Everett D. Green v. United States

FAHY, Circuit Judge

(dissenting).

Green was first tried for arson and for’ murder in the first degree while committing arson. He was convicted of arson and of second degree murder. This result constituted an acquittal of first degree murder. Trono v. United States, 199 U.S. 521, 529-530, 26 S.Ct. 121, 50 L.Ed. 292, and see, dissenting opinion of Mr. Justice McKenna, 199 U.S. 538, 26 S.Ct. 121. He appealed only from the judgment of conviction of second degree murder.1 Green v. United States, 95 U.S.App.D.C. 45, 46, 218 F. 2d 856, 857. We there reversed that conviction. That appeal did not bring to this court his acquittal of first degree murder.2 Accordingly his appeal did not waive his constitutional right not to be placed in jeopardy a second time for first degree murder. U.S.Const. Amend. VI. Therefore I think he could not be tried again for first degree murder. I do not think Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292, requires us to hold otherwise. For the Trono case arose in the Philippine Islands where Trono’s conviction of a lesser offense than that for which he was indicted and first tried was appealed to the Supreme Court of the Philippines under procedures which permitted the whole case to be reviewed and tried de novo in the appellate court. Trono v. United States, supra, 199 U.S. at page 534, 26 S.Ct. at page 124; United States v. Berry, 5 Phil.Rep. 409; United States v. Clemente, 24 Phil.Rep. 178; cf. Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114; United States v. Atienza, 1 Phil.Rep. 736; United States v. Abijan, 1 Phil.Rep. 83; United States v. Padilla, 4 Phil.Rep. 511; United States v. Flemister, 4 Phil.Rep. 300, 5 Phil.Rep. 650; United States v. Noriega, 31 Phil.Rep. 310, 314; United States v. Tamparong, 31 Phil.Rep. 321, 328; United States v. Gimenez, 34 Phil. Rep. 74, 77. So that when Trono took his appeal, in his effort to obtain acquittal entirely, he waived his acquittal of the more serious offense. Therefore he could be again put in jeopardy with respect to it. No comparable situation governed Green’s previous appeal, and I think we should apply the prevailing rule at common law which would have precluded his second trial for the greater offense of which he had been acquitted. See cases cited in Trono by Mr. Justice McKenna, 199 U.S. at page 540, note 1, 26 S.Ct. 121, 50 L.Ed. 292. It is true that in Trono the opinion of Mr. Justice Peckham, for himself and for Mr. Justice Brewer, Mr. Justice Brown and Mr. Justice Day went further, and its language if applied to Green’s case would require a conclusion contrary to that I state; but since that opinion did *719not have the adherence of a majority of the Court, and since also the situation in the Philippines differed materially from that here, I believe with all deference that we are free to apply to Green’s case principles which do not accord with all that is said in Mr. Justice Peckham’s opinion in Trono.

I am authorized to say that Chief Judge EDGERTON and Circuit Judge BAZELON join in this dissent.

. His notice of appeal, apparently in his own handwriting, in terms applied to arson as well as second degree murder. But in presenting the case in this court both the United States and appellant represent that the appeal was only from that part of the judgment which covered the conviction of second degree murder.

. Nor, apparently, did it bring to this court his conviction of arson. See note 1 supra. Our prior decision, Green v. United States, supra, did not consider the arson conviction.