Cichos v. Indiana

PETITIONER:Cichos
RESPONDENT:Indiana
LOCATION:El Paso Natural Gas Co. Headquarters

DOCKET NO.: 45
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 385 US 76 (1966)
ARGUED: Oct 19, 1966
DECIDED: Nov 14, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – October 19, 1966 in Cichos v. Indiana

John P. Price:

May I first move the admission pro hac vice of my adversary Mr. Douglas McFadden, the Deputy Attorney General in the office of the attorney general for the State of Indiana.

I would so move his admission if I could sir.

Mr. Chief Justice, may it please the Court.

The issue presented by the instance case pertains to the nature and quality of the protection against double jeopardy.

Specifically we have asked this Court to revisit the decision of Palko versus Connecticut.

Specifically this case then concerned itself with whether the protection against double jeopardy is of such statute so as to be immune from state encroachment under the Due Process Clause of the Fourteenth Amendment.

The petitioner in this case was charged in two counts, the first was the violation in Indiana of the crime of reckless homicide and then the second count, the offense of involuntary manslaughter.

After a lengthy trial the petitioner was convicted only of the crime of reckless homicide and the jury returned no verdict on the count of involuntary manslaughter.

Although we submit it’s not really germane to the academic question here, it is well settled in Indiana that jury silence on account is tantamount to an acquittal.

So I submit that in every legal effect this petitioner was convicted of the crime of reckless homicide and acquitted of the crime of involuntary manslaughter.

Potter Stewart:

Is a — in Indiana is reckless homicide a lesser —

John P. Price:

No.

Potter Stewart:

A simple lesser included offense under involuntary manslaughter?

John P. Price:

No sir it is not.

The offenses are qualitatively identical.

Neither is included in the other.

They’re horizontal as opposed to vertical offenses.

(Inaudible)

John P. Price:

Yes sir.

With this exception Mr. Justice Harlan insofar as it applies to motor vehicle deaths.

Potter Stewart:

Which this was?

John P. Price:

Which this case is concerned with, yes.

Insofar as this case in motor vehicle deaths are concerned, these two offenses are qualitatively identical.

Byron R. White:

With different punishments or what?

John P. Price:

Yes sir, yes sir.

Reckless homicide statute does provide a lesser —

Potter Stewart:

Punishment.

John P. Price:

Punishment or at least the indeterminate sentence starts earlier, one to five as oppose to the 2 to 21 under the involuntary manslaughter.

Is it a decision on one (Inaudible)

John P. Price:

Mr. Justice, there is another statute in Indiana which I think recognizes the very double jeopardy features that we’re submitting to you today.

John P. Price:

In that it provides these two counts may be joined in one indictment or affidavit.

The trial then can concur simultaneously as to both.

It goes on to point out however that conviction as to one if they’re tried separately is a bar to a prosecution of the other and if there tried concurrently that a defendant may be sentenced only as to one.

Potter Stewart:

But can a jury bring a guilty — a verdict of guilt as to both?

John P. Price:

Yes sir.

Potter Stewart:

Are they tried together?

John P. Price:

Yes sir, but the jury — the sentence then imposed on the defendant can be only as to one.

Potter Stewart:

There the sentencing judge can take his pick as to which one?

John P. Price:

Yes sir, the — that’s correct.

The sentencing power under the indeterminate sentence provision in Indiana is a court not a jury function.

Potter Stewart:

And the court therefore if there is a finding of guilty as to guilt on both of this count, the court can take his choice as to whether to sentence him under the involuntary manslaughter except from whatever that was 2-20?

John P. Price:

21, yes sir.

Potter Stewart:

Or the, it was the reckless homicide —

John P. Price:

Reckless homicide.

Potter Stewart:

— which is 2 to 5.

John P. Price:

1 to 5, yes sir.

Potter Stewart:

1-5.

John P. Price:

Except he may not of course sentence as to both and as I say the statute itself recognizes the collateral estoppel when res judicata features here by providing the bar.

None — in this case, this petitioner was then charged as this statute to which you refer permits in two counts with both of these offenses.

Remembering of course that there qualitatively identical so in effect he was charged twice with the same offense in the sense that no element is in one that’s not in the other.

He then appealed his conviction which resulted only on the reckless homicide count to the Indiana Supreme Court and the Supreme Court of Indiana reversed.

Potter Stewart:

And —

John P. Price:

And —

Potter Stewart:

I suppose the grounds aren’t important but what were the grounds?

John P. Price:

Well sir, the trial court had failed to give certain instructions and the Indiana Supreme Court held that the trial court improperly refused instructions tendered by the petitioner here.

Potter Stewart:

Have nothing to do with the sufficiency of the evidence.

John P. Price:

No sir, no sir.

We sit back down and petitioner again retried not only for reckless homicide but also for involuntary manslaughter for which he had been legally acquitted.

Petitioner raised the question of his protection from double jeopardy both under the Indiana and Federal Constitutions at the trial level and the trial court held against his contention based apparently on its reading of the Palko decision.

Potter Stewart:

The Indiana constitution contain a —

John P. Price:

Double jeopardy.

Potter Stewart:

— double jeopardy provision identical to the federal one?

John P. Price:

It does sir.

But the courts have interpreted the Indiana constitutional double jeopardy provision substantially different in the federal courts that had interpreted this one and this case is a classic example.

I think the Indiana Supreme Court recognizes clearly that the Green decision interpreting double jeopardy in the federal constitution is not the law in the State of Indiana.

The appeal to the Indiana Supreme Court then resulted in an affirmance surely.

William J. Brennan, Jr.:

But what is that, the Indiana test of double jeopardy?

John P. Price:

Well, insofar as the — if you’re speaking of the same evidence type —

William J. Brennan, Jr.:

Yes, that’s what it —

John P. Price:

— Mr. Justice and I think it is to that degree somewhat attend to the federal test.

But if you are talking about vertical or horizontal offenses where there has been an acquittal or an implied acquittal such as existed in the Green decision then the interpretations are totally different, the antifascist of each other.

The Indiana statutes have another provision to the effect that when a petitioner or when an appellant appeals in Indiana and secures a new trial.

This is what he gets and by that they mean a new trial as to every thing including charges for which he’s been acquitted.

Now, I submit this is diametrically opposed to the decision of this Court in the federal level in Green, in the Green decision.

I point out the affirmance of the trail court’s decision in — by the Indiana Supreme Court partly to call your attention to a phrase which I think typifies the character and nature that the Indiana Supreme Court has given to double jeopardy when it stated in its opinion that this right, the protection from double jeopardy is not a hallmark under either the federal or state systems of jurisprudence.

I think it’s clear from this opinion that the Indiana Supreme Court regards double jeopardy as something totally within its power to obliterate or control.

I submit that the state in its brief in this case has not really objected at any point to the question but what — there was double jeopardy.

Its argument has proceeded entirely on the question of there was a waiver or perhaps no prejudice exist here or some other aspect to it.

But we are in complete accord as far as I understand their position to be that double jeopardy actually existed.

This man was retried again from the count of involuntary manslaughter for what she had already once been legally acquitted.

And when it is remembered that involuntary manslaughter and reckless homicide are identical qualitatively in essence this man stood trial twice on four different counts for the identical offense.

Earl Warren:

But I suppose the — I suppose the (Inaudible)?

John P. Price:

No sir, we would not be here.

Earl Warren:

(Inaudible)

John P. Price:

No sir.

Earl Warren:

(Inaudible)

John P. Price:

We have a —

Earl Warren:

Supposing that this is the joinder of the manslaughter and the (Inaudible)

John P. Price:

Well Mr. Chief Justice, I think the joinder initially is permitted by the Indiana statute.

Now I submit there is some questionableness about that statute permitting a joinder up to qualitatively identical offenses.

John P. Price:

But we’re not raising that question here.

We’re raising the fact that he was actually tried twice on involuntary manslaughter after he had first been acquitted of that offense.

Potter Stewart:

And at the second trial he was convicted of what?

John P. Price:

The second trial the jury reached the same result Your Honor.

He — they convicted him again of reckless homicide and again returned no verdict on the charge of involuntary manslaughter.

And this is what I guess blossoms into the states argument that there was no prejudice.

Potter Stewart:

Yes.

Byron R. White:

I’m not sure I understand, you’re using the word qualitatively Mr. Price?

John P. Price:

Well sir, the offense of reckless homicide has no element in it.

That is not also an involuntary manslaughter.

Byron R. White:

But are there more elements in involuntary manslaughter?

John P. Price:

No sir.

The elements are identical.

There is not — not one element in one that is not in the other.

Byron R. White:

Well I don’t quite understand the — what’s the difference, that only in penalty?

John P. Price:

Well, the involuntary manslaughter statute is a much older statute which is enacted really from the common law.

It’s a common law originated type of statute and covers the traditional involuntary manslaughter offenses.

Reckless homicide is a specific automobile offense geared to securing prosecutions and convections for automobile deaths.

But — and they do have separate penalties, this is true.

The involuntary manslaughter situation would cover cases that the reckless homicide would not factually.

Byron R. White:

What’s the difference in penalty?

John P. Price:

Involuntary manslaughter is 2 to 21 and the reckless homicide is a 1 to 5 both indeterminate sentences.

Byron R. White:

Well then the reckless homicide one ingredient has to be death by automobile?

John P. Price:

Yes sir.

Byron R. White:

But not in involuntary manslaughter necessarily?

John P. Price:

No.

But insofar as this factual situation is concern the issues are identical.

There is nothing in involuntary manslaughter that’s not in reckless homicide here or in any automobile death case.

Abe Fortas:

Is that — do you drive that from Indiana case law?

John P. Price:

I do sir.

John P. Price:

In fact —

Abe Fortas:

Not upon the statute?

John P. Price:

No sir, that’s correct.

Abe Fortas:

If the statutes — just a casual reading of the statutes would not indicate that that is so?

John P. Price:

That is —

Abe Fortas:

And the statute set out on page 14 in your brief, reckless homicide and then involuntary manslaughter.

John P. Price:

Mr. Justice that — I do get this in the Indiana cases, they are cited in our brief and this point has actually been conceded quite clearly by the state’s argument.

They take the position to that the Indiana Court is clear on this point.

These offenses are identical insofar as they apply to motor vehicle deaths.

I think the cases in Indiana are unanimous.

(Inaudible)

John P. Price:

Mr. Justice Harlan I think that is correct, the Indiana Supreme Court had extreme difficulty not only with Green but with the statute that provides the bar, the double jeopardy features in the statute and the fact that he had actually been acquitted of one.

But there’s nothing in this opinion that repudiates that position at all and the cases prior to this are uniform on that point.

(Inaudible)

John P. Price:

It’s my understanding sir.

William J. Brennan, Jr.:

Well if that’s so when the — when he was found guilty of reckless homicide, he was also found guilty of all the elements of involuntary manslaughter, wasn’t he?

He’d be — how can you possibly say then that he was acquitted for the involuntary manslaughter if he was found guilty of every element that it took to make up involuntary manslaughter?

John P. Price:

Mr. Justice if I might answer this way he was also acquitted of involuntary manslaughter which includes every element of reckless homicide and I could say with just as much for us that he was legally acquitted of reckless homicide.

William J. Brennan, Jr.:

Oh, really, did they do — you have to argue that silence means acquittal?

John P. Price:

That law I think is clear on this in Indiana.

William J. Brennan, Jr.:

Well, by law isn’t it the Supreme Court of Indiana says that isn’t the law in this case.

John P. Price:

Well I think the point you’re raising sir is that the verdicts are factually inconsistent and with this I would totally —

William J. Brennan, Jr.:

Well, if you assume there’s an acquittal on — of involuntary manslaughter and you’re just saying that they were acquitted because of silence.

I would think if when he get to crimes like this and — that are so identical if you say they are that the normal rule of silence meaning an acquittal might not hold.

John P. Price:

Well, I would agree if I understand your question sir that the verdict, the reckless homicide including as it does every element of involuntary manslaughter is factually opposed diametrically and the verdicts are inconsistent.

We raised this question initially —

William J. Brennan, Jr.:

Well, what verdicts are inconsistent?

John P. Price:

The verdict where the jury failed to acquit or convict on involuntary manslaughter.

William J. Brennan, Jr.:

Oh, but that’s not — that’s the — you’re just using a presumption there, just a rule, a normal rule that that you will assume there was an acquittal if there is silence by the jury.

And here there isn’t a silence by the jury as to involuntary manslaughter in the sense that they — they find guilty of every elements they detect to make it out.

John P. Price:

This is true.

There is a finding of guilty on the reckless homicide charge which includes every element of involuntary manslaughter.

But I cannot escape from the fact and maybe it is repetitive that he was tried.

I think really in terms of double jeopardy it makes no difference whether he was convicted or acquitted.

He was in jeopardy on involuntary manslaughter.

William J. Brennan, Jr.:

Well, I know — I think you answered the Chief Justice earlier Mr. Price that the — had they limited the weak prosecution to the prosecution under the label reckless homicide, you wouldn’t be here?

John P. Price:

Yes sir.

But I —

William J. Brennan, Jr.:

So that I must — as I have trouble with, if the test of double jeopardy is prosecution a second time for the same conduct — for the same conduct, what difference would it make whether they — if they’re entitled to do it under the label of reckless homicide, why would they be entitled to do it under the — on the label involuntary manslaughter?

John P. Price:

I think it makes substantial difference Mr. Justice Brennan.

First, in a forced prosecution leverage in the sense of two counts for the same thing, I think there’s something inherently unfair in permitting the state to enact over and over and over again ad infinitum in different — with different names the same statutory offense.

Then I think to subject him to trial twice after the jury has at least failed to convict him certainly the presumptions are in favor of a criminal defendant here I think.

I think all the laws to that effect.

Then you necessarily must interpret the jury verdict in favor of the state in order to reach this type of conclusion and the third reason is that in Indiana under Burns Indiana statutes 91820.

All felonies with indeterminate sentences — all felonies with indeterminate sentences have a court function to determine the sentence.

The court actually determines the sentence in Indiana.

This is the import of that Section, 91820.

Any where there is a felony with an indeterminate sentence it is a judicial function to determine the sentence within those indeterminate propositions.

Now, if you are to accept the state’s position here that the jury could really pick out which one of this they were going to convict on, you would be running directive — directly contra to the very Section in Indiana which says this is a court function.

The court determines this sentence not the jury by picking out one or the other of exactly the same offenses.

William J. Brennan, Jr.:

Well, you can say — at least you have to say in your case that the jury decided it would not punish him with involuntary manslaughter.

And whatever there was in this situation the jury chose not to purport to punish him from involuntary manslaughter.

At least the — they didn’t — all they found was a reckless homicide.

John P. Price:

They certainly do, that’s correct sir.

William J. Brennan, Jr.:

And it was to punish —

John P. Price:

They did not punish him for the —

William J. Brennan, Jr.:

He — they didn’t think that he had conducted himself of such a way as to justify a penalty up to 20 years for example.

John P. Price:

2 to 21, yes sir.

William J. Brennan, Jr.:

Yes, but I mean that under the verdict he could not have been punish more than five years.

John P. Price:

Yes.

John P. Price:

Under the verdict of this Court of the Indiana trial court, —

William J. Brennan, Jr.:

Yes.

John P. Price:

Yes sir, but —

William J. Brennan, Jr.:

The jury has made a decision that he should not be punished more than five years.

John P. Price:

Yes.

William J. Brennan, Jr.:

Was the jury told about the penalties?

John P. Price:

The jury has — in this case was instructed on what involuntary manslaughter was and the definition and I don’t recall that the instruction included the penalty at all.

William J. Brennan, Jr.:

But would they know anything, anything at all about the penalty?

John P. Price:

Probably not and I don’t know that if you follow Burns 91820 that it would be actually a jury function anyway because —

William J. Brennan, Jr.:

Well the jury might think that it makes no difference whatsoever what we find him guilty of.

John P. Price:

The jury might have come to that conclusion.

Actually there’s some includable offenses under this that the jury could have convicted off to which have different sentences of — to this degree I suppose it was before the jury what particular offense and the punishment for it.

William J. Brennan, Jr.:

Mr. Price, could he had been — I gather it could have been convicted under both counts for that same conduct? The jury might —

John P. Price:

Oh, yes sir.

Byron R. White:

(Inaudible)

John P. Price:

Yes sir.

Now —

Byron R. White:

On the punishment of why, is that it?

John P. Price:

Dissent — the statute says he may be sentence only as to one.

Byron R. White:

I see.

John P. Price:

Mr. Justice White he wasn’t — the court — the jury was instructed if preliminary on the penalty.

Byron R. White:

They were?

John P. Price:

That’s my understanding that I was not in the trial.

It’s my understanding they were instructed to what —

Byron R. White:

Well, is that in the record?

I suppose it must be somewhere.

John P. Price:

Preliminary instructions are not in here, the record here.

Byron R. White:

Are they in the original record filed with that?

John P. Price:

The original record from the Indiana Supreme Court would contain them, I’m sure.

Byron R. White:

That file was (Inaudible)?

John P. Price:

Yes sir, yes sir.

Byron R. White:

Well, is —

(Inaudible)

John P. Price:

If we prevail sir, the Palko decision I think must fall.

I think and —

(Inaudible)

John P. Price:

Yes.

Byron R. White:

It makes some sense though, isn’t it?

John P. Price:

I would — should think that it would be sent back to the trial court for a retrial.

We’re not asking that this man go free.

We’re asking only that he be retried for the crime of reckless homicide only.

Since he’s been once acquitted to use this phrase again of the crime of involuntary manslaughter.

May I just briefly comment on what I think is in most thorough discussion of this very problem in United States versus Wilkins.

(Inaudible)

John P. Price:

Yes sir, I certainly do.

I think the Green case Mr. Justice is not —

(Inaudible)

John P. Price:

— vertical offenses.

(Inaudible)

John P. Price:

Yes sir.

But it seems to me academically far worse to try a man on an identical offense essentially four times than to do what was done in the Green case.

(Inaudible)

John P. Price:

Sir I don’t see how it can help but reach Palko but not because of the four times that he was tried for the identical offense but because of the fact that he was tried twice for an offense for which he had once been legally acquitted.

Now, it’s true in Parco the facts arose differently and that the state had a right to appeal under the Connecticut statute.

Now, to that degree the facts are different but there was a retrial of the man on the same offense in Palko and that’s exactly what occurred here.

He was retried for this same offense for which he’d been convicted or acquitted.

Now, I see no difference academically whether does offenses happen to be stack up vertically like they were in Green includable offenses or whether there set side by side horizontally as they are here.

In fact academically it seems worst to do it this way.

(Inaudible)

John P. Price:

Yes sir.

Hugo L. Black:

And he was convicted of (Inaudible) at the same time.

John P. Price:

Qualitatively, yes sir.

(Inaudible)

John P. Price:

Sir I suppose had it been raised initially there might be a question as to whether once he’s acquitted of involuntary manslaughter and convicted of reckless homicide he could be retried at all.Had that been raised at that point that question very well might be pertinent.

It was not and we have taken the position that —

Hugo L. Black:

(Inaudible)

John P. Price:

It would because —

Hugo L. Black:

(Inaudible)

John P. Price:

Well sir, if I may answer.

Mr. Justice Black, I think the reason that it would be double jeopardy here is because insofar as count two is concern he has not been acquitted and is not seeking a new trial.

There’s nothing at —

Hugo L. Black:

(Inaudible)

John P. Price:

He is not being convicted, I’m sorry.

Hugo L. Black:

And he’s been acquitted before.

I understand this (Inaudible).

John P. Price:

You are — I think sir, raising the question that we raise initially in the trail of this case in the Indiana Supreme Court and that is that once he is acquitted of one and convicted of the other he necessarily must be acquitted of both because they’re identical —

Hugo L. Black:

Yes, that would be (Inaudible).

John P. Price:

We took that position and the Supreme Court reversed the decision on another ground and never did decide the inconsistency of the verdict.

Byron R. White:

Well let’s assume that there’s been expressed verdict.

Guilty on reckless homicide, count one, not guilty on involuntary manslaughter and that is a — you say, is absolutely inconsistent verdict in which way would you run it?

That he’s guilty on both or not guilty on both?

John P. Price:

I don’t think the Indiana Supreme Court has told us.

I suppose this is determined by Indiana law.

Byron R. White:

Yes, but they have this (Inaudible) because there wasn’t an express verdict here.

The Indiana Supreme Court said they would not apply this normal rule of inferring if acquittal from silence in this case because of the confusing nature of the statute.

John P. Price:

Yes they did sir.

Byron R. White:

That they’ve gotten — that’s the way they’ve avoided this called fact, it seems to me is doing there own statute.

John P. Price:

Mr. Justice White I think the answer —

Hugo L. Black:

(Inaudible)

John P. Price:

That’s —

Hugo L. Black:

(Inaudible)

John P. Price:

That’s right sir.

That’s right, if its — if it’s a constitutional issue then it is double jeopardy.

If I —

Hugo L. Black:

But then jeopardy (Inaudible) by the second time.

John P. Price:

Yes sir.

Hugo L. Black:

You put in a jeopardy (Inaudible).

John P. Price:

Yes sir, yes sir.

Now —

Byron R. White:

The Indiana Supreme Court said that in this state under this statute we do not imply an acquittal from the silence of the jury.

Didn’t they say that —

John P. Price:

In this case, that is —

Byron R. White:

— in this case?

John P. Price:

— essentially I think what the Indiana Supreme —

Byron R. White:

So that they said there has been no acquittal in this case of involuntary manslaughter.

John P. Price:

No I — I think they did not say this, they said, “We’re not going to really decide whether there’s an acquittal or conviction on the involuntary manslaughter charge.”

And actually Mr. Justice White the involuntary manslaughter charge was not before the Supreme Court.

It — except insofar as it applies to double jeopardy but there can’t be a conviction.

There was appealed from — was purely the conviction of reckless homicide.

William J. Brennan, Jr.:

But Mr. Price, I gather you want us to say that constitutionally in this situation, one, the double jeopardy clause applies to the state.

John P. Price:

I do want you to say that sir.

William J. Brennan, Jr.:

Two, and you want us to say secondly that the action of the jury was tantamount to a verdict of guilty on reckless homicide and an acquittal on involuntary manslaughter.

John P. Price:

Involuntary manslaughter.

William J. Brennan, Jr.:

Is that what you want us to say?

John P. Price:

Mr. Justice I don’t think you have to reach that point on this — to your second point.

William J. Brennan, Jr.:

Well if you’re relying on Green I don’t understand how we can avoid reaching that second point.

John P. Price:

The Green case, the man was charged with first degree murder and convicted of second with no expressed finding as I recall the facts on the first degree.

Of course as this is — this is an implied acquittal.

He was once in jeopardy on first degree murder.

William J. Brennan, Jr.:

But you’re asking us to say if it — this first trial, it was an implied acquittal on involuntary manslaughter, aren’t you?

Byron R. White:

Even though the Indiana —

John P. Price:

He would —

Byron R. White:

— court said they were.

John P. Price:

No, no.

sir I —

Byron R. White:

You’re not?

John P. Price:

I’m saying that he was once in jeopardy on that.

Whether he was ultimately convicted or acquitted, I think academically, does nothing to destroy the fact he was in jeopardy.

William J. Brennan, Jr.:

Well that gets me right back to what Mr. Justice Black asked you then.

Then I don’t understand why he can be put to trial on reckless homicide?

As you concede he could if they — just use that label and the second trial and you told us, all you want us to do is just send it back and tell them maybe, retrial on reckless homicide.

I would really think you’d be saying that he can’t be retried at all.

John P. Price:

I think sir.

Had that been raised we would — been saying this.

My — our answer to Mr. Justice Black’s question and maybe I didn’t make it clear was, I think there is grave doubts that this could have — could be done.

But we did appeal the conviction of reckless homicide, it was sent back for retrial.

It was appealed again at this point I was brought into this case and that issue was not presented.

But I think if —

(Inaudible)

John P. Price:

Oh, yes sir.

It’s presented in the constitutional sense of former jeopardy, yes sir.

Potter Stewart:

Mr. Price —

John P. Price:

Sir.

Potter Stewart:

May I ask you a question?

On page 51 of the record, the Supreme Court of Indiana says that they judicially know that the trial court practice is to tell the jury to return a verdict on only one of the charges in view of the limitation on the penalty that the jury is told to return a verdict on only one of the charges.

Now is — was it done in this case?

John P. Price:

There’s no instruction that I know of in this case that told the jury to do this.

In fact the statute doesn’t require this at all.

The statute said —

Potter Stewart:

Well, I know but do you sometimes have to get the law of the state from them not only from the statute but from what the actual practice is?

John P. Price:

Sir.

Potter Stewart:

And the Supreme Court of Indiana says that they judicially know that in this kind of a case the jury is returned to — is told to return a verdict on only one of the charges.

John P. Price:

Well I —

Potter Stewart:

I’m looking at page 51 and I’m asking you whether that was what was done in this case?

John P. Price:

I am certain that there was not.

Certain as I can be without going through the entire record.

The jury was told that there was no provision here to return a verdict on only one of these two counts.

In fact if I may answer this way Mr. Justice, I think this would in itself impose an improper provision because the statute in Indiana specifically provides in all indeterminate sentence cases that it’s a court function to determine the sentence not a jury function.

And if a court would take it upon itself at the trial level to say to the jury, you determine which one of this you’re going to convict of.

You have delegated that its sentence making power form the judiciary to the jury.

Potter Stewart:

Well but if that’s —

John P. Price:

And I —

Potter Stewart:

If that’s what the Indiana law is, that’s what it is and that’s what the Supreme Court says “it judicially knows.”

Well I know — so far as I know, there’s nothing in this record indicate that was done here and I know of as a practical matter even if that were done on occasion it would still be repugnant I submit to the Indiana statute.

Well, that’s for the Indiana Court’s to decide.

John P. Price:

Sir, yes sir.

Earl Warren:

(Inaudible)

John P. Price:

Thank you sir.

Douglas B. McFadden:

Mr. Chief Justice, may it please the Court.

The major question in this case is not whether the double jeopardy provision of the Fifth Amendment is incorporated in the Due Process Clause of the Fourteenth and therefore directly applicable to the states because even assuming arguendo that it is.

Ronald Cichos was not twice put in jeopardy.

Let me just briefly go back to the facts.

Ronald Cichos went to trial on a two count, amended affidavit charging him with reckless homicide and involuntary manslaughter.

The jury came in with a verdict, finding him guilty of reckless homicide.

From that verdict he filed a motion for new trial.

The trial court overruled his motion and from the ruling on the motion for new trial he appealed, the Supreme Court of Indiana assigning as his only heir the trial court’s ruling on the motion for new trial.

Supreme Court of Indiana granted him the exact relief that he prayed for.

They grant him of a new trial which in Indiana under Indiana’s appellate procedure means a complete new trial.

And this is what he received on the second trial and also he received an identical verdict.The jury again came in finding him guilty of reckless homicide.

It is our position that the petitioner’s reliance upon Green versus United States is completely unfounded.

Douglas B. McFadden:

Green versus United States is wholly inapplicable to the case at bar on — for several reasons, one of which is the waiver question.

Now this Court rejected the Government’s contentions on waiver on the double jeopardy on — after a — the granting of a new trial in Green Versus United States.

But that however does not dispose of the question on waiver in this case for the reason that in this case you’re dealing with state appellate procedure and the constitution does not require a state to provide a system of appellate review.

Does not provide a system of appellate — require a system of appellate procedure.

This Court in McKane verus Durston said that a state may accord an appeal upon whatever terms it deems proper which was cited with approval in Griffin v. Illinois.

So it is our position first of all that Ronald Cichos waived the double jeopardy question when he sought a new trial in the Indiana Supreme Court.

The only limitation that this Court is put upon McKane v. Durston was that in Griffin v. Illinois when it said, “The state’s appellate court system cannot be discriminatory under the Equal Protection Clause.”

It’s not to say that a state must provide a system of appellate review but only that it cannot be discriminatory.

So, the waiver question cannot be decided by this Court in the same way that was decided in Green because you are dealing with two different systems unless this Court is prepared to say that there is a constitutional right to appeal.

It must hold Ronald Cichos has waived the double jeopardy question but even if we assume arguendo that he has not waived the double jeopardy question, Ronald Cichos was never twice put in jeopardy in this case.

Because it’s been pointed out Indiana law and we will agree with Mr. Price, reckless homicide and involuntary manslaughter where an automobile is involved or identical offenses requiring identical proof only the punishment differs.

Reckless homicide carries a punishment of 1 to 5 as in this case, involuntary manslaughter 2 to 21.

It is for this reason — it is our position that Stroud versus United States is controlling in the case at bar and not Green versus United States because here you cannot say that the jury silence is tantamount to acquittal.

William J. Brennan, Jr.:

In that connection may I ask, I noticed your Supreme Court that in saying that it was not conclusively as an implied acquittal that they do that especially since this Court judicially know that trail court practice of telling jury to return the verdict on only one of the charges in view of the limitation on penalty.

My question is, was this jury told in the first trial?

I don’t see it in the (Inaudible) records.

Douglas B. McFadden:

Your Honor it is not in the record to my knowledge and I —

William J. Brennan, Jr.:

But what if he in the original record?

Douglas B. McFadden:

I am — I’m quite convinced that it would be on the original record.

William J. Brennan, Jr.:

But you know as a fact whether —

Douglas B. McFadden:

I do.

William J. Brennan, Jr.:

— the jury was told this?

Douglas B. McFadden:

I do not know as a fact.

William J. Brennan, Jr.:

I see.

Douglas B. McFadden:

The jury however, it would appear from the Supreme Court’s opinion as Your Honor has pointed out was aware of this and therefore the jury’s silence on the involuntary manslaughter count must be taken as a manifestation of mercy and certainly not acquittal because the fact that you have the identical fact patterns and proof required.

Now, this is what distinguishes this case in Green versus United States is the failure of proof question.

There is a difference in the proof required for felony murder, second degree murder and manslaughter.

Well in Green, you had a man who was convicted, charged and convicted of felony murder.

After this the jury found him guilty of second degree murder after which they went back for a new trail and he was found guilty of felony murder.

Now, — well the distinctions are subtle, there is a difference on the proof required between felony murder and second degree murder.

Douglas B. McFadden:

Felony murder requires proof of a killing and the perpetration of one of the common law felonies.

In this instance it was arson.

Second degree murder is a finding of a killing with malice in the absence of premeditation.

So it’s possible for the prosecution to have failed in its proof in that first trial in Green and then come back for another chance at it in the second trial.

It might contrast in Stroud versus United States you had a man who went to trial three times for first degree murder.

The first time he received the death sentence.

After a successful appeal, he received a sentence — I think it was life.

After again a successful appeal he received the death sentence and this Court affirmed the decision below saying that the jury’s decision in that second case was not a failure of proof, it’s not sufficient to put him on double jeopardy but was nothing more than a manifestation of mercy on the part of the jury which is exactly what we have in this case.

(Inaudible)

Douglas B. McFadden:

Yes your Honor.

Hugo L. Black:

But suppose that you (Inaudible)

Douglas B. McFadden:

I don’t think it would violate the constitution Your Honor unless you have — you would have a situation such as happened in Green even though they are the same punishment.

The fact that you might have will say all three are charged and they might fail to come in.

Hugo L. Black:

(Inaudible)

Douglas B. McFadden:

Well, it would depend again.

Hugo L. Black:

All, you are saying is that as far as (Inaudible).

Douglas B. McFadden:

Your Honor it would depend upon the facts requiring proof.

If the same facts are required for all three —

Hugo L. Black:

(Inaudible)

Douglas B. McFadden:

Alright, then you don’t have double jeopardy because you have to have — in order to have double jeopardy you’ve got to have the distinctions and proof.

Hugo L. Black:

(Inaudible)

Douglas B. McFadden:

To have the acquittal.

Hugo L. Black:

(Inaudible)

Douglas B. McFadden:

Oh, I’m sorry I misunderstood you.

The course question, yes I do agree that would — double jeopardy in that sense.

Hugo L. Black:

And that — is that (Inaudible).

Douglas B. McFadden:

No your Honor.

Hugo L. Black:

(Inaudible)

Douglas B. McFadden:

Well here you have actually two different offenses but on —

Hugo L. Black:

(Inaudible)

Douglas B. McFadden:

But he’ll only be punished once.

But if the jury comes in and finds him not guilty of one and silent on the other he stands a free man.

But if the jury comes in and finds him guilty on one and a silent on the other, he must pay his debt to society and go to jail.

William J. Brennan, Jr.:

Tell me this, suppose or may you do this in Indiana?

In a case like this and prosecute him only for reckless homicide?

Douglas B. McFadden:

Oh, yes.

William J. Brennan, Jr.:

You may?

And then suppose he’s acquitted, may you thereafter prosecute him for an involuntary manslaughter?

Douglas B. McFadden:

The law is not clear Your Honor but I think in light of the Indiana Supreme Court’s opinion in this case I don’t think you could.

It would stand as bar for the prosecution.

Abe Fortas:

What is there in the Indiana Supreme Court’s opinion in this case that leads you to say that?

Douglas B. McFadden:

No, I — it’s not this case your Honor.

I can’t cite exactly, it’s the Roger’s case, and I believe the Backman (ph) case with both I believe to this conclusion.

Abe Fortas:

Well, (Voice Overlap) what are those case — what’s the legal proposition in those cases?

Douglas B. McFadden:

They were double jeopardy cases.

I don’t recall the fact pattern in those cases Your Honor because they were not specifically involved here.

But from those cases —

Abe Fortas:

The elements — if the elements is I think Mr. Justice Black was submitting to you at the elements of the two crimes are the same then conviction or acquittal on one stand which is jeopardy, isn’t it?

Douglas B. McFadden:

That’s right, yes Your Honor.

Abe Fortas:

So that he can’t be tried on the other?

Douglas B. McFadden:

That’s right.

Abe Fortas:

Now, in this case this prosecution was started by a presentment, wasn’t it?

Douglas B. McFadden:

By —

Abe Fortas:

Not by indictment?

Douglas B. McFadden:

No sir, by affidavit Your Honor.

Abe Fortas:

By what?

Douglas B. McFadden:

By affidavit which is — it’s Indiana’s practice.

It’s almost identical to practice by information the federal system.

Abe Fortas:

Yes.

But why did the prosecutors choose to charge on the both reckless homicide and involuntary manslaughter?

Douglas B. McFadden:

Because I — of course I’m speculating, I’m looking into the prosecutor’s mind.

Prosecutor would feel that here you have a violation possibly both — of both statutes.

Of course you do since they require identical proof.

So you prosecute on both of them and leave it to the jury as to whether they want to send him away for 2 to 21 or send him away for 1 to 5.

Abe Fortas:

Well, is there any legal — is there any constitutional problem presented by this kind of a la carte choice of weaponry?

Douglas B. McFadden:

I will not foreclose the possibility Your Honor but it is not in this case.

It’s not a (Voice Overlap) —

Abe Fortas:

Right.

I must say, look at your Indiana cases but again just reading the statute I have the greatest difficulty in assuming and going along with the — you and your opponent on the proposition that these offenses that contain exactly the same elements and for example in the face of the statute involuntary manslaughter crime requires proof of — the violation of the law and for reckless disregard the — you don’t have to prove that, is that so or do I misreading it?

Douglas B. McFadden:

I would be inclined to agree with Your Honor at first reading the statute.

However I do not interpret the law in Indiana but that is the Supreme Court of Indiana and they have said this were identical offenses.

Abe Fortas:

It’s not in you brief, is it?

Or the —

Douglas B. McFadden:

Yes it is.

Abe Fortas:

It is?

Douglas B. McFadden:

We have — we have said, these are identical offenses but even if you —

Abe Fortas:

So you mean, when you cited Indiana cases in your brief.

Douglas B. McFadden:

Yes, yes we did Your Honor.

Abe Fortas:

And this —

Douglas B. McFadden:

But even if we assume arguendo Cichos was subjected to double jeopardy here.

This case is still and has failed because of the failure to show harmful prejudice.

William J. Brennan, Jr.:

He could not.

Douglas B. McFadden:

He was not prejudiced in the case at bar.

The jury never convicted this man of involuntary manslaughter.

In fact he was both times convicted of reckless homicide.

It says if he were never charged with involuntary manslaughter.

I must admit I was somewhat taken by surprise when my opponent said that they did not ask for a bar to prosecution if they — if this Court found and has favor but instead asks for only for a new trial in the reckless homicide.

William J. Brennan, Jr.:

Well Mr. McFadden from what you answered me earlier I take it that you tried him initially only for reckless homicide and he had been convicted.

You interpret your Supreme Court as holding that they could not thereafter have prosecuted him for involuntary homicide?

That is — whether acquitted or convicted if prosecuted only for reckless homicide that he could not thereafter have been prosecuted for involuntary —

Douglas B. McFadden:

Yes.

Abe Fortas:

— manslaughter, is that right?

Douglas B. McFadden:

That’s right Your Honor.

William J. Brennan, Jr.:

Why is this really different?

Douglas B. McFadden:

Well it — its doing again — as I come to the prejudice question, the man was never, never convicted of involuntary manslaughter, it says if he were never charged with it.

In this case you don’t have the possible prejudice that can arise from —

William J. Brennan, Jr.:

Well that’s my point.

Douglas B. McFadden:

From defending —

William J. Brennan, Jr.:

He was never charged with it the first time in effect you say.

He was acquitted because he ended up convicted of reckless homicide.

Douglas B. McFadden:

That’s right Your Honor.

William J. Brennan, Jr.:

And I don’t understand why if he was never charged with the first time and it would follow and he couldn’t be prosecuted for involuntary manslaughter had he once been convicted of reckless homicide, then why is in fact this case to the extent of the attempt on the second go around to prosecute him for involuntary manslaughter?

Douglas B. McFadden:

Well again, now we have to move all the way back to the Indiana law requiring a complete new trial.

Indiana law is such that the —

William J. Brennan, Jr.:

Under the indictment?

Douglas B. McFadden:

That’s right, (Inaudible) —

William J. Brennan, Jr.:

Alright, (Inaudible) whatever it is.

Douglas B. McFadden:

Completely all over again, it’s as if there were — as if there were no first trial.

So, you’re starting a complete — with a complete new slate.

(Inaudible)

Douglas B. McFadden:

Well, you would have an inconsistent verdict Your Honor if the jury came in and said we find the defendant not guilty of involuntary manslaughter and guilty of reckless homicide.

Now, you have and inconsistent verdict but they don’t —

Earl Warren:

Suppose (Inaudible)

Douglas B. McFadden:

I can only speculate Your Honor but I would say as a free man.

Now that they — but they get a — they receive a charge on this.

Earl Warren:

I beg your pardon?

Douglas B. McFadden:

They — the jury has charged on this so that you don’t have this situation, their charge in advance to bring in only one verdict.

Is that the reason, (Inaudible), a conduct, exactly the same under the brief —

Douglas B. McFadden:

Yes.

(Inaudible) — on the acquittal, on the conviction on one (Inaudible)?

Douglas B. McFadden:

Your Honor if you have an expressed finding by the jury, if the jury comes in and expressly acquits the man on either charge as I say because the — you have identical offenses involved, identical requirements of proof, he is a free man —

William J. Brennan, Jr.:

Yes, sir —

Douglas B. McFadden:

But —

William J. Brennan, Jr.:

— your — I just look at your instruction and apparently if there’s to be a verdict of acquittal it has to be on both.

He can’t be convicted on one and acquitted on the other as I read those instructions.

Douglas B. McFadden:

Right, you would have an inconsistent verdict.

William J. Brennan, Jr.:

The only thing you can do apparently from those instructions which are very detailed is to the forms of verdicts that may be brought in.

You may find him, if you find him guilty generally than the higher offenses, the higher punishments imposed.

But the jury’s given a choice to — itself to elect if they’re going to find him guilty at all, whether they’re going to find him guilty of the lesser — that carrying a lesser penalty or of that carrying a greater penalty.

Douglas B. McFadden:

That’s right.

William J. Brennan, Jr.:

That the way it works?

Douglas B. McFadden:

That’s right.

Byron R. White:

And there is no —

Douglas B. McFadden:

But —

Byron R. White:

— direct form there which permits an acquittal of —

Hugo L. Black:

Of one.

Byron R. White:

— of just one or the other.

Hugo L. Black:

Yes.

Douglas B. McFadden:

That’s right.

Byron R. White:

As just guilty of one or the other or both or —

William J. Brennan, Jr.:

Or a general.

Byron R. White:

If it’s a general verdict, he’s deemed to become guilty of only one, mainly the one carrying the highest offense.

Abe Fortas:

Suppose the defendant were charge in four identical counts in involuntary manslaughter, do you think that’s appropriate?

Douglas B. McFadden:

Four identical counts Your Honor?

Abe Fortas:

All, within —

Douglas B. McFadden:

All arising —

Abe Fortas:

Presumably could be a sentence under each count.

Douglas B. McFadden:

Well you could have the same —

Abe Fortas:

(Voice Overlap) transactions.

Douglas B. McFadden:

You could have four different people involved.

Douglas B. McFadden:

No, the same one defendant, four different counts, same transaction.

That’d be kind of shocking, wouldn’t it?

Well, that’s not on this case but I don’t think that would violate the constitution now as I think about it Your Honor.

Abe Fortas:

You don’t?

Douglas B. McFadden:

Because for this reason you would not be requiring defense counsel prepared but for one defense, you see.

Now —

Abe Fortas:

Well, you don’t have any doubts that jeopardy attaches here with respect to both counts on this — when the trial starts, the jury is compelled or whatever your local rule may be?

Douglas B. McFadden:

That’s right.

Abe Fortas:

Jeopardy counts with — attaches with respect to both counts.

If so —

Douglas B. McFadden:

Yes.

Abe Fortas:

— the jeopardy did attach here on the involuntary manslaughter count, is that right?

Douglas B. McFadden:

That’s right.

Abe Fortas:

As long as your reckless homicide, is that right?

Douglas B. McFadden:

That’s right.

Abe Fortas:

And your position is that although the case went to judgment on the reckless homicide charge and only the reckless homicide charge conviction was appealed and reversed for a new trial that some how rather the involuntary manslaughter count remained alive in a kind of a deep freeze during all of this so without jeopardy attaching but at some or rather the an attachment of jeopardy was wiped out or had no affect.

Douglas B. McFadden:

Well even if we assume that he was placed in jeopardy Your Honor, you still have the necessity of showing prejudice — harmful prejudice.

Abe Fortas:

Well, you have to assume he was placed in jeopardy don’t you on the involuntary manslaughter as — rather as well as reckless homicide?

Douglas B. McFadden:

He was placed in jeopardy but of course at that point he had waived his jeopardy when he went up to appeal on the Supreme Court of Indiana.

Abe Fortas:

Oh, that’s another question.

Douglas B. McFadden:

But going back —

Abe Fortas:

He didn’t go up to appeal on the involuntary manslaughter charge anyway, did he?

Douglas B. McFadden:

Your Honor he must take his appeal under the way Indiana Courts as it long as it’s not discriminatory.

Abe Fortas:

Would this — does Indiana law say anything specifically on that that you’re convicted on one count then you have to appeal on in — on both?

Douglas B. McFadden:

Well, I — it would necessarily be a part of both Your Honor because the fact that if you — you are granted a new trial, the slate is clean and you start all over again as if no trial had been had.

Abe Fortas:

Yes, but that (Inaudible) first of all that is (Inaudible) —

Douglas B. McFadden:

But even if we assume Your Honor that the fact that there was double jeopardy here again as I say you don’t have harmful prejudice and double jeopardy like —

Hugo L. Black:

(Inaudible)

Douglas B. McFadden:

Your Honor he was never convicted of involuntary manslaughter.

Both times the jury came in and found him guilty of reckless homicide.

Douglas B. McFadden:

You see —

William J. Brennan, Jr.:

Mr. McFadden, looking again at the instruction which is certainly detailed that sets out one, two, three, four, five and instructs the jury you may answer one of these and no more.

And the first one as I recall it is if you are to find him guilty generally you just find, say yes.

Guilty generally and then as a matter of law there told that carries the higher penalty and number two is if you want to find him guilty of reckless homicide fill in this, the answers to these questions and that carries such and such a penalty.

Number three is, if you want to find him guilty of involuntary manslaughter fill in this question, the answers to these questions and then they carry such and such a penalty.

Now, why is — why didn’t the jury deliberately make a choice here?

When it filled in the answers to the questions on reckless homicide, why isn’t that exactly like Green as in — as implying a rejection or an acquittal on the basis of the involuntary homicide?

Douglas B. McFadden:

Because here unlike in Green, you don’t have a failure of proof in the sense —

William J. Brennan, Jr.:

No but here the jury — actually here the jury’s given a choice.

The jury may find reckless homicide or involuntary manslaughter or a jungle verdict of guilty.

They’re given those three choices and among the three the (Inaudible) the reckless homicide.

Now, why isn’t that a rejection by the jury in the sense of an acquittal —

Douglas B. McFadden:

Because if you —

William J. Brennan, Jr.:

— on the other two choices?

Douglas B. McFadden:

If you have — because you have a requirement of identical proof Your Honor.

If you have rejection, one — if you have a rejection that rejects on both you cannot have both.

William J. Brennan, Jr.:

But did this jury rejected both, it rejected both the general verdict which would have carried the manslaughter penalty and it rejected the involuntary manslaughter count specifically and chose specifically the reckless homicide.

This is on the first trial.

Douglas B. McFadden:

Your Honor is right on the punishment.

There was a rejection on the punishment but not on the facts as far as guilt is concerned.

There was no rejection on the guilt but there was a rejection on the punishment and that is our point.

This was a mitigation of punishment by this jury and not an acquittal on the facts.

William J. Brennan, Jr.:

Your distinction for Green is that the premeditated murder carries an element different from —

Douglas B. McFadden:

Exactly.

William J. Brennan, Jr.:

Second degree murder.

Douglas B. McFadden:

Exactly, that’s true.

William J. Brennan, Jr.:

And here — here neither, all — both offenses carried the same element.

Douglas B. McFadden:

Exactly Your Honor, that is —

Byron R. White:

Well, what would it — aren’t you also arguing that even if they were different and certain they were different in regards to punishment.

But on the second trial he was found guilty of the lesser offense again and he may have been in double jeopardy but why should the case be reversed?

Byron R. White:

What you really have to do to reverse this case then I would suppose you would argue is to say that he couldn’t have been retried on reck — for reckless homicide either.

Douglas B. McFadden:

That’s right Your Honor and that’s the point — that’s the reason I was confused.

Byron R. White:

And that’s really the argument at this stage, isn’t it?

Douglas B. McFadden:

Yes, Your Honor that is the argument.

I thought you conceded there in effect that if the second trial had resulted in a conviction for involuntary manslaughter that there would be double jeopardy?

Douglas B. McFadden:

No, that was my opponent that was arguing that.

No, but you — your — you were defending that there was no double jeopardy because there was conviction.

Douglas B. McFadden:

I’m — yes, Your Honor, I’m saying there’s no prejudice.

I’m saying there’s a — I would concede there would be a possibility of prejudice if you had a conviction on involuntary manslaughter in that second trial.

If you don’t go so far as to say that if there had been a conviction on the second trial of involuntary manslaughter, there would be double jeopardy?

Douglas B. McFadden:

No, I will not go that far because he was never either.

Never was he acquitted of involuntary manslaughter and the final analysis, I am compelled to defend the decision by this Court in Palko versus Connecticut and the opinion written by Mr. Justice Cardozo and compelled because in it’s very core and in its very heart it is right.

It is right because it recognizes the distinction that double jeopardy and if I might also add this speedy trial clause, the Sixth Amendment stand on a different footing on the remainder of the Bill of Rights.

They stand on a different category because now with these two you deal with procedural constitutional rights and not evidentiary constitutional rights or what also could be terms substantive constitutional rights.

Now, I draw those three distinctions in the sense that speedy trial and double jeopardy constitute a bar to prosecution when they are violated.

You have a violation of one of the evidentiary constitutional rights, he receives a new trial.

But double jeopardy since it did not — since appellate procedure did not exist at common law as it does in modern America procedure involves questions of policy and policy questions which are not subject to the clear mandate of a constitution should be left to court’s exercising there supervisory powers.

Therefore the policy questions should be left to the highest court’s of the states rather to then to this Court with exception and this exception does exist that this Court, I think has recognized there is some double jeopardy in the Fourteenth Amendment.

Not the same as the Fifth Amendment but there is some double jeopardy there.

Well that’s the same double jeopardy that existed at common law.

Now, the double jeopardy in the Fifth Amendment, I think we have to recognize is the double jeopardy that as applies in the federal system to modern appellate procedure.

Therefore because it is a policy question it should be left — supervisory capacity of highest courts of the states under this Court over highest courts in the federal system.

We therefore ask this Court to affirm the decision of the Supreme Court of Indiana.

Earl Warren:

Mr. Price.

John P. Price:

Mr. Chief Justice, please the Court.

May I first comment on the questions that have been asked concerning the Indiana statutes and the question of, if an acquittal occurs as to one offense the effect upon a second trial for the other and I refer to page 15 of our brief where the statute itself is quoted if I may take from that statute this sentence, “With respect to the offense of reckless homicide and involuntary manslaughter, a final judgment of conviction of one shall be a bar to the other.”

It does not say an acquittal presumably, State of Indiana especially if the Supreme Court has interpreted the statutes it could not only enact statutes endlessly for the same offense but could try then piecemeal under that Section.

The state’s argument, if it please the Court presumes that there is no constitutional encroachment regardless of how many times the legislature may reenact the same qualitative statute that there is never a point where this has constitutional implications and I submit to law is just not that calloused.

The state says that Cichos here may have been put in jeopardy but he waived his jeopardy.

He waived it by taken a new trail on the conditions that the State of Indiana imposes.

John P. Price:

I submit to you that the state cannot impose a relinquishment of a constitutional protection as the price of an appeal whether an appeal be a constitutionally guaranteed right or not and I cite two cases from this Court that arose in Indiana, Dowd versus Cook, 340 U.S. 206 and Lane versus Brown, 372 U.S. 477.

There the appellate procedure for an indigent defendant was left solely to the discretion of the public defender whether the public defender wanted to order a transcript or not and this Court struck that down as discriminatory and improper.

The state could not impose this type of price for the exercising the right to appeal..

On the question of mootness and no prejudice, I submit to you that any time may jury has within it the power to compromise on alternative counts for the same offense compromising jury possibilities of the worst sort are present.

I submit to you that prosecution leverage of the worst sort is present when a state cannot only enact over and over again the same offense but can try over and over again for the same offense.

Byron R. White:

Counsel, I’m looking at this original transcript and the court’s instruction number 10 has this in it, if you find defendant guilty on either count on the affidavit and say nothing about the other count that would be equivalent to finding him not guilty on the count you do not mention.

Now, the Indiana Supreme Court seems to disagree with that but whether it does or it doesn’t, wasn’t the jury told what it would be doing if it didn’t mention count two?

John P. Price:

The jury was told the instruction which you read Your Honor, yes sir.

Byron R. White:

Well why — we’re not just relying upon some kind of a presumption or rule in this case then.

This is precisely what the jury was told.

John P. Price:

That is precisely what the jury was told, that is correct sir and I think the essence of that is that the jury did acquit the man for involuntary manslaughter for that very instruction.

But your Supreme Court said notwithstanding that instruction, that’s not the effect.

John P. Price:

Supreme Court said as I read their opinion, we don’t want to reach this question and we’re not going to really apply those cases that say that is an acquittal.

Byron R. White:

So, you think this is still — that instruction is still the law at least of this case?

John P. Price:

Yes sir.

Byron R. White:

Of this case at least?

John P. Price:

That this is an acquittal, yes sir.

William J. Brennan, Jr.:

But don’t you still have to get around the — you’re arguing now that the — at your conviction, your second conviction for reckless homicide to be set aside?

John P. Price:

No sir, we’re arguing that we should have a new trial under reckless homicide, it’s all we’re asking here.

Byron R. White:

You are — is that you’re asking?

John P. Price:

That —

Byron R. White:

You’re not asking — you don’t — you’re not saying that you would be barred from being retried for reckless homicide.

John P. Price:

That is correct sir, that is correct.

Now, I think that may have been on the case at one point but at this point we are only asking to be tried on one count, the count for which this man has been convicted and to leave the prosecution leverage and the compromising jury possibilities in this dual count out of this trial.

Hugo L. Black:

Why is that — has been in the (Inaudible) —

John P. Price:

No, I say that the —

Hugo L. Black:

Well, I don’t understand this, (Inaudible)?

Do you stand that it was waived, your trial (Inaudible)?

John P. Price:

No sir, if that is double jeopardy I am not.

My contention is that we raise the question of double jeopardy insofar as it pertains to the retrial of the involuntary manslaughter statute.

John P. Price:

I think there is a very grave question whether he can be tried all over again for reckless homicide but that was not injected at the trail of the case.

Thank you sir.