MR. JUSTICE CARDOZO delivered the opinion of the Court.
A statute of Connecticut permitting appeals in criminal cases to be taken by the state is challenged by appellant as an infringement of the Fourteenth Amendment of the Constitution of the United States. Whether the challenge should be upheld is now to be determined.
Appellant was indicted in Fairfield County, Connecticut, for the crime of murder in the first degree. A jury
Pursuant to the mandate of the Supreme Court of Errors, defendant was brought to trial again. Before a jury was impaneled and also at later stages of the case he made the objection that the effect of the new trial was to place him twice in jeopardy for the same offense, and in so doing to violate the Fourteenth Amendment of the Constitution of the United States. Upon the overruling of the objection the trial proceeded. The jury returned a verdict of murder in the first degree, and the court sentenced the defendant to the punishment of
1. The execution of the sentence will not deprive appellant of his life without the process of law assured to him by the Fourteenth Amendment of the Federal Constitution.
The argument for appellant is that whatever is forbidden by the Fifth Amendment is forbidden by the Fourteenth also. The Fifth Amendment, which is not directed to the states, but solely to the federal government, creates immunity from double jeopardy. No person shall be "subject for the same offense to be twice put in jeopardy of life or limb." The Fourteenth Amendment ordains, "nor shall any State deprive any person of life, liberty, or property, without due process of law." To retry a defendant, though under one indictment and only one, subjects him, it is said, to double jeopardy in violation of the Fifth Amendment, if the prosecution is one on behalf of the United States. From this the consequence is said to follow that there is a denial of life or liberty without due process of law, if the prosecution is one on behalf of the People of a State. Thirty-five years ago a like argument was made to this court in Dreyer v. Illinois, 187 U.S. 71, 85, and was passed without consideration of its merits as unnecessary to a decision. The question is now here.
We do not find it profitable to mark the precise limits of the prohibition of double jeopardy in federal prosecutions. The subject was much considered in Kepner v. United States, 195 U.S. 100, decided in 1904 by a closely divided court. The view was there expressed for a majority of the court that the prohibition was not confined
We have said that in appellant's view the Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth. His thesis is even broader. Whatever would be a violation of the original bill of rights (Amendments I to VIII) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule.
The Fifth Amendment provides, among other things, that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury. This court has held that, in prosecutions by a state, presentment or indictment by a grand jury may give way to informations at the instance of a public officer. Hurtado v. California, 110 U.S. 516; Gaines v. Washington, 277 U.S. 81, 86. The Fifth Amendment provides also that no person shall be
On the other hand, the due process clause of the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the freedom of speech which the First Amendment safeguards against encroachment by the Congress, De Jonge v. Oregon, 299 U.S. 353, 364; Herndon v. Lowry, 301 U.S. 242, 259; or the like freedom of the press, Grosjean v. American Press Co., 297 U.S. 233; Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707; or the free exercise of religion, Hamilton v. Regents, 293 U.S. 245, 262; cf. Grosjean v. American Press Co., supra; Pierce v. Society of Sisters, 268 U.S. 510; or the right of peaceable assembly, without which speech would be unduly trammeled, De Jonge v. Oregon, supra; Herndon v. Lowry, supra; or the right of one accused of crime to the benefit of counsel, Powell v. Alabama, 287 U.S. 45. In these and other situations immunities that are valid as against the federal government by force of the specific
The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence. The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, supra, p. 105; Brown v. Mississippi, supra, p. 285; Hebert v. Louisiana, 272 U.S. 312, 316. Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them. What is true of jury trials and indictments is true also, as the cases show, of the immunity from compulsory self-incrimination. Twining v. New Jersey, supra. This too might be lost, and justice still be done. Indeed, today as in the past there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who
We reach a different plane of social and moral values when we pass to the privileges and immunities that have been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment by a process of absorption. These in their origin were effective against the federal government alone. If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor justice would exist if they were sacrificed. Twining v. New Jersey, supra, p. 99.
2. The conviction of appellant is not in derogation of any privileges or immunities that belong to him as a citizen of the United States.
Maxwell v. Dow, supra, p. 584, gives all the answer that is necessary.
The judgment is
MR. JUSTICE BUTLER dissents.
A statute of Vermont (G.L. 2598) was given the same effect and upheld as constitutional in State v. Felch, 92 Vt. 477; 105 Atl. 23.
Other statutes, conferring a right of appeal more or less limited in scope, are collected in the American Law Institute Code of Criminal Procedure, June 15, 1930, p. 1203.
Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defence."
Compulsory self-incrimination is part of the established procedure in the law of Continental Europe. Wigmore, supra, p. 824; Garner, Criminal Procedure in France, 25 Yale L.J. 255, 260; Sherman, Roman Law in the Modern World, vol. 2, pp. 493, 494; Stumberg, Guide to the Law and Legal Literature of France, p. 184. Double jeopardy too is not everywhere forbidden. Radin, Anglo American Legal History, p. 228.