ACQUITTALS OR CONVICTIONS AS BARS TO PROSECUTIONS FOR PERJURY The procession of cases involving the entangled pleas of former jeopardy and res judicata as applied to the crim- inal law suggests that courts have failed to grasp the dis- tinction between the two pleas. The Supreme Court, how- ever, will soon have the opportunity to lift the veil of con- fusion, since U. S. v. William,' now pending before that Court,2 confronts it with the necessity of exploring the spheres in which former jeopardy and res judicata are applicable. In the Williams case, defendant Williams, having been tried and convicted for violating the Civil Rights Act, was indicted for perjury because of his allegedly false testimony at the trial. Williams' co-defendants, charged with aiding and abetting him in violating the Civil Rights Act, were acquitted of that charge, but they too, were indicted for perjury because of the testimony given by them at the trial. The various defendants entered pleas of former jeopardy and res judicata, upon which the District Court of Florida dismissed all the indictments for perjury, and the Govern- ment appealed to the Supreme Court. Undoubtedly the doctrines of res judicata and former jeopardy arise from the same policy that a man should not be twice subjected to jeopardy for the same cause, and that litigation must come to an end." Former jeopardy, which is expressly prohibited by the constitutions of most of the states as well as that of the United States,4 comes into play when there is an effort to 1 93 F. Supp. 922 (1950). 2 19 L.W. 3204 (1951) (argued before Supreme Court). " Miller, Criminal Law, § 186 (1934); Gehlbach, Res Judicata and Conspiracy, 65 J. Grim. Law 58 (1948). ' A.LJ. Administration of the Criminal Law, §6, Comment A (1936). All but five states-Connecticut, Maryland, Massachusetts, North Caro- lina and Vermont-have a constitutional provision against a second trial for the same offense. The Constitutions of thirtyfive states and the United States provide that an Individual shall not be twice subjected to "Jeopardy"; eight provide that after an acquittal a person shall not be tried again for the same offense. Nothing is revealed In any constitution as to what constitutes "Jeopardy" or what is the "same offense". DUKE BAR JOURNAL prosecute a defendant for an offense of which he has already been acquitted or convicted. Thus, as applied to the crim- inal law, it is similar to the doctrines of merger and bar which apply in civil actions to preclude a second suit on the same cause of action.5 The doctrine of criminal res judicata-at least, as used here--signifies that an issue once litigated in a criminal proceeding can not be relitigated between the state and the same defendant. It makes no difference that the offense prosecuted in the second proceeding differs from that of the former action, so long as the issue to be determined in the second prosecution has been adjudicated in the first. Res judicata is the analogue of what in civil actions is termed collateral estoppel.6 However, unlike double jeopardy, res judicata receives no explicit constitutional sanction un- less, as seems rather doubtful, it may be deemed to have been caught up in the ample folds of due process. An illustration of the distinction between former jeopardy and res judiata is afforded in the not infrequent situation, especially in the Federal Courts, where a crime is charged, and, either in another indictment or a second count of the same indictment, the defendant is charged with having conspired with others to commit the substantive offense. It now seems well settled that acquittal of the conspiracy charged would not constitute former jeopardy as to the prosecution for the crime itself; and vice versa. The offenses are neither the same in fact nor in law; either can exist without the other. If, instead of an acquittal on one charge there is a conviction on both, the absence of former jeopardy permits consecutive sentences to be imposed. The plea of.res judicata would be applicable however, if the charges are separately tried, for in such an instance, the first adjudication may be legally conclusive as to some point involved in the second prosecution. In Sealfon v. U. S.,7 A was acquitted of conspiring with B to commit a ' Of. Restatement, Judgments if 47, 48 (1942). * Of. Restatement, Judgments 13 68-72 (1942); Scott, (olateral ZetoiPpe by Judgment, 56 Harv. L. Rev. 1 (1942). S822 U.S. 575 (1948). ACQUITTALS OR CONVICTIONS AS BARS substantive offense, because the evidence failed to show an agreement between the two persons. In a subsequent trial of A for aiding and abetting B in committing the crime, the Government was held by the Supreme Court to be precluded by res judicata from reliance on the same evidence to show a relationship between A and B. Further examples of the operation of both former jeop- ardy and res judicata will be offered in analyzing each doctrine and in determining whether either affects the sit- uation involved in U. S. v. Wilams. Former Jeopardy Under former jeopardy "No person shall be subject for the same offense to be twice put in jeopardy of life or limb."" This raises the vexing problem: When are two offenses "the same"? Various tests have been laid down by the courts to answer this question. An old English case undertook one of the earliest efforts to answer this question in its test that: "Unless the first indictment were such as the prisoner might have been convicted upon proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second." 9 Other courts restated this rule affirmatively to say that if the evidence necessary to support the second indictment U. B. Const. Amendment V. Vandercomb's Case, 2 Leach C. C. 708, 720 (1796). The test was however, not followed in two later cases. In Rex v. Sheen, 2 C & P 634 (1827), it was held that an acquittal of murder of a bastard child known under one name is a bar to a.prosecution for murder of a bastard child known under another name where the jury finds that only one child was killed and it was known under both names. In Rex v. Clark, 1 B. & B. 473 (1820), an acquittal of giving poison by forcing child to "swal- low" poison was a bar to a prosecution for administering poison by forcing the child to "take into the throat" the poison by which the child died. DUKE BAR JOURNAL would support a conviction under the first indictment, the two offenses are the same.10 Suppose that under a murder indictment the criminal procedure of the applicable jurisdiction does not permit a conviction of assault and battery. In such instances, under the traditional rule that has been stated, an acquittal of murder would not seem to constitute former jeopardy for a second prosecution charging assault and battery. The evidence that would sustain a conviction of assault and bat- tery would not have sustained any conviction permissible under the first indictment. Thus the defendant was never before in jeopardy for the offense of assault and battery. Such an analysis, however correct 'theoretically, would probably be shrugged off by the court. The constant asser- tion of the commentators to the effect that acquittal or con- viction of a greater offense bars a prosecution for any lesser offense, 1 has not contained the limitation that under appli- cable procedural rules the.defendant could have been con- victed of a lesser offense under the indictment for the greater. Accordingly, in our hypothetical case of an ac- quittal for murder, few courts would permit a subsequent indictment for assault and battery. The commentators' statements may be correct in instances of a conviction for a greater offense followed by a prosecu- tion for a lesser, included offense; under the doctrine of merger, the conviction of the greater would swallow up all lesser crimes. 12 However, in cases of an acquittal of a 11People v. Defoor, 100 Cal. 150 (1893). The first information charged assault with intent to murder, based upon the defendant hit- ting the victim with a bottle. This action resulted in a conviction of assault. This was held to bar an action for mayhem, founded on the fact that defendant bit the finger of the victim which later had to be amputated, on the ground that it occurred during the same assault. In State v. Price, 127 Iowa 301 (1905), the court in holding an acquittal of statutory rape a bar to a subsequent prosecution for incest (though another act of intercourse was alleged) the court said: "Itis conceded that the same testimony would have supported either charge." See also Moore v. State, 59 Miss. 25 (1881). 2 See, e.g., Mller, Criminal Law, 50 (1934). 1 Com. v. Roby,12 Pick. (Mass.) 496 (1832). But, as the rule was formerly stated, merger applied only to an offense of less degree. Thus a felony would swallow up a misdemeanor but not another felony; nor would a misdemeanor swallow up another misdemeanor. ACQUITTALS OR CONVICTIONS AS BARS greater offense followed by prosecution for a lesser, merger would not apply, and barring a second prosecution would involve some disregard of the traditional "same evidence rule" for applying former jeopardy. Not only disregard but also occasional reformulation has been the fate of the oft-stated "same evidence rule." One court has suggested: "Another rule sometimes adopted is that the conviction or acquittal on one indictment will be a bar to another prosecution growing out of the same trans- action." However, the Court retreated after this approach to a doctrine that there should be only one offense punish- able on the basis of a single transaction; it added that "this also must be taken as a true rule in a general sense.