Seiders, Frank S., Jr.

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Penn State Dickinson Law: IDEAS

Volume 63 Issue 4 Dickinson Law Review - Volume 63, 1958-1959 6-1-1959 Double Jeopardy Frank S. Seiders Jr. Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation Frank S. Seiders Jr., Double Jeopardy, 63 DICK. L. REV. 355 (1959). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol63/iss4/5 This Comment is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact lja10@psu.edu. COMMENTDOUBLE JEOPARDYBy FRANK S. SEIDERS, JR.*In two recent cases before the United States Supreme Court, Abbate v.United States' and Bartkus v. Illinois 2, the problem of whether or not a de-fendant could be tried for the same offense in a state court and a federal courtarose. In each of these cases, of course, the defendant took the position thatsuch a procedure placed him in double jeopardy. The court in each case disa-greed and decided that this was not repugnant to the Constitution.Despite the fact that these cases received wide publicity, the problem isby no means a new one. As early as 1820 in Houston v. Moore ' this questionwas acknowledged. In that case, which involved a militia-man who refusedto serve when called upon by the President of the United States, the issue aroseas to whether or not the delinquent soldier could be made to face a state court-martial. In effect, he was contending -that his offense was a federal one. TheCourt, speaking through Justice Washington, on the question of the state'sjurisdiction said:"It was contended, that if the exercise of this jurisdiction, be admitted,that the sentence of the court would either oust the jurisdiction of the UnitedStates Court-martial or might subject the accused to be twice tried for thesame offense. To this I answer, that, if the jurisdiction of the two courts beconcurrent, the sentence of either court, either of conviction or acquittal,might be pleaded in bar of the prosecution before the other.....From this brief statement it appears that the Court was aware of thisproblem and appeared to be on the threshhold of the theory that, while theremay be concurrent jurisdiction over a single act, only one conviction or acquit-tal therefore was possible. This theory, however, was discarded twenty-sevenyears later, in 1847, in Fox v. Ohio,' where it was held that a single act couldbe an offense against two sovereigns, the United States and the state. Thisdoctrine was followed in two cases which were heard soon after the Fox case:* A.B., Dickinson College, L.L.B., Dickinson School of Law. Member of Dauphin County Bar.Associate in the firm of Hanson & Hanson, Harrisburg, Pennsylvania.179 Sup. Ct. 666 (1959).2 79 Sup. Ct. 676 (1959).a 18 U.S. (5 Wheat.) 1 (1820).446 U.S. (5 How.) 410 (1847).[ 3551DICKINSON LAW REVIEWUnited States v. Marigold' and Moore v. The People.' In these three cases theconcept of one act being two wrongs had its beginnings.In all three of the foregoing cases the Court was careful to point out thatthe same crime was not being punished twice. The position of the Court wasthat the single act constituted two entirely separate offenses. In the Fox case,which involved the passing of counterfeit coins, the following statement wasmade in the majority opinion: '"The punishment of a cheat or a misdemeanor practiced within the state,and against those whom she is bound to protect, is peculiarly and appropriatelywithin her functions and duties, and it is difficult to imagine an interferencewith those duties and functions which would be regular or justifiable."The Court went on to conclude that it was possible for the state to punishthe fraud occasioned by passing base coin and the United States could punishthe counterfeiting thereof.Similar conclusions were reached in both the Marigold 8 and Moorecases. However, the Court was not unanimous in reaching these opinions.Justice McLean in a vigorous dissenting opinion in the Moore case made thisobservation:"It is contrary to the nature and genius of our government, to punish anindividual twice for the same offense. Where the jurisdiction is clearly vestedin the federal government, and an adequate punishment has been provided byit for an offense, no state, it appears to me, can punish the same act. The as-sertion of such a power involves the right of a state to punish all offensespunishable under the Acts of Congress. This would practically disregard, ifit did not destroy, this important branch of criminal justice, clearly vested inthe federal government. . . . It is no satisfactory answer to this, to saythat the States and federal government constitute different sovereignties, andconsequently may each punish offenders under its own laws." 10Eventually, in the case of the United States v. Lanza, all of these caseswere cited by Chief Justice Taft in support of the proposition that a single actcould simultaneously be two wrongs, each of which is punishable. The rea-soning of the Chief Justice is best summed up from this quote:"It follows that an act denounced as a crime by both national and statesovereignties is an offense against the peace and dignity of both and may be550 U.S. (9 How.) 560 (1850).655 U.S. (14 How.) 13 (1852).7 See note 4 supra, opinion by Justice Daniel.8 See note 5 supra. In the Marigold case Justice Daniel said: "... the same act might, as toits character and tendencies, and the consequences it involved, constitute an offense against both theState and federal governments, and might draw to its commission the penalties denounced by either,as appropriate to its character in reference to each."9 See note 6 supra.10 See note 6 supra at 21. Justice McLean also disagreed with ,the result in the Fox case anddissented therein.(VOL. 63COMMENTpunished by each. . . . The defendents thus committed two different of-fenses by the same act, and a conviction by a court of Washington against thatstate is not a conviction of the different offense against the United States, andso is not double jeopardy.""The case went on to quote from Southern Railway Company v. R. R. Com-mission of Indiana 12 establishing that the jurisdiction of one sovereign shallnot preclude that of the other. This seems to completely destroy the theoryof the Houston Case "3 that a proceeding in one jurisdiction is a bar to prosecu-tion in the other.1"In one of the cases under consideration in this note, 'Abbate v. UnitedStates, 5 it is interesting to observe that the Court felt that they were beingasked to overrule the preceding Lanza case. This they declined to do, JusticeBrennan reasoning that:"Petitioner asks us to overrule Lanza. We decline to do so. No con-siderations or persuasive reasons not presented to the Court in the prior casesare advanced why we should depart from its firmly established principle.On the contrary, undesirable consequences would follow if Lanza were over-ruled . . . if the States are free to prosecute criminal acts violating theirlaws, and the resultant state prosecutions bar federal prosecutions based onthe same acts, federal law enforcement must necessarily be hindered." 16Bartkus v. Illinois 17 also put considerable emphasis on the Lanza case."There is one very noteworthy distinction between the Abbate and the Bart-kus cases. The latter involved a state trial after a federal acquittal for thesame acts; the former involved a federal conviction subsequent to a state con-viction. Although not within the scope of this note, it is interesting to observethat this creates an odd situation in Pennsylvania where, as a general principle,the Commonwealth is not allowed to appeal acquittals. This then creates the1 260 U.S. 377, 382 (1922).12 236 U.S. 439 (1915).is See note 3 supra.14 In the Southern Railway case Justice Laman made this observation: "This concurrent juris-diction may be either because the nature of the act is such that at the same time it produceseffects respectively within the sphere of state and federal regulations and thus violates the lawsof both, or where there is this double effect in a matter of which one can exercise control, but anauthoritative declaration that the paramount jurisdiction of one shall not exclude that of the other."Chief Justice Taft included this quotation in his opinion in the Lanza case, 260 U.S. 384.15 See note 1 supra.179 S. Ct. at 670, 671.17 See note 2 supra.18 Justice Frankfurter said: "While United States v. Lanza ... was the first case in whichwe squarely held valid a federal prosecution arising out of the same facts which had been the basisof a state conviction, the validity of such a prosecution by the Federal Government has not beenquestioned by this Court since the opinion in Fox v. State of Ohio . . . more than one hundredyears ago." 79 S. Ct. 676, 681. Justice Frankfurter goes into an exhaustive study of the historicalackground of this theory.1959.]DICKINSON LAW REVIEWanomaly that the state cannot appeal, but if a federal offense can be discov-ered, the offender can still be convicted, even after a prior acquittal in the state.In both of the cases being examined in this note, Chief Justice Warrenand Justices Black and Douglas dissented from the opinion of .the majority ofthe Court.1" Their reasoning was somewhat akin to that of Justice McLean inthe Fox case more than a century before, i.e., to try one twice on the same factsis repugnant to the constitutional guarantees against double jeopardy. In theBartkus case, the dissenting opinion vigorously attacks the possibility of a fed-eral conviction after a state acquittal in these words:"The Court's holding further limits our already weakened constitutionalguarantees against double prosecutions. United States v. Lanza . . . allowedfederal conviction and punishment of a man who had been previously convictedand punished for the identical acts by one of our states. Today, for the firsttime in its history, this Court upholds the state conviction of a defendentwho had been acquitted of the same offense in the federal courts. I wouldhold that a federal trial following either state acquittal or conviction is barredby the Double Jeopardy Clause of the Fifth Amendment. . . . I thinkdouble prosecutions for the same offense are so contrary to the the spirit ofour free country that they violate even the prevailing view of the FourteenthAmendment.. , 20The dissent in the Abbate case advanced the proposition that it is absurdto let the two sovereigns do together what neither could do separately.2In conclusion, the Supreme Court has clearly affirmed its position that aperson may be tried twice for the same act but only for different offenses in astate and a federal court. This is true irrespective of whether the first trialresults in a conviction or an acquittal. The decisions are far from unanimous,however, and the argument of the dissenters is best summed up in this quota-tion:"The Court apparently takes the position that a second trial for the sameact is somehow less offensive if one of the trials is conducted by the FederalGovernment and the other by a State. Looked at from the standpoint ofthe individual who is being prosecuted, this notion is too subtle for me tograsp. If double punishment is what is feared, it hurts no less for two "Sov-ereigns" to inflict it than for one. If danger to the innocent is emphasized,that danger is surely no less when the power of State and Federal Governmentsis brought to bear on one man in two trials, than when one of these "Sovereigns"proceeds alone. In each case, inescapably, a man is forced to face dangertwice for the same conduct." 2219 In both instances Mr. Justice Black wrote the dissenting opinion.2079 S. Ct. 676, 695 (1959).21 Justice Black said: "I am also not convinced that a state and the Nation can be consideredtwo wholly separate sovereignties for the purpose of allowing them to do together what, generally,neither can do separately." 79 S. Ct. 666, 675 (1959).22 Justice Black's dissent in Bartkus v. Illinois. See note 2 supra.[VOL. 63

Double Jeopardy

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Double Jeopardy

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