State v. Barger

220 A.2d 304, 242 Md. 616

• Court: Court of Appeals of Maryland
• Decided: June 8, 1966
• Docket: [No. 46, September Term, 1965.]
• Status: Published

Opinions

Horney, J.,

delivered the majority opinion of the Court. Marbury and Barnes, JJ., dissent. Dissenting opinion by Barnes, J., at page 628, infra.

Leslie Barger was indicted for murder and at a trial before a jury was found guilty of murder in the second degree but was acquitted of murder in the first degree. The conviction was appealed and this Court, in Barger v. State, 235 Md. 556, 202 A. 2d 344 (1964), reversed the judgment and remanded the case for a new trial because the trial court erred in denying an advisory instruction with regard to the right of the accused to assert the defense of self-defense.

When, following the remand, the State indicated that it intended to retry the accused as if he were being tried for the first time, he moved to dismiss the indictment on the ground that he would be prejudiced by being placed in jeopardy again under the indictment charging him with first degree murder of the victim after he had already been acquitted of that crime. The lower court, relying in part on the decisions of the federal courts, including the Supreme Court, and the dissenting opinion ¹ in Rowe v. State, 234 Md. 295, 310, 199 A. 2d 785, 793 (1964), concluded that a question of double jeopardy had been raised and granted the motion to dismiss the indictment “as to murder in the first degree.”

The question then on this appeal is whether the fact situation presents a case of double jeopardy against which protection should be granted. The accused contends that it does and the trial court agreed but the State contends that where the accused appeals a prior conviction the granting of a new trial nullifies the entire first trial and permits a retrial of the accused on the offenses of which he was found not guilty as well as those of which he was formerly acquitted.

The Principle of Double Jeopardy

That the “state” could not twice put a man in jeopardy for the same offense after an acquittal at a regular trial on an adequate indictment was well established at common law. 2 Hawkins, Pleas of the Crown, 515 (8th ed. 1824) ; 2 Hale, Pleas of the Crown, 240-50 (1st Am. ed. 1847). In 4 Blackstone’s Commentaries, it is said at p. 335 :

“[T]he plea of autrefoits acquit,2 or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence. And hence it is allowed as a consequence, that when a man. is once fairly found not guilty upon any indictment or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime.”

This basic common law principle was incorporated in the Fifth Amendment to the Constitution of the United States³ and the constitutions of most of the states, Maryland being one of the notable exceptions. However, even though there is no provision in the State Constitution prohibiting double jeopardy, protection against it is available in this state by way of the common law. See Ford v. State, 237 Md. 266, 269, 205 A. 2d 809 (1965); Wampler v. Warden, 231 Md. 639, 645, 191 A. 2d 594 (1963); Bennett v. State, 229 Md. 208, 212, 182 A. 2d 815 (1962) ; Moquin v. State, 216 Md. 524, 528, 140 A. 2d 914 (1958); Eggleston v. State, 209 Md. 504, 513, 121 A. 2d 698 (1956) ; State v. Adams, 196 Md. 341, 344, 76 A. 2d 575 (1950) ; Robb v. State, 190 Md. 641, 650, 60 A. 2d 211 (1948).

In an early case—Hoffman v. State, 20 Md. 425 (1863), where a jury, after being sworn and charged to try the accused was dismissed because the witnesses did not appear, and, on the second trial, the accused was convicted and sentenced—our predecessors, in adopting the interpretation of the United States’ Courts that the Fifth Amendment clause stating that no person shall be “subject for the same offense to be twice put in jeopardy” (being a ‘maxim imbedded in the very elements of the ■common law’) meant nothing more than “that where there had been a final verdict either of acquittal or conviction, on an adequate indictment, the defendant could not be a second time placed in jeopardy for the particular offense,” held that the accused, not having been twice put in jeopardy, was not entitled to be discharged. And in Gilpin v. State, 142 Md. 464, 121 Atl. 354 (1923), it was said at p. 466:

“That no person shall, for the same offense, be twice put in jeopardy, is both a provision of the Constitution of the United States, and an established rule of the common law, and a plea of former jeopardy is good under either. The rule forbids a second trial for the same offense whether the accused at the former trial was acquitted or convicted.”

It is also interesting to note at the outset that the Supreme Court of the United States, applying the Fifth Amendment in a District of Columbia case—Green v. United States, 355 U. S. 184 (1957)—to a factual situation similar to that in the case at bar reached a different result from that here advocated by the State. In the Green case, where the verdict of second degree murder was silent as to murder in the first degree and the defendant, on retrial under the original indictment, after the denial of a plea of second jeopardy, was convicted of first degree murder and sentenced to death, it was held that double jeopardy precluded the second prosecution.

While there is at present no question that’ the decision in Green does not control our decision in this case, there is some doubt as to whether or not the same result would be reached by the Supreme Court in a state case similar to Green through the application of the due process clause of the Fourteenth Amendment.⁴

Prior to the adoption of the Fourteenth Amendment there was not the slightest doubt that the first eight amendments (often referred to as the “Bill of Rights”) applied to and limited the power of the federal government but were not applicable to the states. See Harris v. State, 194 Md. 288, 71 A. 2d 36 (1950). Since the adoption of the Fourteenth Amendment, however, it has been held from time to time—more frequently in recent years than before—that under the due process clause of that amendment certain basic or fundamental rights, some of which are specifically contained in the Bill of Rights, are protected from violation by the states.

Trend of Federal Cases Under Fourteenth Amendment

In Palko v. Connecticut, 302 U. S. 319 (1937), it was contended that the Fourteenth Amendment made all of the specific guarantees of the Bill of Rights applicable to the states, but the Supreme Court rejected that idea and stated instead that certain of the privileges and immunities of the Bill of Rights had been taken over and brought within the Fourteenth Amendment by a process of absorption, namely, those that protect the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” In Palko, the defendant was indicted and tried for first degree murder and the jury returned a verdict of murder in the second degree. The State, alleging a prejudicial error of law, appealed the conviction. On appeal the conviction was reversed and a new trial was ordered. At the second trial, the objection of the defendant that he was being placed in jeopardy twice for the same offense in violation of the Fourteenth Amendment was overruled and the jury returned a verdict of murder in the first degree. The Supreme Court, in affirming the second conviction, stated that the lack of protection afforded by the State of Connecticut against double jeopardy in such circumstances did not violate a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Ten years after Palko the Supreme Court was again confronted with the question of whether a defendant was entitled to constitutional protection from state action because he had been twice placed in jeopardy. In Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947), involving an unsuccessful execution and the desire to' try again, four of the justices concluded that there was “no double jeopardy here which can be said to amount to a denial of federal due process in the proposed execution.” Justice Frankfurter, concurring to form the majority, stated that “the Due Process Clause * * * expresses a demand for civilized standards which are not defined by the specifically enumerated guarantees of the Bill of Rights [in that they] * * * neither contain the particularities of the first eight amendments nor are they confined to them” and concluded that the state action in that case did not offend a principle of justice rooted in the tradition and conscience of the people.

The question of double jeopardy was raised again in Gryger v. Burke, 334 U. S. 728 (1948), by a petitioner who was convicted of being a multiple offender and was sentenced to life imprisonment in a state court. Again, the Supreme Court instead of saying that constitutional protection could not be invoked against the states in some cases of double jeopardy, decided that double jeopardy was not involved. Five years later in Brock v. North Carolina, 344 U. S. 424 (1953), where a motion for a mistrial was granted after witnesses for the state refused to testify, the Court answered the claim of the petitioner that his retrial amounted to double jeopardy by saying: “the pattern here * * * does not deny the fundamental essentials of a trial, ‘the very essence of a scheme of ordered justice,’ which is due process.” Again the Court, although not rejecting the idea that due process imposes some limitations on the power of a state to reprosecute an individual for the same crime, restated the basic questions asked in Palko v. Connecticut, supra:

“Is that kind of double jeopardy to which the statute has subjected him a hardship so acute and shocking that our.polity will not endure it? Does it violate those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?”

and, in answering the questions in the negative, said:

“As in all cases involving what is or is not due process, so in this case, no hard and fast rule can be laid down. The pattern of due process is picked out in the facts and circumstances of each case.”

Hoag v. New Jersey, 356 U. S. 464 (1958), and Ciucci v. Illinois, 356 U. S. 571 (1958), involved the problems of successive prosecutions by the two states of several robberies in the first case, and homicides, in the second, arising out of single occurrences. In these cases, the Court recognized that the Fourteenth Amendment does impose some limitations on the state in the area of double jeopardy, but stating that “the question in any given case is whether [the course followed] has led to fundamental unfairness,” refused to grant constitutional protection from the states’ actions because there was no showing that due process had been violated.

More recently, in Bartkus v. Illinois, 359 U. S. 121 (1959), where a state prosecution followed an acquittal in a federal district court for the same offense—robbing a federally insured savings and loan association—a majority of the Court acknowledged the fact that the attack on the constitutionality of the state’s action rested on the due process clause of the Fourteenth Amendment since that clause “does not apply to the States any of the provisions of the first eight amendments as such,” but based their decision on the premise that crimes committed by the same act against two sovereignties were different crimes. The Court, however, at p. 127 of 359 U. S., quoted the statement of Justice Cardozo in Palko v. Connecticut, supra:

“ ‘In these and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states.’ 302 U. S., at 324-325.”

and concluded that “decisions under the Due Process Clause require close and perceptive inquiry into fundamental principles of our society.”

While the Supreme Court has yet to decide that reprosecution by a state of a person for the same crime has transgressed the limitations imposed by the due process clause of the Fourteenth Amendment,⁵ there would seem to be little doubt as to what the Court will do where, in its opinion, the power of a state to prosecute violates some “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” 302 U. S., at p. 325. The United States Second Circuit Court of Appeals, however, had no difficulty holding that the State of New York had deprived an accused of his liberty without due process of law in United States ex rel. Hetenyi v. Wilkins, 348 F. 2d 844 (1965), cert. den. 34 U. S. Law Week 3285 (U. S. Feb. 21, 1966), when the state tried the accused a third time on the same indictment after he had previously been tried twice for first degree murder and had won reversal of both convictions (one for second degree murder and the other for first degree murder) for errors committed during the respective trials was again convicted of first degree murder at the third trial.

Whether or not protection is afforded to Leslie Barger under the due process clause of the Fourteenth Amendment is a question we do not reach since we think this case raises a question of double jeopardy which is controlled by Maryland law.

Maryland Rule With Regard To Double Jeopardy

While' some aspects of the principle of double jeopardy have been considered in several other cases, three—State v. Shields, 49 Md. 301, Cochran v. State, 119 Md. 539, 87 Atl. 400, and State v. Rosen, 181 Md. 167, 28 A. 2d 829—will be sufficient to illustrate the effect of the common law rule as it has consistently been applied in this State.

In State v. Shields, supra, decided in 1878, no objections were made to the indictment for forgery and the accused plead not guilty. He was acquitted by a jury at a regularly conducted trial, at which the State had excepted to the admissibility of certain evidence. On the appeal by the State, where the only question was whether the exceptions were properly before the Court, it was said at p. 303 :

“It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge on a question of law, or of a misconception of fact on the part of the jury.”

In Cochran v. State, supra, decided in 1913, the defendant was tried on a ten-count indictment for violating the election laws and was acquitted under eight but was convicted under two of the counts. He appealed and this Court, in reversing the judgment and awarding a new trial, had this to say, at p. 544:

“It must be borne in mind, that we are now dealing exclusively with the ninth and tenth counts of the indictment, upon the traverser’s appeal. He was acquitted upon the other counts of the indictment, and as was said by this Court in State v. Shields, 49 Md. 301, that after an acquittal of a party upon a regular trial on an indictment for either a felony or misdemeanor the verdict of acquittal can never afterward be set aside and a new trial granted and it matters not whether such verdict be the result of a misdirection of the judge on a question of law or a misconception of fact on the part of the jury.”

While this broad language is possibly subject to some limitations, such as where some counts in an indictment merge into others, we do not reach any such questions in this appeal, and, therefore, leave them open.

Again, in State v. Rosen, supra, decided in 1942, where the defendants had gone to trial on an indictment charging them with violating the gambling laws and during the course thereof moved to quash a search and seizure warrant that had been issued without probable cause, the court granted the motion and, when the State admitted that it was impossible to proceed without the evidence it had seized in the search, the defendants were found not guilty. On appeal, the State contended that there had been no trial on the merits and that the defendants had not actually been placed in jeopardy, but this Court, citing Shields and Cochran, both supra, dismissed the appeal because the State had no right of appeal in a criminal case where the accused had once been acquitted and discharged on a valid indictment.

The rule to be applied to the facts of this appeal is that where there has been a regular trial on a valid indictment and a finding of not guilty of murder in the first degree the accused cannot thereafter be tried again at the instigation of the State for the offense of first degree murder.⁶ This does not mean, however, that the accused cannot be retried for second degree murder or manslaughter.

The-rules of criminal procedure have enlarged the right of the State to appeal adverse rulings in many respects,⁷ but, regardless of which party appeals, there is nothing in such rules indicating that an accused may be retried for the same offense of which he had been acquitted at the original trial upon remand of the case for a new trial. On the contrary, while Rule 772 states that the provisions of Chapter 800 (Appeals to the Court of Appeals) shall govern in a criminal case to the extent that the provisions therein are not inconsistent with the Rules in Chapter 700 (Criminal Causes), Rule 701, concerning the purpose and construction of Chapter 700, besides providing, among other things, that the criminal rules “shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay,” specifically states that “failure to set forth in this Chapter [700] any provision of common law or statute, not inconsistent with the rules in this Chapter [700], shall not be construed as an implied repealer thereof.”

The State, relying on Hobbs v. State, 231 Md. 533, 535, 191 (1963), cert. den. 375 U. S. 914 (1963), contends that at a new trial “the court hears the case as if it were being tried for the first time, and considers the entire matters of verdict, judgment and sentence as if there had been no prior trial.” We do not agree. The situation in Hobbs, where the defendant was awarded a new trial (by a federal court) on three charges of armed robbery of which he had been convicted (by a state court) because the original trial was not a regular one in that the defendant was tried without benefit of counsel, is not comparable to the situation in the first Barger case (235 Md. 556), where the defendant was acquitted of first degree murder but was found guilty of murder in the second degree and, having appealed the conviction of the lesser grade of homicide, was granted a new trial because the instructions to the jury were not proper. Stated otherwise, the cases are distinguishable because the accused in Hobbs was charged with the same robberies of which he had been convicted at the first trial, whereas the accused in Barger (had he not protested) would have been charged at the second trial with the grade of homicide of which he had been acquitted as well as the grade of homicide of which he had been convicted. But even if the cases were indistinguishable, the result would be the same, for, under the circumstances of this case, the rule with respect to double jeopardy is such as to preclude a retrial of the defendant at the instigation of the State for murder in the first degree. State v. Rosen, Cochran v. State and State v. Shields, all supra. As is evident, the Maryland rule is not out of line with the trend of the federal cases.

The further contention of the State that the appeal by the defendant in the first Barger case from his conviction of second degree murder had the effect of waiving the question of double jeopardy, or barring a plea to that effect, as to the charge of first degree murder of which he was acquitted, based on the premise that the granting of a new trial completely nullified the prior trial, is not only unreasonable under the circumstances of this case, but is not supported by the cases in this and other states. The contention is unreasonable (a) because to hold that the appeal and consequent granting of a new trial constituted a waiver would be inconsistent with the fact that the defendant sought only to reverse so much of the verdict as supported his conviction of second degree murder and (b) because the opening of the whole case for reconsideration would place too great a price on the right of an accused to appeal.

Under the facts and circumstances of this case, we hold that the acquittal of the defendant of murder in the first degree at the original trial is a bar to his retrial for that offense at the new trial for second degree murder and manslaughter: to hold otherwise would be against the principles of fundamental justice. As a consequence, it follows that the appeal and granting of the new trial did not have the effect of waiving the question of double jeopardy as to first degree murder. Such of the prior decisions of this Court as are inconsistent with this holding are hereby overruled to the extent of the inconsistency,

Since the order of the lower court limiting its dismissal of the indictment to the offense of murder in the first degree had the effect of declaring that the indictment was a valid one in all respects as to the offenses of murder in the second degree and manslaughter, there is no reason why the defendant should not be informed by the clerk that he is charged with second degree murder and in the alternative with manslaughter instead of being formally arraigned on the indictment. See Rule 719.

We specifically limit the holding herein to the facts of this case. While we recognize that many questions may arise concerning double jeopardy, we believe they can best be dealt with on a case to case basis.

Order affirmed; Prince George’s County to pay the costs.

1 . Ordinarily it is unsound to give “great weight” to a dissenting opinion.

2 . Autrefois acquit is defined as a plea in bar to a criminal action, stating that the defendant has been once already indicted and tried for the same alleged offense and has been acquitted. Black, Law Dictionary (4th ed. 1951).

3 . “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb * *

4 . “[N]or shall any State deprive any person of life, liberty, or property, without due process of law * *

5 . The Supreme Court of the United States has recently granted certiorari in an Indiana case where the defendant was originally tried for involuntary manslaughter and reckless homicide, and, after being convicted of the latter only and obtaining a new trial, was subsequently retried on both charges. On the appeal of the defendant contesting the validity of the second trial, the Supreme Court of Indiana, in denying the appeal, held that the “federal standard of double jeopardy * * * [cannot] be deemed so fundamental a concept of ordered liberty as to compel a total revision of state interpretation of the doctrine.” See Cichos v. State, 308 N. E. 2d 685; Same, 310 N. E. 3d 363; No. 850 Cichos v. Indiana, 34 U. S. Law Week 3339 (4-4-66). The questions the Supreme Court of the United States will consider are: (1) Is the Fifth Amendment’s protection against double jeopardy of such basic characteristic in law as to be immune, under the Fourteenth Amendment, from state encroachment? (3) Should Palko v. Connecticut, 303 U. S. 319, be reconsidered and overruled?

6 . While the case of State v. Mariana, 174 Md. 85, in which the Court of Appeals actually entertained an appeal by the State, appears to be an exception to the rule, the case does not constitute a- precedent permitting such an appeal because the defendant, having failed to move for dismissal, the propriety of the appeal was not in issue. The case was distinguished for this reason in State v. Adams, 196 Md. 341, and distinguished for another reason in State v. Rosen, 181 Md. 167. See the case note, entitled “Appeals By The State,” in 12 Md. L. Rev. 68, 70.

7 . Prior to the effective date of Chapter 700 (Criminal Causes) on January 1, 1962, the rule was that the State had a right to appeal only when the rulings on a demurrer to the indictment or other pleadings were adverse to the State or when the accused, having been convicted, appealed, in which case the Court was required to notice the exceptions the State had" also taken concerning the offense appealed from by the accused. See State v. Rosen, 181 Md. 167; Gilpin v. State, 142 Md. 464; State v. King, 124 Md. 491; Cochran v. State, 119 Md. 539; State v. Shields, 49 Md. 301.