Hoag v. New Jersey/Dissent Douglas

by William O. Douglas

United States Supreme Court

356 U.S. 464

Hoag  v.  New Jersey

 Argued: Nov. 19, 1957. --- Decided: May 19, 1958

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

We recently stated in Green v. United States, 355 U.S. 184, 190, 79 S.Ct. 221, 225, 2 L.Ed.2d 199, that by virtue of the constitutional protection against double jeopardy an accused can be forced to 'run the gantlet' but once on a charge. That case, involving a federal prosecution, provides for me the standard for every state prosecution as well, and by that standard this judgment of conviction should be reversed. ^[1]

Hoag is made to run the gantlet twice. The facts are simple. Five men-Cascio, Capezzuto, Galiardo, Dottino, and Yager-were together at Gay's Tavern when three armed men entered and robbed them. Petitioner was indicted and tried for the offenses of robbing three of the five.

One indispensable element of the crime was the taking of property 'by violence or putting him in fear,' as provided by the New Jersey statute defining robbery. N.J.Stat.Ann.1939, 2:166-1. ^[2] The critical evidence was petitioner's alibi: He claimed to be at another place at the time. One witness, however, identified him as one of the robbers. The jury acquitted. Then petitioner was indicted for robbing one of the remaining five named individuals. The criminal transaction, unlike that in Burton v. United States, 202 U.S. 344, 378, 26 S.Ct. 688, 697, 50 L.Ed. 1057, was indivisible. The time and place were the same. ^[3] The central issue was the same, for, as stated by Justice Heher, dissenting, below, '* * * here the assaults were simultaneous, the putting in fear was but a single act or offense operating alike upon all the victims of the felonious endeavor at the same time.' 21 N.J. at page 510, 122 A.2d at page 635. The basic facts canvassed were the same. Petitioner's alibi was tendered once more. The testimony of the selfsame witness identifying petitioner as one of the robbers was introduced. This time petitioner was convicted.

The resolution of this crucial alibi issue in favor of the prosecution was as essential to conviction in the second trial as its resolution in favor of the accused was essential to his acquittal in the first trial. Since petitioner was placed in jeopardy once and found not to have been present or a participant, he should be protected from further prosecution for a crime growing out of the identical facts and occurring at the same time. ^[4]

Hoag was once made to 'run the gantlet' on whether he was present when the violence and putting in fear occurred. Having once run that gantlet successfully, he may not be compelled to run it again. ^[5]

Notes

1. See Brock v. State of North Carolina, 344 U.S. 424, 440, 73 S.Ct. 349, 357 (dissenting opinion).
2. This section has been repealed and reenacted in substantially the same form. N.J.Stats.Ann.1953, 2A:141-1.
3. Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489, arose in the Philippines under an Act of Congress which applied to the Islands the protection of double jeopardy. Petitioner was first convicted of being drunk and indecent in a public place, an offense under an ordinance of Manila. Then he was convicted a second time for insulting a public official, a crime under the penal code of the Islands. The acts and words charged in the second prosecution were the same as those charged in the first. The Court sustained the second conviction, Mr. Justice Harlan dissenting, on the grounds that while 'the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other.' Id., 220 U.S. at page 345, 31 S.Ct. at page 423. This case appears contrary to the position I take here. But it, like other cases arising under the laws of the Philippine Islands prior to their independence, has not been deemed an authoritative construction of the constitutional provision. See Green v. United States, supra, 355 U.S. at pages 194-198, 78 S.Ct. at pages 227-229.
4. In 1912, a New York court, under almost identical circumstances, stated:
5. The result I reach does not square with Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. Palko was indicted for the crime of murder in the first degree and was found guilty by a jury of murder in the second degree. He was sentenced to confinement for life. Pursuant to a state statute, the prosecution appealed and obtained a reversal and a new trial. This time Palko was convicted of murder in the first degree and sentenced to death. That is a decision under the Double Jeopardy Clause with which I do not agree since Palko was forced to face the risk of the death penalty twice on the same evidence and the same charge.