crimes connected with the robbery of the Crusader Savings and Loan Association, a federally insured savings and loan association, in the City of Philadelphia. The crimes were carrying a concealed weapon, unlawfully carrying a firearm without a license, and two charges of aggravated robbery.
On April 8, 1969, they were indicted in the United States District Court for the Eastern District of Pennsylvania on three counts of bank robbery and assault under Title 18 U.S.C. 2113 (a) (b) and (d).
Defendant Mills pleaded guilty to the Federal indictment and was sentenced to a term of five years imprisonment.
[271] Defendant, claiming lie was placed in double jeopardy, made a motion to have the state charges dismissed, but that motion was denied. He later pleaded guilty to the state charges of carrying a concealed weapon and unlawfully carrying a firearm without a license and was sentenced to five years’ probation and three years’ probation respectively, said probationary periods to run concurrently and to follow the five-year imprisonment sentence imposed by the Federal Court. Sentence was suspended on the robbery charges.
Defendant claims that the State charges arising out of the same facts upon which he was sentenced by the Federal Court should have been dismissed in that his constitutional rights were violated by being placed in double jeopardy. It is his contention that the decision of the United States Supreme Court in Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959), which permitted successive State and Federal prosecutions for the same bank robbery, was overruled by the Court’s decision in Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). This conclusion of the defendant is based on the premise that the Bartkus decision relied heavily on the holding in Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937), and that since Palko was overruled in Benton, the Bartkus decision was also struck down. In Palko, the Court held that the double jeopardy clause of the Fifth Amendment was not to be read into the due process clause of the Fourteenth Amendment. Twenty-two years later Benton, in overruling Palko, held that protection afforded by the due process clause of the Fourteenth Amendment of the Constitution includes the prohibition against double jeopardy afforded by the Fifth Amendment. Hence, the defendant reasons, the overruling of Palko destroyed the foundation of the Bartkus decision, thus overruling it.
[272] We cannot agree. Defendant’s argument must fall because he fails to distinguish the two different situations in which the Palko and Bwrtkus cases arose. Both cases involved two prosecutions and a discussion of double jeopardy. However, the cases are easily distinguished. The United States Supreme Court recognized the distinction and overruled only the Palko case. The Bartkus rule is still quite alive and was not altered or overruled when the court overruled Palko. A discussion of each of these cases will illustrate the distinction.
The Supreme Court decided the Palko case in 1937. In that case, the appellant challenged a Statute of Connecticut which permitted appeals in criminal cases to be taken by the State. Palko had been found guilty of murder in the second degree and sentenced to prison for life. Thereafter, under the Connecticut law, the State appealed and a new trial was granted due to errors during the first trial. At the second trial, Palko was found guilty of first degree murder and sentenced to death.
Palko claimed that this law subjected him to double jeopardy. He based his claim on the contention that the Fifth Amendment prohibition against double jeopardy was applicable to the States through the operation of the Fourteenth Amendment.
At this time, the Supreme Court decided that this part of the Fifth Amendment was not applicable to the States. Palko argued that the Fourteenth Amendment made the whole Bill of Rights, or at least the Fifth Amendment, applicable to the States. However the Court said at that time that the only parts of the first eight amendments which were applicable to the States were those involving a “. . . principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Citing Hebert v. Louisiana, [273] 272 U.S. 312, 316. The Court decided that the type of double jeopardy involved in Palho did not violate those “fundamental principles of justice”.
The most important thing to remember about Palho is that it involved a State prosecuting a man twice for the same offense.
The second case which must be discussed, Bartkus, involved a totally different concept, and one which the defendant fails to distinguish. In Bartkus, the appellant was tried in the Federal District Court for the Northern District of Illinois for robbery of a federally insured savings and loan association in violation of 18 U.S.C. §2113. The trial resulted in an acquittal. Thereafter, an Illinois grand jury indicted Bartkus, charging a violation of State robbery laws on the same set of facts. Bartkus was tried and convicted and was sentenced to life imprisonment.
The situation in Bartkus is almost identical with the one in the present case. In both situations, the crime involved was a bank robbery and the first trial was in the Federal Court. In both cases, a later trial was held in the State court for violations of State criminal laws arising out of the same transaction.
In 1959, the United States Supreme Court decided, in Bartkus, that the set of facts in that case did not constitute double jeopardy.
A reading of the Bartkus decision clearly reveals that it was the Court’s opinion that successive State and Federal prosecutions could not be construed as double jeopardy, regardless of whether the Fourteenth Amendment included protection against double jeopardy. The decision traces the historic background of the role of dual sovereignty and of the right of both the Federal and State Governments to impose criminal sanction noting:
“While United States v. Lanza, 260 U.S. 377, was the first case in which we squarely held valid a federal [274] prosecution arising out of the same facts which had been the basis of a state conviction, the validity of such a prosecution by the Federal Government has not been questioned by this Court since the opinion in Fox v. Ohio, 5 How. 410, more than one hundred years ago.
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Opinion by
Cercone, J.,
On March 11, 1969, the defendant Eonald Edward Mills and one Larry Eugene Nelson were indicted in the County of Philadelphia, Commonwealth of Pennsylvania, for crimes connected with the robbery of the Crusader Savings and Loan Association, a federally insured savings and loan association, in the City of Philadelphia. The crimes were carrying a concealed weapon, unlawfully carrying a firearm without a license, and two charges of aggravated robbery.
On April 8, 1969, they were indicted in the United States District Court for the Eastern District of Pennsylvania on three counts of bank robbery and assault under Title 18 U.S.C. 2113 (a) (b) and (d).
Defendant Mills pleaded guilty to the Federal indictment and was sentenced to a term of five years imprisonment.
[271] Defendant, claiming lie was placed in double jeopardy, made a motion to have the state charges dismissed, but that motion was denied. He later pleaded guilty to the state charges of carrying a concealed weapon and unlawfully carrying a firearm without a license and was sentenced to five years’ probation and three years’ probation respectively, said probationary periods to run concurrently and to follow the five-year imprisonment sentence imposed by the Federal Court. Sentence was suspended on the robbery charges.
Defendant claims that the State charges arising out of the same facts upon which he was sentenced by the Federal Court should have been dismissed in that his constitutional rights were violated by being placed in double jeopardy. It is his contention that the decision of the United States Supreme Court in Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959), which permitted successive State and Federal prosecutions for the same bank robbery, was overruled by the Court’s decision in Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). This conclusion of the defendant is based on the premise that the Bartkus decision relied heavily on the holding in Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937), and that since Palko was overruled in Benton, the Bartkus decision was also struck down. In Palko, the Court held that the double jeopardy clause of the Fifth Amendment was not to be read into the due process clause of the Fourteenth Amendment. Twenty-two years later Benton, in overruling Palko, held that protection afforded by the due process clause of the Fourteenth Amendment of the Constitution includes the prohibition against double jeopardy afforded by the Fifth Amendment. Hence, the defendant reasons, the overruling of Palko destroyed the foundation of the Bartkus decision, thus overruling it.
[272] We cannot agree. Defendant’s argument must fall because he fails to distinguish the two different situations in which the Palko and Bwrtkus cases arose. Both cases involved two prosecutions and a discussion of double jeopardy. However, the cases are easily distinguished. The United States Supreme Court recognized the distinction and overruled only the Palko case. The Bartkus rule is still quite alive and was not altered or overruled when the court overruled Palko. A discussion of each of these cases will illustrate the distinction.
The Supreme Court decided the Palko case in 1937. In that case, the appellant challenged a Statute of Connecticut which permitted appeals in criminal cases to be taken by the State. Palko had been found guilty of murder in the second degree and sentenced to prison for life. Thereafter, under the Connecticut law, the State appealed and a new trial was granted due to errors during the first trial. At the second trial, Palko was found guilty of first degree murder and sentenced to death.
Palko claimed that this law subjected him to double jeopardy. He based his claim on the contention that the Fifth Amendment prohibition against double jeopardy was applicable to the States through the operation of the Fourteenth Amendment.
At this time, the Supreme Court decided that this part of the Fifth Amendment was not applicable to the States. Palko argued that the Fourteenth Amendment made the whole Bill of Rights, or at least the Fifth Amendment, applicable to the States. However the Court said at that time that the only parts of the first eight amendments which were applicable to the States were those involving a “. . . principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Citing Hebert v. Louisiana, [273] 272 U.S. 312, 316. The Court decided that the type of double jeopardy involved in Palho did not violate those “fundamental principles of justice”.
The most important thing to remember about Palho is that it involved a State prosecuting a man twice for the same offense.
The second case which must be discussed, Bartkus, involved a totally different concept, and one which the defendant fails to distinguish. In Bartkus, the appellant was tried in the Federal District Court for the Northern District of Illinois for robbery of a federally insured savings and loan association in violation of 18 U.S.C. §2113. The trial resulted in an acquittal. Thereafter, an Illinois grand jury indicted Bartkus, charging a violation of State robbery laws on the same set of facts. Bartkus was tried and convicted and was sentenced to life imprisonment.
The situation in Bartkus is almost identical with the one in the present case. In both situations, the crime involved was a bank robbery and the first trial was in the Federal Court. In both cases, a later trial was held in the State court for violations of State criminal laws arising out of the same transaction.
In 1959, the United States Supreme Court decided, in Bartkus, that the set of facts in that case did not constitute double jeopardy.
A reading of the Bartkus decision clearly reveals that it was the Court’s opinion that successive State and Federal prosecutions could not be construed as double jeopardy, regardless of whether the Fourteenth Amendment included protection against double jeopardy. The decision traces the historic background of the role of dual sovereignty and of the right of both the Federal and State Governments to impose criminal sanction noting:
“While United States v. Lanza, 260 U.S. 377, was the first case in which we squarely held valid a federal [274] prosecution arising out of the same facts which had been the basis of a state conviction, the validity of such a prosecution by the Federal Government has not been questioned by this Court since the opinion in Fox v. Ohio, 5 How. 410, more than one hundred years ago.
“La Fox v. Ohio argument was made to the Supreme Court that an Ohio conviction for uttering counterfeit money was invalid. This assertion of invalidity was based in large part upon the argument that since Congress had imposed federal sanctions for the counterfeiting of money, a failure to find that the Supremacy Clause precluded the States from punishing related conduct would expose an individual to double punishment. Mr. Justice Daniel, writing for the Court (with Mr. Justice McLean dissenting), recognized as true that there was a possibility of double punishment, but denied that from this flowed a finding of pre-emption, concluding instead that both the Federal and State Governments retained the power to impose criminal sanctions, the United States because of its interest in protecting the purity of its currency, the States because of their interest in protecting their citizens against fraud.
“. . . The process of this Court’s response to the Fifth Amendment challenge was begun in Fox v. Ohio, continued in United States v. Marigold, 9 How. 560, and was completed in Moore v. Illinois, 14 How. 13. Mr. Justice Grier, writing for the Court in Moore v. Illinois, gave definitive statement to the rule which had been evolving:
“ ‘An offence, in its legal signification, means the transgression of a law.’ 14 How., at 19.
“ ‘Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The [275] same act may be an offence or transgression of the laws of both.’ 14 How., at 20.
“ ‘That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been, twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other.’ Ibid.
“In a dozen cases decided by this Court between Moore v. Illinois and United States v. Lanza this Court had occasion to reaffirm the principle first enunciated in Fox v. Ohio. Since Lanza the Court has five times repeated the rule that successive state and federal prosecutions are not in violation of the Fifth Amendment. Indeed Mr. Justice Holmes once wrote of this rule that it ‘is too plain to need more than statement.’ One of the post-Lanza cases, Jerome v. United States, 318 U.S. 101, involved the same federal statute under which Bartkus was indicted and in Jerome this Court recognized that successive state and federal prosecutions were thereby made possible because all States had general robbery statutes. Nonetheless, a unanimous Court, as recently as 1943, accepted as unquestioned constitutional la/w that such successive prosecutions toould not violate the proscription of double jeopardy included in the Fifth Amendment, 318 U.S., at 105.” (Emphasis added)
It is, therefore, clear that Bartkus held that successive State and Federal prosecutions were not violative of double jeopardy even under the Fifth Amendment. Therefore, this holding was not based merely on the Palko decision that the Fourteenth Amendment did not include the protection of the double jeopardy clause of the Fifth Amendment. It rested, rather on the concept of dual sovereignty which the Court had long recognized.
[276] The Supreme Court, in 1969, clearly recognized the distinction between the Palko situation and the Bartkus situation, the latter being the same as the instant case. In that year, the Court decided the Benton case, which overruled Palko. In Benton, the Court finally decided that the double jeopardy provision of the Fifth Amendment, through the due process clause of the Fourteenth Amendment, prohibited a state from trying a defendant twice for the same act.
The court said that “Insofar as it is inconsistent with this holding, Palko v. Connecticut is overruled.” Benton, supra, at 794. However, the Court clearly did not apply any prohibition to consecutive prosecutions by both the State and Federal Governments for having violated both the State law and the Federal law by the same acts. In Benton, in fact, the Supreme Court cited the Bartkus decision with regard to the historic origin of the double jeopardy guarantee and no intimation is made of any modification of that previous holding. Clearly, the Court recognized that there is a distinction between a State repeatedly retrying an individual for the same act and the dual sovereignty situation which Bartkus and the present case represent.
We hold therefore that the decision in Benton v. Maryland, supra, incorporating the double jeopardy clause of the Fifth Amendment into the due process clause of the Fourteenth Amendment, in no way modified the holding in Bartkus v. Illinois, supra, that prosecutions by both the Federal and State Governments for the violation of the laws of each did not constitute a violation of the double jeopardy clause of the Fifth Amendment. It is not material to the defendant’s case that the Supreme Court held in Benton that the Fourteenth Amendment includes within its ambit the protection of that double jeopardy clause. The only new rule that Benton established was that a State could no longer repeatedly retry a man for a crime, a practice [277] which. Palko had sanctioned. The overruling of Palko did not alter the rule established in Bartkus.
Therefore, the defendant’s contention that his prosecution by the State subjected him to double jeopardy must be rejected. The sentences of the court below are affirmed.