Duncan v. Tennessee

PETITIONER:Duncan
RESPONDENT:Tennessee
LOCATION:Odessa Junior College

DOCKET NO.: 70-5122
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Tennessee Supreme Court

CITATION: 405 US 127 (1972)
ARGUED: Jan 13, 1972
DECIDED: Feb 23, 1972

ADVOCATES:
Everette H. Falk
Everett H. Falk – for respondent
Rodger N. Bowman – for petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – January 13, 1972 in Duncan v. Tennessee

Rodger N. Bowman:

To-wit a gun, to-wit a 22 caliber pistol.

The matter proceeded for the trial.

A jury was selected and sworn.

The defendant entered his pleas, plea of not guilty.

The state put its first witness on the stand.

This first witness Mr. Kenneth Albright (ph) was asked what type of gun were they looking for.

His answer was a 22 caliber riffle.

To this, counsel for the defendant objected on the basis that the indictment charged at the robber was accomplished with the 22 caliber pistol.

At the much argument out of the presence of the jury, the judge ruled in favor of counsel for the defendant and the Attorney General said, well, in this case, then I think that what ought to be done is a jury instructed return of verdict of not guilty and this was done.

The judge instructed the jury that because of the fact that there was a mistake in the indictment that he was instructing the jury to return a verdict of not guilty for the defendant.

Then a short time later, the defendants were again indicted charging the same facts had been charged in the original indictment, except this time charging that the robbery was accomplished with a deadly weapon, to-wit a gun, to-wit a 22 caliber riffle, this thing — the only difference in the two indictments.

Through this indictment a plea of double jeopardy was filed alleging both a violation of the State of Tennessee Constitutional Provisions and United States Constitutional Provisions.

This plea was overruled and the matter went to trial.

At the trial, for the prosecution it was asked, was there any other robbery at this service station on this day and the answer was no.

As a result of this second trial, the defendant was found guilty.

After this occurred, proper appeals were perfected, the Tennessee Court of Criminal Appeals with one judge dissenting overruled the Montgomery County Criminal Court and ordered the defendants released.

The State of Tennessee petitioned the Tennessee Supreme Court as a result of this, certiorari was granted by the Tennessee Supreme Court and the Tennessee Supreme Court overruled the Tennessee Court of Criminal Appeals.

The question involved is the mere changing of the type of weapon in this indictment.

Does this create a different offense so that the double jeopardy provisions do not apply?

Now there are several tests that have been applied over the years to determine whether or not double jeopardy or the double judge provisions of the constitutions apply and one of these is are they the same offenses.

Tennessee’s armed robbery Statute 39-3901 sets out in the common law terminology, I mean the robbery provisions just as it would be in the common law, those things are not necessary.

It adds the punishment and then it goes on to say but if said robbery is accomplished with the use of a deadly weapon then the punishment shall be such and such.

The Tennessee Supreme Court has held that this particular statute when the punishment was increased by the legislation in 1955 for armed robbery, they did not create a separate offense but the only offense was robbery.

Now, back at the original trial of this case when the Attorney General asked that the judge return a verdict or direct the jury to return a verdict to not guilty, counsel for defendant objected.

We felt that they could go ahead and proceed because robbery was still vague that they could not prove a weapon.

Even if they could not prove the particular type of weapon that was involved.

Mr. Bowman, under Tennessee practice, did the State have any remedy by way of amendment to the indictment available at this point or was it stuck with the indictment as drawn?

Rodger N. Bowman:

There is a statute in Tennessee, Mr. Justice that provides that by agreement of counsel, an indictment can be amended.

So that if this had been done — yes, the indictment could have been amended.

My thoughts of the matter were had the Attorney General said to counsel for the defendant and I was counsel for the defendant at that stage, let us amend the indictment or if you refuse to amend the indictment then I will ask the judge to grant a mistrial.

Rodger N. Bowman:

We may have been in a different situation but this was not the case.

The Attorney General said to the Court, well, are you to go ahead in trial on this one or I will get him — have him re-indicted and they have chose to have the request of the judge to instruct the judge to return a verdict of not guilty and then did re-indict him.

So there was a procedure that it had been taken, it had appeared it had been followed but it was not.

Do you say — you have told us that you objected to the idea of having a jury return a verdict of acquittal on the first indictment?

Rodger N. Bowman:

Yes Your Honor.

And does not appear in the record, does it?

Rodger N. Bowman:

Yes it does Your Honor in the — it is not in the appendix but it is in the record.

We did request that the jury not be instructed to return a verdict of not guilty, we felt that this would be a problem that would arise in the future if this was done.

I take it —

Excuse me.

You had originally — it was your objection however that — put this whole business in motion, was it not?

Rodger N. Bowman:

Yes Your Honor.

And that — none of this is in the appendix that I can find.

Rodger N. Bowman:

It appears in the order.

I am missing that page that it is on.

It appears on page 5 in the judgment of the Criminal Court of Montgomery County.

Thank you.

Rodger N. Bowman:

And I think in there it will state that — I believe it states in there, we have objected but it does appear in the opinion of the Criminal Court of Appeals in Tennessee, I know and it is in the record that we did object to this being done.

Warren E. Burger:

Mr. Bowman, I take it from your answer to Mr. Justice Rehnquist that you are unwilling to agree to an amendment of the indictment.

Rodger N. Bowman:

Your Honor, to be perfectly frank with you, at the time this was tried originally, I had been practicing for some 5 months or 6 months and I was not even aware of the statute that allowed an amendment of the indictment.

I think the record will show, I state to the Court, I did not know whether an indictment could be amended or not at that time.

But since I have had time in doing much research on this case, of course I have found that there is a statute which would have allowed the indictment to be amended.

Warren E. Burger:

I am not suggesting by any means that you should have consented that was a matter for your choice as an advocate.

Perhaps even without knowing the statute to may have made the correct choice.

Rodger N. Bowman:

Thank you.

The particular law involved in this case, there is not any that is directly in point, a complete search of the records, all I say is complete as searches cannot be done because I have been able to do has not rebuild the case that is directly in point with the fact situation in this case.

There are cases which hold that is not double jeopardy to indict a man the second time where the item stolen, we will say is described improperly, such in one case where the serial number of an automobile was misstated in the indictment.

This cases which all that if you indicted for stealing a white horse, you cannot be convicted for stealing a black horse and to be indicted for stealing a black horse then is not double jeopardy.

But each of these cases involved a particular thing stolen, the description of a necessary element of the offense.

In this case, the second indictment, it charges that $70.00 was taken from the person of Johnny Brant(ph).

Rodger N. Bowman:

The property of the RedA (ph) service station exactly the same thing as these are charged in the first indictment.

Mr. Bowman under Tennessee practices, is it necessary to be specific about the deadly weapon?

Rodger N. Bowman:

Your Honor, from winning the cases in Tennessee, I think it would have been sufficient for the indictment to have merely stated, said, robbery accomplished with the use of a deadly weapon.

Period?

Rodger N. Bowman:

Period.

To go a little bit further, they have said it was done with a gun but it was not necessary to specifically describe the weapon used.

This was just a matter of — that was added to make it more particular.

William H. Rehnquist:

In effect, in the ruling of a Trial Court was that since the State had chosen to be particular on the indictment it was stuck with the particular language it had used by granting a new motion to refuse the offer of the gun?

Rodger N. Bowman:

Yes Your Honor.

That was the position.

Of course it was our position at the time that a conviction for robbery which is the only offense under Tennessee law could have still been obtained even if they had not been able to prove the type of weapon or prove that there was a deadly weapon used and of course it is our contention that the acquittal or the original indictment acquitted the defendant of the very crime of robbery, of the very crime of taking $70.00 from the person of Johnny Brant(ph) being the part of the RedA (ph) service station.

Do you think the black horse and white horse case in Tennessee is wrongly decided?

Rodger N. Bowman:

No Your Honor.

I can distinguish.

Well, certainly there is nothing in the Tennessee statute that — in the statutes now I am talking about that makes it an offense to steal a white horse in a quite a separate defense — offense to steal a black horse, is there?

Rodger N. Bowman:

No, Mr. Justice but I think —

That is larceny and even if it is value over a certain amount that is grand larceny, if it is under certain amount it is petty larceny.

Rodger N. Bowman:

Yes.

But now if I was charged with doing that and stealing your automobile and it turned out that it was Mr. Chief Justice’s automobile that I had stolen.

The first indictment charges would be dismissed on that.

I could be indicted on the second one because of the fact that I did steal that particular automobile.

There are two separate offenses committed there.

In this particular situation under the inspection of the Tennessee robbery statute there is only one offense in Tennessee and that is robbery.

Well, there is only one offense I suppose covering larceny, even if grand or petty?

Rodger N. Bowman:

Right Your Honor.

And how about the case, the brass and the bronze rollers.

Rodger N. Bowman:

In the brass and bronze roller case, a mistrial was granted and they were re-indicted after the mistrial.

There was not a directed verdict of acquittal in that particular case.

And I am not satisfied particularly if that case is right.

But this case — it seems strange to people familiar with the Federal present federal practices and procedures in the criminal cases, we are not to this, of the Tennessee practice as it is seems pretty archaic but it is — as I understand the Tennessee law it is simply this, that if as or when, the State chooses to be very specific in its indictment to describe the horses are black horse then if that is a separate offense, that is the only way if these cases can be understood at least by me from a charge that somebody stole a white horse.

Rodger N. Bowman:

Yes Your Honor.

But then under Tennessee practice and procedures, these then are separate offenses because the prosecutors or the grand jury has chosen to make them so.

Rodger N. Bowman:

Yes Your Honor.

Regardless of what the statute may say.

Rodger N. Bowman:

Yes sir, Mr. Justice.

But what I am saying though is the fact that you described a horse a different way, you are describing a particular element of the offense differently and that element of the offense is describing that thing stolen, the larceny committed in the armed robbery statute.

You are not describing a necessary element of the offense differently at anytime because in the Tennessee statute whether a deadly weapon is used or not only goes to the punishment, not to a description of the offense whatsoever.

Well, I do not want to push the matter but surely there is not a different punishment at Tennessee for stealing a black horse than there is from stealing a white horse, is there?

Rodger N. Bowman:

No Your Honor.

(Voice Overlap)

Rodger N. Bowman:

There is not, there would be the same thing but you would have stolen if you would have committed an entirely different offense by stealing the black horse than you would be stealing a white horse —

That is what Tennessee law says.

Rodger N. Bowman:

That is right.

It seems very odd but that is what it says, is it not?

Rodger N. Bowman:

That is right.

And I — of course, it was my interpretation of federal law that you would have the same problem in the — I think it is a Green case where a man was indicted in the Federal Court and charged with stealing an automobile, the serial number was listed and it turned out that the serial number was wrong.

The Federal Courts there held that he could be re-indicted and retried and the double jeopardy provision would not apply.

Thurgood Marshall:

Mr. Bowman, if you would back a minute, you did after the refuse to permit the indictment could be amended.

Rodger N. Bowman:

Yes Your Honor.

I think, it has been a while that I stated, I didn’t think that the indictment could be amended.

I were — at that time I was not aware of a particular statute involved.

Thurgood Marshall:

There is no way for the counsel to agree to amend the indictment that is what you have said.

Rodger N. Bowman:

That is correct Your Honor.

Warren E. Burger:

Mr. Bowman, in Tennessee is it lawful to carry a 22 riffle around, is there any inhibition on it?

Rodger N. Bowman:

There is a statute dealing with deadly weapons and a 22 caliber pistol, caliber pistol would definitely be illegal to carry around.

Warren E. Burger:

That is what I am trying to get at. Is there a difference in the legality of walking down the street with a 22 riffle as against a pistol in your pocket?

Rodger N. Bowman:

There is some case law in Tennessee which holds that it is not illegal to carry a riffle per se but it would be to carry a pistol.

Warren E. Burger:

You would have to have a license to carry the pistol, special permit of some kind?

Rodger N. Bowman:

We have no special permits in Tennessee.

Warren E. Burger:

Then handguns are illegal in Tennessee?

Rodger N. Bowman:

If you came with the intent to go on and the presumption of that is as far as a handgun, if you got it on your possession and loaded that you can with intent to go on, a riffle, the presumption does not arise with — neither does not arise with the shotgun because people go hunting.

Warren E. Burger:

Well, do you think that this is a substantive difference then that one offense charged here was with a gun which is legal to possess and the other one, a pistol which is illegal to posses.

Rodger N. Bowman:

No Your Honor.

I do not because the statute charged with a deadly weapon and of course even under the deadly weapon statute in Tennessee if it can be shown the presumption is if you carry a handgun it is with intent to go on but it can be also with a riffle where it was used for the purpose of going on which is why I did use the weapon to shoot at somebody or to holdup a service station.

It gets stand and in fact.

Thurgood Marshall:

Mr. Bowman (Voice Overlap)

Rodger N. Bowman:

Yes.

Thurgood Marshall:

In Tennessee what is the difficulty in mistrial?

Is there a difference between mistrial and acquittal in Tennessee?

Rodger N. Bowman:

Yes Your Honor.

Thurgood Marshall:

Is there any reason why this could have been declared a mistrial rather than an acquittal?

Rodger N. Bowman:

I think the same questions would have been raised all the way up the line, and Mr. Justice if there had not been an acquittal as it has been now.

Thurgood Marshall:

But it was not discussed, the mistrial point was never discussed as I read the record.

Rodger N. Bowman:

It had never was even mentioned that the proceedings are well on it.

Thurgood Marshall:

Or is there any peculiar rule in Tennessee that makes that necessary?

Rodger N. Bowman:

Mr. Justice, not that I know of.

No, it is possible that there is but I do not know of any.

What would have been the situation if this man had walked in with a 22 caliber pistol at one hand and a 22 caliber riffle in the other hand?

I did have to say that this Court and no other court would allow a prosecution to the stand for armed robbery with a pistol then for prosecution involving robbery with the riffle.

The question of being 2 separate offenses, I do not thing it would arise under those circumstances.

But when you are applying to the facts as we have here that is exactly what is trying to be done.

I am trying t o make They have tried to make two separate offenses by clearly changing the weapon.

Warren E. Burger:

Mr. Bowman you have not mentioned one of the tests in some of the cases and the evaluating double jeopardy and that is whether it is the same evidence is involved.

Rodger N. Bowman:

Yes sir.

At Tennessee as applied over the years, the same offense test and there has been cases in Tennessee as far back as the early 1800s, Hite versus State which made the distinguishment between where a banknote was stolen and payable to one bank, may was indicted on it and acquitted, as it turned out the bank that was payable at the other bank and they re-indicted him and court said this was not double jeopardy.

Well, here again it would be just like if the first time, they had said he had stolen the property of Mr. Chief Justice and the second time he had stolen the property of another one of the justices.

So, the Tennessee says that this is not, those two cases are not the same offense.

Of course it is our contention that the robbery, the basic thing of this, basic element of this crime is the same offense in both cases.

William H. Rehnquist:

Mr. Bowman.

Rodger N. Bowman:

Yes.

William H. Rehnquist:

A moment ago in your argument, you said that you thought the State could have proceeded not withstanding the trial judge’s exclusion of the gun for a simple prosecution for robbery, would that have carried a severe or maximum penalty as if they had been able to introduce evidence of the gun?

Rodger N. Bowman:

No.

Mr. Justice under Tennessee law for armed robbery, you can be given the death sentence for any time less to a minimum of ten years.

For simple robbery and I maybe mistaken as to what punishment is, I believe it is 3 to 10 years.

The punishment would have been affected by not being able to have proven the gun.

This was the big thing to increase the punishment was the purpose in alleging the gun but there would have been nothing that would have kept you from going on improving the simple robbery and the only robbery involved here and that was the robbery of the service station.

Now the test had been applied, have been the same evidence and the same offense test.

And you read the cases over the years and it is really hard in lots of those cases to determine what is being held, but in most of the same offense tests, it is talking about the white and the black horse.

A bank no payable at the Mechanic’s Bank instead of the Merchant’s Bank, a car bearing the wrong serial number as compared to the car having the right serial number.

Brass and bronze roller things and so forth on down the line.

But each of these cases deals with a substantive matter of that indictment, substantive matter of that particular, would it be common law or statutory crime.

Now, when you are talking about these series of cases Mr. Bowman, you were talking about Tennessee cases?

Rodger N. Bowman:

Tennessee cases and Federal cases, Mr. Justice.

Well, because, up until that against Maryland, decided in 1969, Tennessee was not obligated in any way to follow the federal test of double jeopardy, was it?

Rodger N. Bowman:

No Your Honor.

So those do not, they were veterans so far as Tennessee and all goes, so we are here involved about the federal constitutional issue and this became a federal constitutional issue only after Benton against Maryland, is that correct?

Rodger N. Bowman:

Yes.

The Federal Courts have applied and have constitutionally held, as I have held that it is constitutionally proper to apply the same offense test and there has been cases even recently in the various circuits holding that this is a proper test to determine the double jeopardy provisions.

And that is easy enough for the federal system, and we know where federal judges at least are more less familiar with the rules of practice and procedure and indictments.

When we run into this archaic Tennessee system it becomes a little hard to apply particularly when Tennessee seems to say that if a grand jury chooses to be specific in its indictment, then it carves out that offense and that offense only, a dark horse larceny, a black horse larceny and that is a separate offense from the white horse larceny, that is the only thing that those cases could mean, is it not?

Rodger N. Bowman:

I think you are right, Mr. Justice.

So then they are different offenses because the grand jury has chosen to specify the offense makes it as a distinct offense.

Rodger N. Bowman:

That is right.

If they would have said larceny of the horse —

Did you say larceny of the horse of Sam Jones, then black or white would come under the indictment.

Rodger N. Bowman:

That is right but if they said larceny of the horse of Sam Jones and it turned out that to be by marshals because we have a different situation —

We have a different situation.

Rodger N. Bowman:

When you look at the facts in the situation and the various opinions in the particular case then I feel that the — if whatever test you would apply, either be the same evidence or the same offense, you are going to find that this is the same frame in all situations that the robbery was the only crime that was committed under Tennessee law and that applying this into the standards set forth by this Court that this is double jeopardy.

Warren E. Burger:

But to show that it was larceny committed with a dangerous weapon, the evidence is not the same, is it?

Rodger N. Bowman:

It could have been shown as the indictments simply said —

Warren E. Burger:

Well, we are given with the indictment as it was in each of the two indictments.

It is different evidence in the second case as to the nature of the dangerous weapon from what it was and would have been in the first case.

Rodger N. Bowman:

Yes Chief Justice.

It would have been required that a different type of weapon be proven rather than —

Warren E. Burger:

You could not have established the second — the case under the second indictment from which you say of Tennessee law by showing a kind of a weapon and not described in the indictment, could you?

Rodger N. Bowman:

Your question as I understand it has skipped —

Warren E. Burger:

I have forgotten which came first, the pistol or the riffle but —

Rodger N. Bowman:

The pistol was the first indictment and the riffle was the second indictment.

Warren E. Burger:

Well, after the trial on the riffle indictment, could there maybe a case by showing that he used a pistol?

Rodger N. Bowman:

At the riffle indictment could they have made a case showing use of pistol?

I do not think so but I do not know.

Thurgood Marshall:

Is it that one show that that the same riffle was used in both the charges, the exact same riffle?

Rodger N. Bowman:

Pardon Me?

Thurgood Marshall:

Exact same riffle was in both charge?

Rodger N. Bowman:

Yes.

It is a same weapon, both times.

There was not two weapons used in the commission of this crime, was only one.

Thank you.

Warren E. Burger:

Mr. Falk.

Everette H. Falk:

Mr. Chief Justice and may it please the Court.

The central issue of course in this case is whether these two indictments, the first charging robbery accomplished with a pistol and a second charging robbery accomplished with a riffle charges two separate offenses.

If they do, then of course, the defendant or the petitioner here is entitled to his plea of double jeopardy if not, we contend that he is not entitled to his plea of double jeopardy and was properly convicted of robbery with a riffle.

Now, in Tennessee as the questioning of Mr. Bowman has indicated where the indictment describes a particularity, the State is required to prove it with particularity.

And where there is a material variance between the indictment and the proof, the prosecution can be terminated at that point either by a dismissal or by a directed verdict or by a mistrial.

Well, does not the very fact that there was a directed verdict of acquittal under the first indictment show that in Tennessee at least this was a separate offense.

Having indicted him for armed robbery by use of a pistol that the grand jury carved out an offense in Tennessee said, he is not guilty of that offense or else they could not have been a directed verdict of acquittal, could they?

Everette H. Falk:

That is correct Mr. Justice.

That is our position that it is a separate offense and that the second indictment charged a different offense and that the second indictment charging a different offense, it would preclude the petitioner from prevailing on his plea of double jeopardy.

It is our opinion that the Fifth Amendment through the Fourteenth Amendment applicable at Tennessee prohibits successive prosecutions only for the same offense and not necessarily for the same act.

The same offense is the proscription to which the Fifth Amendment applies and incidentally to which the Tennessee double jeopardy constitutional provision also applies.

Thurgood Marshall:

Would you not be in better shape if you had two statutes one for robbery with a riffle and one for robbery with a pistol which you do not have.

Everette H. Falk:

We would be in better shape Mr. Justice.

I do not think that it would necessarily be controlling in this case.

I think that the statute in Tennessee prescribes, if it carves out or describes the offense of robbery, robbery being the forcible taking of property from the person through violence or through putting in fear.

Now the deadly weapon in this case or in any case would be the means by which the person from whom the property is taken was put in fear.

Under the pleading rules in Tennessee, I gather that archaic as they seem to be it would have been sufficient for the indictment to have alleged robbery by use of a deadly weapon to-wit a fire arm, would that have been?

Everette H. Falk:

It would have been permissible and that the State would have been allowed to prove a deadly type of weapon under —

A firearm–

Everette H. Falk:

A firearm, yes sir.

Mr. Justice.

If however the indictment describes a particularity, the type of deadly weapon or a type of firearm, then the State is required to prove that.

Then Tennessee said —

Everette H. Falk:

Then Tennessee —

The State has elected to make that a separate offense otherwise there could not have been a directed verdict of acquittal, could they?

Everette H. Falk:

That is right Mr. Justice.

What is the effect of the directed verdict of acquittal in this case?

Everette H. Falk:

In this case a directed verdict of acquittal in our opinion acquits the petitioner of the crime on the basis of the material variance.

If the issue decided by that directed verdict of acquittal is the issue which was the subject of a material variance to-wit that the petitioner did not rob this person with a pistol.

That is the issue in our opinion.

But the verdict said we find him not guilty of what?

Everette H. Falk:

Of not having —

Not guilty of violating the statute of Tennessee which says robbery with the use of a deadly weapon.

Everette H. Falk:

I believe —

Is that what it says?

Everette H. Falk:

I believe Your Honor Mr. Justice that the directed verdict said that he was not guilty as charged in the indictment.

Well, I asked you the same question and Mr. Bowman the same riffle was used in both cases.

Everette H. Falk:

Oh! Yes Mr. Justice.

We —

The same witness testified?

Everette H. Falk:

The same witness testified in both — Mr. Albright I believe, he was the investigator for the Clarksville Police Department testified in both cases that in the first case —

That does not give you any double jeopardy problem.

Everette H. Falk:

I do not believe it does.

We do not disagree with the fact that the petitioner was placed in jeopardy of his first trial, we really would have to admit that that he was in jeopardy in his first trial and if this second offense is the same as the first offense then —

Thurgood Marshall:

He was put in jeopardy of armed robbery with a rifle, I submit because the State introduced the riffle in the crime.

Everette H. Falk:

Oh! The riffle was not actually introduced.

The testimony of Mr. Albright, the investigator commenced and the question was asked Mr. Albright, what type of weapon were you looking for and he said that he was looking for a 22 caliber riffle.

Thurgood Marshall:

Which 22 caliber riffle was in the courtroom in view of the jury so say at this record here?

Warren E. Burger:

Did Mr. Bowman object to the introduction of that riffle?

Thurgood Marshall:

That is right.

Everette H. Falk:

Well, I do not believe the riffle was actually introduced.

Warren E. Burger:

But did he —

Everette H. Falk:

The testimony was adduced but the rifle itself was never introduced in evidence at the first trial.

Thurgood Marshall:

Well, was it not in the courtroom.

Did it not Mr. Bowman make a motion to get it out in view of the jury, I am reading right here, he made —

Everette H. Falk:

Yes it was, apparently was Mr. Justice.

Thurgood Marshall:

That is why it was in the courtroom.

So the State through the Attorney General proceeded to try this man for a robbery by use of a riffle, is that correct?

Everette H. Falk:

They have tried to do that Mr. Justice but they were not successful —

Thurgood Marshall:

But he did try it, did he not?

He tried it.

He tried to convict him of using that riffle.

Everette H. Falk:

Yes Mr. Justice, he did.

Thurgood Marshall:

And what did he do in the second trial?

Everette H. Falk:

He tried and did convict him of robbery with the use of the riffle.

Thurgood Marshall:

With the riffle.

And you do not have any double jeopardy problem.

Everette H. Falk:

I do not believe so, Mr. Justice and under on grounds that although the State tried to prove that he was in the first trial that he was — had committed the robbery with the riffle, they did not do that.

Warren E. Burger:

Oh!

What you are saying is that Tennessee follows the “strict” variance rule, do you to happen to know how many States fall into that category?

Everette H. Falk:

I am not been able to determine the exact numbers of States.

Everette H. Falk:

I believe that the majority rule among the States is toward a more lenient determination of whether a variance is material.

More leeway is given in most States I would say than in determining whether a variance is material and in Tennessee.

However, in Tennessee I do not know whether Tennessee is the only State or how many States do follow this rather “strict” material variance rule that Tennessee follows.

May I ask Mr. Falk, I gather that the State concedes that we decide the issue before us based on federal double jeopardy standards?

Everette H. Falk:

I believe that federal jeopardy — double jeopardy standards are applicable to the State of Tennessee and —

Well now, am I right as to dates, I think we decided Benton which subjected to States for federal jeopardy standards on June 25, 1969.

As I understand it, the second trial in the conviction was on March 19, 1969, three months earlier.

Everette H. Falk:

Yes, that is true.

Did the States still concede that the federal standards apply?

Everette H. Falk:

Well, the federal standards were not applicable at the trial of Benton versus Maryland had not been decided at the trial of the petitioner but I believe that this Court can use the federal standards to —

But Benton against Maryland, it is the principle of Benton against Maryland were made fully retroactive.

Everette H. Falk:

Yes.

In at least two different cases that was made explicit, Pearce against North Carolina and the —

Everette H. Falk:

Yes.

That is my understanding Mr. Justice, that it is retroactive and it is our opinion that federal double jeopardy standards are applicable —

The question here is not — that federal double jeopardy — federal constitutional guarantee against double jeopardy is applicable.

The problem in here is the impact of that standard with the — what I have referred to as the archaic pleading rules of Tennessee and that is what —

Everette H. Falk:

That seems to be the problem, yes.

We contend that, we would contend that although archaic that the Tennessee rule, the strict rule with respect to material variance actually protects the accuse in several respects, first, it requires a State to prove the allegations contained in the indictment that are not surplusage.

It has the advantage of identifying the crime with a high degree of particularity.

In that respect it would minimize the chance that an accused would receive an unjust conviction.

We would also state that it reduces the chance of error in the Trial Court of determining whether a variance is material and that it would require the State to prove the charges as described in the indictment.

So we contend that while it may not be in the mainstream of the remainder of the States of the union that it does has these three or four advantages of protecting certain rights that an accused may have.

Mr. Falk, are you familiar with the Court’s decision last term in the Jorn?

Everette H. Falk:

Yes sir, I am.

You did not cite it in your brief and I think your opponent did not cite it, do you feel it has no bearing in here at all?

Everette H. Falk:

I think it has a bearing.

I believe it would have more of a bearing and a mistrial had been declared in this case whether — to determine whether or not the trial judge abused and used discretion in declaring a mistrial.

If a mistrial had been declared in this case.

William H. Rehnquist:

Well, is there any practical difference as to result between directing a verdict of acquittal at this stage of the trial and having a mistrial under Tennessee law?

Everette H. Falk:

Under Tennessee law, no.

Under federal law, I would say that the only difference would be that by directing a verdict of acquittal it would perhaps raise the issue of collateral estoppel, the second trial whether or not the same issues were decided in the first trial.

A mistrial would not raise the issue of collateral estoppel but the directed verdict of acquittal would and this is the only difference that I would see.

William H. Rehnquist:

But if the practical consequences are the same, it would be unusual if Federal Law would provide for a different outcome and one in and in the other, would it not?

Everette H. Falk:

Yes it would.

Well, except clearly after the mistrial there and might and might not be problem under Jorn but with an acquittal, it is certainly very clear that he could never again be tried for the armed robbery with a use of a deadly weapon to-wit a firearm, to-wit a pistol, is that not clear?

Everette H. Falk:

That is clear Mr. Justice.

If that was a separate offense and the acquittal absolutely barred a subsequent prosecution for that offense.

That mistrial might be open to such question.

Everette H. Falk:

I think a mistrial might have raised the same issue —

Or might have, yes.

Everette H. Falk:

Because as we concede he was in jeopardy at the first trial.

Under an indictment, charging him with armed robbery by use of the 22 caliber pistol, is that not right?

Everette H. Falk:

Yes Your Honor.

I believe he is in jeopardy of it.

Everette H. Falk:

It was in jeopardy of that.

And having been acquitted to that he could never again be brought to trial for that.

Everette H. Falk:

That is true.

That is clear, is it not?

Everette H. Falk:

I think that is perfectly clear.

No trial probably also true under Jorn but depending upon the — what the genesis of the mistrial was, is that not what Jorn holds?

Everette H. Falk:

Yes that is.

That is what Jorn holds and I think that the possibility could have contended double jeopardy even though a mistrial had been — even if a mistrial had been declared under the authority of Jorn.

So in summary, we would contend that the variance was material under Tennessee practice, it was material under even under the Tennessee’s interpretation of the robbery statute because it went to the heart of the means by which the property was taken from the individual by violence and putting in fear.

Means used to put the victim in fear was the deadly weapon, in the first indictment, it was described as a pistol and the second indictment it was described as a 22 caliber riffle.

We contend that this is a material averment going to right to the heart of the means by which the person or the victim was put in fear.

And therefore as a material allegation and material environment, a variance between the two would be a material variance and the same evidence would not support both indictments.

Of course that would be as I have suggested earlier ridiculous argument to make in a federal system where you can amend an indictment by — practically way up to the time of verdict to conform to the proof.

What you are saying that if Tennessee has held that these are separate offenses and that the — and that this Court is not entitled under the Double Jeopardy Clause of the federal constitution to require Tennessee to amend its law as to pleading and procedure in its own State.

Everette H. Falk:

That is a substance of our position.

Right.

William H. Rehnquist:

Mr. Falk, does Tennessee criminal practice recognize a Bill of Particulars — can a defendant demand the Bill of Particulars?

Everette H. Falk:

Not as such, Mr. Justice.

I do not know of any provision in Tennessee law for a Bill of Particular as such.

As Mr. Bowman stated there is a statute that does permit an amendment of an indictment upon the consent of the counsel involved, the prosecuting attorney and the defense counsel.

In this case according to Mr. Bowman who was the defense counsel at the trial level, this was not agreed to, he stated, I believe that he will not agree to this.

So that statute although available was not utilized in this case.

William H. Rehnquist:

Well, suppose in the indictment alleges are armed robbery with a deadly weapon without specifying the deadly weapon.

The defendant does not have any pretrial mechanism available to demand from the State what deadly weapon are you charging that I use?

Everette H. Falk:

There is not procedure that I know of for the defendant to utilize to obtain from the State and to require the State to describe what particularity the deadly weapon used.

Would that be a sufficient indictment as a matter of Tennessee law, just a deadly weapon?

Everette H. Falk:

I believe it would Mr. Justice that it would be a valid indictment in Tennessee just to allege that the person was put in fear through the use of a deadly weapon.

Then he could show it was a crowbar or a dagger or a kitchen knife or a machinegun or a shotgun or a pistol or a handgun?

Everette H. Falk:

There is a substantial body of law in Tennessee as to what constitutes a deadly weapon.

Well, I submit there is, but to all of those are deadly weapon.

Everette H. Falk:

Well, I do not know about a crowbar.

Well, anything else but —

Everette H. Falk:

Firearms are been held to be deadly weapons, it gets more to the nature of the way the weapon is used when it gets to the weapons that are not traditionally —

Is there anything — I guess, perhaps I am repeating my Brother Rehnquist’s question, what I asked is there any way that a defendant in Tennessee charged under an indictment with robbery with a use of a deadly can get anything from the prosecution as to what kind of a deadly weapon he is talking about?

Everette H. Falk:

In Tennessee, I do not believe there is a specific procedure whereby he can get that particular information.

We do have a preliminary hearing procedure in Tennessee now which is required recently by a statute.

I do not know of any way that a defendant could require the State to allege with particularity of the deadly weapon used.

Why is it if that would be a sufficient indictment?

Why is it the facts of the defendant seem to be so very, very detailed and specific, explicit, black horses and white horses, brass rollers and bronze rollers, pistols and riffles.

Why is it done as the other would be sufficient?

Everette H. Falk:

Well this — I do no know why it is done.

I think it is involved —

Can it have it?

Everette H. Falk:

It is a long line of case precedent beginning back in the early 1800’s requiring whether the State alleges with particularity to prove a particularity.

Yes, but then why does the State allege it if it then is locked in to the duty of proving it, if it does not have to allege it.

Everette H. Falk:

Well, I do not know.

I think that it varies throughout the State between grand juries as to how these things are alleged.

It is obvious in this case, I think that it was alleged with two higher degree of particularity.

I do not know why it could occur that it would be alleged but not quite enough by a degree of particularity.

I think in my opinion that a deadly weapon allegation would be sufficient.

I have not seen such indictment returned in Tennessee.

I have not seen a lot of them but I have not seen one that was returned with this lower degree of particularity.

Most of them alleged —

At least the firearms.

Everette H. Falk:

Deadly weapons to which a gun, I think a gun is the common description of the deadly weapon where a gun is used.

Thurgood Marshall:

Mr. Falk, what significance is the finding of the second jury that they say upon their oath that they find the defendant’s name in the guilty of armed robbery, but they did not use the word riffle or pistol either way.

Everette H. Falk:

I do not think that —

Thurgood Marshall:

Is it not all one crime, is that not the crime that they were charged within both cases, armed robbery.

Everette H. Falk:

Well, it is our opinion that there were — well, first of all there is not a crime in Tennessee such as armed robbery as such.

It is robbery and if a deadly weapon is used then the statute provides for a much greater punishment all the way up to in including the death penalty.

Thurgood Marshall:

But they were found guilty of armed robbery.

It is what the jury’s verdict was.

Everette H. Falk:

Oh! That is the jury’s verdict I think stating armed robbery means that they were found guilty of robbery accomplished by the use of a deadly weapon.

Thurgood Marshall:

Oh, 22 riffle.

You did not go that far, did you not?

In your answer you did not go that far.

Everette H. Falk:

Well, they did not say that in their verdict.

That is true.

Thurgood Marshall:

So if they have been tried with the other one, they were brought in the same verdict.

Everette H. Falk:

That that would have been the same verdict, armed robbery or robbery accomplished by the deadly weapon.

Thurgood Marshall:

They said that was not a problem because —

Everette H. Falk:

It does not give me any problems, Mr. Justice because I do not believe that the verdict is required to be that specific.

I think that since the — what is alleged in the indictment is the means of putting the person in fear, the means of obtaining his property by force.

This is the essential ingredient that was alleged in the indictment.

Thurgood Marshall:

So, they are both the same?

Thurgood Marshall:

Was there any difference between a 32 and a 45 pistol?

Everette H. Falk:

There would be a difference, I do not know whether that difference would be viewed as material or not.

There is a much greater difference between a pistol and a riffle.

Thurgood Marshall:

Well, if he was found not guilty of robbery with a 22, could you indict him a crime for armed robbery with a 45?

Everette H. Falk:

I believe we could Mr. Justice.

They obviously are not the same type of weapon.

Thurgood Marshall:

And used the same pistol as evidence?

They used the same riffle for both of these cases.

Everette H. Falk:

Well, I would have to disagree with Mr. Justice on that.

I think that the riffle was never introduced in evidence at the first trial regardless of whether it was in the courtroom or not.

Well, the police chief or whatever the title was, testified as to a riffle and I am asking you even though it does not appear in the record, was that the same riffle that was used in the second trial?

Everette H. Falk:

It was the same riffle.

It was, I will have to — from my reading of the record it was the same riffle.

Thank you.

Warren E. Burger:

Thank you Mr. Falk.

Mr. Bowman you have a few minutes left, do you anything further?

Rodger N. Bowman:

I just like to add that an approval of this practice would allow an Attorney General from the State of Tennessee to indict a man for armed robbery knowing that he was alleging the wrong type of weapon.

Try and have a verdict of not guilty to return, again indict him, again alleging the wrong type of weapon, again tried and so forth on down the line.

The Attorney General stated in the first trial of this and it is in the record, I made a mistake in the indictment.

Now, an approval would allow him to make a mistake and trial a man over and over and over again until he finally decided to allege in the indictment or have the grand jury return an indictment with the right type of weapon.

Warren E. Burger:

Thank you Mr. Bowman, Thank you Mr. Falk.

The case is submitted.