Duncan v. 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

Everette H. Falk -
Everett H. Falk - for respondent
Rodger N. Bowman - for petitioner

Facts of the case


Media for Duncan v. Tennessee

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.