Benton v. Maryland. 349, 354, 97 L.Ed. He challenged the constitutionality of both convictions, but this Court affirmed the lower court's judgment after considering and rejecting only one of his challenges. 1272 (1964). Because he decided to appeal his burglary conviction, he is forced to suffer retrial on the larceny count as well. Id., at 344. Street v. New York, 394 U.S. 576, 579—580, n. 3, 89 S.Ct. 676, 697, 3 L.Ed.2d 684 (1959) (Black, J., dissenting). 897 (1955). In Schowgurow the Maryland Court of Appeals struck down a section of the state constitution which required jurors to swear their belief in the existence of God. Petitioner was given the option either of accepting the result of his trial or of demanding reindictment and retrial. 722, 99 Eng. Applying the subjective case-by-case approach (known as selective incorporation), the Court upheld Palko's conviction on the basis that the double jeopardy appeal was not "essential to a fundamental scheme of ordered liberty." This case is totally indistinguishable. Although this possibility may well be a remote one, it is enough to give this case an adversary cast and make it justiciable. Hence, petitioner's acquittal of larceny at his first trial may have rested solely upon that jury's unique view of the law concerning that offense, and cannot be taken as having necessarily 'determined' any particular question of fact. Quoting from Ohio ex rel. Id., at 198. Thus, at this time, the Bill of Rights was not binding on state and local government. Md.Const., Art. 1920, 1922, 18 L.Ed.2d 1019 (1967). 121, 50 L.Ed. 275, 98 Eng.Rep. Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. We do not think that this is the kind of determination we should make unaided by prior consideration by the state courts.18 Accordinl y, we think it 'just under the circumstances,' 28 U.S.C. Of course, if the error infected both counts upon which petitioner was convicted, there would be no concurrent sentence problem at all. John Dalmer BENTON, Petitioner,v.State of MARYLAND. The Court itself notes that only a 'few States' would allow petitioner's larceny conviction to be used against him for purposes of sentencing as a habitual offender, and concedes that 'this possibility may well be a remote one.' The Maryland Supreme Court affirmed, following the U.S. Supreme Court's Palko decision, which held that the double-jeopardy clause did … Accordingly, 1 do not think that the reasoning in Trono or the apparent holding in Brantley, insofar as they would require affirmance of petitioner's larceny conviction, can any longer be regarded as good law. Drawing upon some English cases and some dicta from Lord Mansfield,4 the Court in Claassen v. United States, 142 U.S. 140, 146, 12 S.Ct. Malloy v. Hogan, 378 U.S. 1, 10—11, 84 S.Ct. However, the State argues that the burglary and larceny counts were originally contained in a single indictment; that upon petitioner's appeal the indictment was declared totally void and the trial court found to have lacked jurisdiction; and that the State could then proceed as if there had never been a previous indictment or trial. The rationale for allowing the State to appeal an acquittal has been that the State, like the accused, is entitled to assure itself of a trial 'free from the corrosio of substantial legal error' which might have produced an adverse verdict. 676, 695—697, 3 L.Ed.2d 684 (1959) (Black, J., dissenting). Three decades later, the Court in Benton v. Maryland reached the opposite result and overruled Palko v. Connecticut. Today Palko becomes another casualty in the so far unchecked march toward 'incorporating' much, if not all, of the Federal Bill of Rights into the Due Process Clause. However, I have no hesitation in stating that it would be a denial of due process at least for a State to retry one previously acquitted following an errorless trial. Trono was the only federal decision cited by the State of Georgia in its brief in Brantley. Mr. Justice Stewart was not a member of the Court of the time Green was decided. United States Supreme Court 395 U.S. 784 (1969) Facts. 161 (1916). This reasoning baffles me. The unreviewed count is often one which, but for the concurrent sentence rule, the prisoner would have a right to challenge, either directly or on collateral attack. 1889, 20 L.Ed.2d 917 (1968), we held that a criminal case did not become moot upon the expiration of the sentence imposed. While I agree with the Court's extension of the prohibition against double jeopardy to the States, and with the Court's conclusion that the concurrent sentence rule constitutes no jurisdictional bar, additional comment on the wisdom and effects of applying a concurrent sentence rule seems appropriate. 1964, Malloy v. Hogan andEscobedo v. Illinois: Right against self-incrimination and forced confessions from Article V. 1966, Miranda v. Arizona: Right to counsel and to remain silent from Article V. 1969, Benton v. Maryland: Right against double jeopardy from Article V. 2010, McDonald v. Chicago: Right to bear arms from Article II. Peter L. Strauss, Washington, D.C., for the United States, as amicus curiae, at the invitation of the Court. Because of our disposition of this case, we need not reach this question. Like the right to trial by jury, it is clearly 'fundamental to the American scheme of jut ice.' See Part V, infra. at 1375, 1387. 481, 21 L.Ed.2d 460 (1968), limited to the following additional question not included in the original writ: 'Does the 'concurrent sentence doctrines,' enunciated in Hirabayashi v. United States, 320 U.S. 81, 105, 63 S.Ct. Benton v. Maryland, 395 U.S. 784 (1969), is a Supreme Court of the United States decision concerning double jeopardy. 21. In doing so, Benton expressly overruled Palko v. Connecticut. See Benton v. Copinger, 291 F.Supp. 392 U.S., at 56—57, 88 S.Ct. Moreover, the status of petitioner's burglary conviction and the eventual length of his sentence are both still in some doubt.10 Should any attack on the burglary conviction be successful, or should the length of the burglary sentence be reduced to less than five years, petitioner would then clearly have a right to have his larceny conviction reviewed. '(A)lthough the indictment was fatally defective, yet, if the court had jurisdiction of the cause and of the party, its judgment is not void, but only voidable by writ of error * * *,' and the Government could not have the acquittal set aside over the defendant's objections. Thus, it would be difficult to imagine a case in which a 'concurrent' conviction would be likely to entail fewer adverse consequences. Francis B. Burch, Baltimore, Md., for respondent. It follows from what has been said in this section that there can be no estoppel effect in a collateral proceeding, such as petitioner's second trial for burglary, and that petitioner's taint argument must fail.6, Since petitioner's second burglary conviction was not tainted by his simultaneous trial for larceny, it is necessary to consider whether the concurrent sentence doctrine is inapplicable for the other possible reason: that petitioner foreseeably will suffer significant adverse consequences on account of his larceny conviction.7, No such consequences can reasonably be predicted. 1489, 1497, 12 L.Ed.2d 653 (1964) (dissenting); Pointer v. Texas, 380 U.S. 400, 408, 85 S.Ct. At the outset of this case we are confronted with a jurisdictional problem. In Benton v. See Memorandum for the United States as Amicus Curiae 20 23. Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting. 195 (1877).5 The Maryland Constitution provides: 'In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.' Barenblatt v. United States, 360 U.S. 109, 115, 79 S.Ct. Nor did the State in the present case have the sorts of interests which have been held to justify retrial for the same offense after a conviction has been reversed on appeal by the accused and in the more unusual case when an acquittal has been set aside following an appeal by the State.17 When the accused has obtained a reversal on appeal, the societal interest in convicting the guilty has been deemed too weighty to permit every such accused to be 'granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.' '(2) If so, was the petitioner 'twice put in jeopardy' in this case?' This underlying notion has from the very beginning been part of our constitutional tradition. The crucial issue, therefore, is what legitimate interest had the State in compelling petitioner to jeopardize his larceny acquittal as a condition of appealing his burglary conviction? Compare Meade v. State, 198 Md. One of the bedrock rules that has governed, and should continue to govern, the adjudicative processes of this Court is that the decision of constitutional questions in the disposition of cases should be avoided whenever fairly possible. The 'waiver' doctrine was more fully articulated in Trono v. United States, 199 U.S. 521, 26 S.Ct. After consideration of all the questions before us, we find no bar to our decision of the double jeopardy issue. The 'double jeopardy' concept has been an established part of the English common law since at least 1700, and was contained in the constitutions or common law of many American jurisdictions prior to 1787. Benton v. Maryland, supra note 6 at 794; Malloy v. Hogan, 378 U.S.1, 10-11 (1964). 753 (10 9); see Ashwander v. TVA, 297 U.S. 288, 345, 56 S.Ct. Shortly after his notice of appeal was filed in the Maryland Court on Appeals, that court handed down its decision in the case of Schowgurow v. State, 240 Md. Benton was accused of the burglary and larceny by the ruling of Maryland court, but his guilt was only confirmed for first crime by the jury. Petitioner objected to retrial on the larceny count, arguing that because the first jury had found him not guilty of larceny, retrial would violate the constitutional prohibition against subjecting persons to double jeopardy for the same offense. 141 (D.C.Md.1968), and an appeal brought by the State is presently pending in the United States Court of Appeals for the Fourth Circuit. 14, 53 L.Ed. Since then, as a result of selective incorporation, almost all criminal process guarantees are applicable to the states. The answer to these questions is crucial, for it is well settled that federal courts may act only in the context of a justiciable case or controversy. In the interest of strict accuracy, it should be pointed out that Mr. Justice STEWART cannot and does not fully join in the above sentence of this opinion. The decision approved a 10-years sentence in prison. companion cases of Bartkus v. Illinois' and Abbate v. United States' were handed down. As has been noted, it appears that the State would willingly have been petitioner serve out the burglary sentence imposed in consequence of that trial. In subsequent appeals from state courts, the Court continued to apply this lesser Palko standard. New York: Aspen Law and Business, 2002. See J. Sigler, Double Jeopardy 1—37 (1969); Bartkus v. Illinois, 359 U.S. 121, 151—155, 79 S.Ct. The State Court established that he was “innocent of larceny” (Benton v. Benton v. Maryland, 395 U.S. 784 (1969) Background. Id., at 462, 62 S.Ct., at 1256. In 2003 in Lawrence v. Texas, the Supreme Court struck down a Texas law against homosexual relationships, stating that the right was a human freedom. 1083 (1775); Rex v. Benfield, 2 Burr. This Court sustained his double jeopardy claim, notwithstanding the technical invalidity of the indictment upon which he was first tried. Insofar as it is inconsistent with this holding, Palko v. Connecticut is overruled. This is the issue the Supreme Court dealt with in Benton v. Maryland ... jeopardy rights of the Fifth Amendment were not one of the rights extended through the incorporation doctrine. This may well indicate that the State has some interest in keeping the larceny conviction alive;9 if, as Maryland argues here, the larceny conviction is of no importance to either party, one wonders why the state courts found it necessary to pass on it. Counsel for the Government estimated during oral argument that the concurrent sentence doctrine is employed in the disposition of about 10% of all federal criminal appeals. Prior to the adoption of the Fourteenth Amendment, the Supreme Court held that the specific guarantees of the Bill of Rights, the first eight amendments to the Constitution, applied only to the federal government (Barron v. Mayor of City of Baltimore [1833]). ... more particularly in the Duncan case I undertook to show that the 'selective incorporation' doctrine finds no support either in history or in reason.12 Under the pressures of the ... See Benton v. Copinger, 291 F.Supp. Under Palko the Court made a record-specific evaluation in order to determine whether deprivation of the right in issue violated the defendant’s right to due process. Bullington v. Missouri, 451 U.S. 430 (1981), North Carolina v. Pearce, 395 U.S. 711 (1969), Stem Cell Research/Research using Fetal Tissue, Weeks v. United States, 232 U.S. 383 (1914). By the time Benton was decided, the Court’s approach to the incorporation issue had changed. Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. Larceny is a lesser offense than burglary. However, as indicated at the outset, I felt impelled to continue with some observations respecting what can only be regarded as a complete overruling of one of this Court's truly great decisions, and with an expression of my views as to how petitioner's claim respecting his retrial for larceny should fare under the traditional due process approach. 1889, at 1899. He had prior legal proceedings against him for juvenile delinquency and statutory rape. See ante, at 792. Hetenyi v. Wilkins, 348 F.2d 844, 866 (C.A.2d Cir. 141 (1968). 1774, and subsequent cases, have continuing validity in light of such decisions as Ginsberg v. New York, 390 U.S. 629, 633, n. 2 (88 S.Ct. 108, 185 A.2d 909 (1962). LANDMARK DECISIONS OF THE U.S. SUPREME COURT. For more detailed analyses of these interests, see generally Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. It may be that in certain circumstances a federal appellate court, as a matter of discretion, might decide (as in Hirabayashi) that it is 'unnecessary' to consider all the allegations made by a particular party.7 The concurrent sentence rule may have some continuing validity as a rule of judicial convenience. Where a man has been convicted on several counts and sentenced concurrently upon each, and where judicial review of one count sustains its validity, the need for review of the other counts is not a pressing one since, regardless of the outcome, the prisoner will remain in jail for the same length of time under the count upheld. Because the grand and petit juries had been unconstitutionally selected under a section of the state constitution that de-manded jurors to swear their belief in the existence of God, the Maryland Court of The concurrent sentence doctrine has been widely, if somewhat haphazardly, applied in this Court's decisions. 1889, 20 L.Ed.2d 917)?'. John Dalmer BENTON, Petitioner, v. State of MARYLAND. The 'concurrent sentence dot rine' took root in this country quite early, although its earliest manifestations occurred in slightly different contexts. Recently, however, this Court has 'increasingly looked to the specific guarantees of the (Bill of Rights) to determine whether a state criminal trial was conducted with due process of law.' It’s a constitutional law concept that refers to the way that selected provisions of the U.S. Bill of Rights have been applied to the states through the equal protection clause of the Fourteenth (14th) Amendment. Burglary in Maryland consists of breaking and entering any dwelling house in the nighttime with intent to steal, take, or carry away the personal goods of another. See Yates v. United States, 355 U.S. 66, 75 76, 78 S.Ct. 2nd ed. In the present case, the State did not appeal, and the defect in the composition of the grand jury could not have affected petitioner's subsequent acquittal at trial. Ante, at 790-791. Whatever the outcome of that appeal, I consider that the probability of petitioner's burglary sentence being reduced below five years, so as to make the concurrent sentence doctrine inoperative, is manifestly negligible. In that case the defendant had been found guilty of two different offenses and had received concurrent three-month sentences. 1595 (1942), the case which held that a criminal defendant's right to counsel was to be determined by deciding in each case whether the denial of that right was 'shocking to the universal sense of justice.' 988, 995, 18 L.Ed.2d 1 (1967) (concurring in result); and Duncan v. Louisiana, supra, at 171 88 S.Ct. On the merits, we hold that the Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment, and we reverse petitioner's conviction for larceny. The fundamental nature of the guarantee against double jeopardy can hardly be doubted. 1260, 1272—1273 (1968). A federal district court ordered the State to resentence petitioner, Benton v. Copinger, 291 F.Supp. 169, 170, 35 L.Ed. ... Should a tough gun-control law be adopted by a state or local government and a challenge to it be made a test of incorporation might be presented to the Court in the future.) Rotunda, Ronald D., and John E. Nowak. Certainly, this Court has never so held.' 754, 756, 13 L.Ed.2d 658 (1965). Accordingly, I would apply the concurrent sentence rule and decline to review petitioner's larceny conviction. They appealed and won a reversal on the ground that the indictment erroneously failed to aver the time or place of Box's death. Since the conviction on the second count was valid, the Court found it 'unnecessary' to consider the challenge to the first count. The State had no more interest in compelling petitioner to stand trial again for larceny, of which he had been acquitted, than in retrying any other person declared innocent after an error-free trial. See United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. This Court said in dictum in Hoag v. New Jersey, 356 U.S. 464, 471, 78 S.Ct. The Court concludes that '(s)ince (the Maryland courts) decided this federal constitutional question, we see no reason why we should not do so as well.' 1192, 41 L.Ed. 221, 223, 2 L.Ed.2d 199 (1957), '(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' Failed to aver the time Green was decided result and overruled Palko v. Connecticut 1937... Conviction to negligible proportions, 1922, 18 L.Ed.2d 1019 ( 1967.! Conviction 'must be upheld ' if any one count was good against double jeopardy (. Maryland ( 1968 ) fundamental nature of the indictment, v. 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