United States of America Ex Rel. Donald Somerville v. State of Illinois , 429 F.2d 1335 ( 1970 )

CASTLE, Senior Circuit Judge.

Donald Somerville, petitioner-appellant, prosecutes this appeal from the District Court’s dismissal of his petition for habeas corpus which asserted, in substance, that he was being held in custody unlawfully pursuant to a sentence imposed following his state-court conviction in a trial which subjected him to double jeopardy in violation of the Fifth Amendment. The District Court dismissed the petition for failure to state a claim upon which relief could be granted. We affirm.

In November 1965, following a trial in the Circuit Court of Cook County, Illinois, petitioner was convicted by a jury under a November 3, 1965, indictment charging theft¹ and was sentenced to the penitentiary for not less than two nor more than ten years. Upon his arraignment on this indictment the petitioner had filed a motion to dismiss the indictment on the grounds that he had previously been indicted on March 19, 1964, for the same offense, a jury impaneled and sworn on November 1, 1965, to try the issues, and on November 2, 1965, a motion of the State to nolle prosse was sustained over the objections of petitioner.- The March 19, 1964, indictment did not allege intent to permanently deprive the owner of the use or benefit of the property,² and the State’s motion for a mistrial and to nolle prosse was grounded on the assertion that this indictment did not allege an offense and was therefore void. Petitioner’s motion to dismiss the second indictment and for discharge was denied. His trial proceeded and resulted in the conviction assailed in the District Court habeas corpus proceeding on the basis of double jeopardy.³

At the outset we recognize that petitioner’s claim of double jeopardy is to be tested by the application of federal standards. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; Ashe v. Swenson, 397 U.S, 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (No. 57, October Term, 1969, April 6, 1970); Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (No. 24, October Term, 1969, April 6, 1970).⁴

Petitioner emphasizes that he did not attack the validity of the earlier March 19, 1964, indictment nor consent to its dismissal but, on the contrary, objected to the prosecutor’s motion for a mistrial and to nolle prosse. He contends that he thus avoided any bar to his subsequent assertion of double jeopardy which might be based on any doctrine of consent, waiver or estoppel. And, petitioner argues that Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 stands for the proposition that once the jury had been selected and sworn to try him on the March 19, 1964, indictment jeopardy attached so as to bar the prosecution under the subsequent indictment, and that United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 compels the conclusion that this is so notwithstanding the invalidity of the earlier indictment.

In Downum, on the morning the case was called for trial both sides announced ready. A jury was selected, sworn, and instructed to return at 2 p. m. When it returned the prosecution asked that the jury be discharged because its key witness on two counts of the indictment was not present — -a fact discovered by the prosecutor only during the noon recess. The witness had not been served with a summons, and no other arrangements had been made to assure his presence. The jury was discharged. In sustaining the claim of double jeopardy as to a retrial commenced two days later, the Supreme Court, while recognizing the valuable right of the defendant to proceed to trial before the jury he has participated in selecting, cautioned that at times this “valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him may be subordinated to the public interest — when there is an imperious necessity to do so.” In this connection reference was made to Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (a “hung jury”); Wade v. Hunter, 336 U.S! 684, 69 S.Ct. 834, 93 L.Ed. 974 (tactical problems confronting an army in the field justifying withdrawal of a court-martial proceeding and commencement of another one on a later date); and Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (likely existence of juror bias). Thus Downum explicitly teaches that it does not establish an absolute right in a defendant to have his trial completed by the jury selected and sworn for that purpose which in all circumstances bars discharge of that jury without his consent and a subsequent trial for the same offense.

In United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300, Ball was in-dieted, together with two other men, for the murder of one William T. Box. He was acquitted and his codefendants were convicted. They appealed and won a reversal on the ground that the indictment erroneously failed to aver the time or place of Box’s death. All three defendants were retried, and this time Ball was convicted. The Supreme Court sustained his double jeopardy claim, notwithstanding the invalidity of the original indictment on which he was acquitted. The precise holding as to Ball is succinctly stated (163 U.S. 662, 671, 16 S.Ct. 1192, 1195) as follows:

“As to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the constitution. However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense.”

The “acquittal” appears to have been the operative factor dictating the result in Ball, not the mere circumstance that a jury had been impaneled and sworn. This is further evidenced by the observation made in Ball (p. 669, 16 S.Ct. p. 1194) that:

“After the full consideration which the importance of the question demands * * * and, the question being now for the first time presented to this court, we are unable to resist the conclusion that a general verdict of acquittal upon the issue of not guilty to an indictment undertaking to charge murder, and not objected to before the verdict as insufficient in that respect, is a bar to a second indictment for the same killing.”

And, it was the “acquittal” which was. relied upon in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, in support of the holding that Benton was “totally indistinguishable” from Ball. In reference to Ball it is said (395 U.S. 784, 797, 89 S.Ct. 2056, 2064), “[t]he Court refused to allow, the Government to allege its own error to deprive the defendant [Ball] of the benefit of an acquittal by a jury”, after which the Court went on to say:

“This case is totally indistinguishable. Petitioner was acquitted of larceny! He has, under Green [Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199] a valid double jeopardy plea which he cannot be forced to waive. Yet Maryland wants the earlier acquittal set aside, over petitioner’s objections, because of a defect in the indictment. This it cannot do. Petitioner’s larceny conviction cannot stand.”

We perceive no proper basis for isolating the impanelling and swearing of the jury as constituting the conceptual charisma which at that point, and notwithstanding invalidity of the indictment, always serves to establish that jeopardy which, absent the defendant’s consent, bars a subsequent trial for the same offense. We believe our conclusion in this respect is reinforced by the admonition in United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448, that:

“While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle [that part of the holding in United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300, which permitted retrial of the two defendants who had obtained reversal of their convictions because of invalidity of the indictment] are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interest. The underlying purpose of permitting retrial is as much furthered by application of the rule to this case as it has been in cases previously decided.”

In the instant appeal petitioner’s conviction, unlike Ball’s did not follow a previous acquittal of the same offense, and we are of the opinion that the rationale of the pertinent and governing decisions do not warrant a conclusion that the mere impanelling and swearing of the jury under the invalid indictment precluded discharge of that jury except under a bar of double jeopardy which put him irrevocably beyond the reach of further prosecution for the offense under a valid indictment.

The judgment order of the District Court dismissing the petitioner’s habeas corpus action is affirmed.

Affirmed.

1 . Knowingly obtaining unauthorized control over stolen property etc. as defined by Ill.Rev.Stat.1963, ch. 38, § 16.1(d).

2 . Intent to so deprive the owner of the property is an essential' element of the statutory offense sought to be charged, and its omission invalidated the indictment. People v. Somerville, 88 Ill.App. 2d 212, 232 N.E.2d 115; People v. Edge, 406 111. 490, 493, 94 N.E.2d 359; People v. Harris, 394 Ill. 325, 68 N.E.2d 728.

3 . Petitioner’s conviction was earlier affirmed on appeal which rejected his claim of double jeopardy. People v. Somerville, 88 Ill.App.2d 232, 231 N.E.2d 701, leave to appeal denied 37 Ill.2d 627, cert. den. 393 U.S. 823, 89 S.Ct. 81, 21 L.Ed. 2d 94.

4 . The State does not question the retro-activity of Benton as applied to the circumstances of the instant case. This appears to be in accord with Ashe, supra, 90 S.Ct. at 1191, n. 1, although the scope of Benton’s retroactivity has not been resolved. See Waller, supra, 90 S.Ct. at 1186, n. 2.