Jеwel Houp, who has been twice tried and twice found guilty of the same offense of larceny in Nebraska courts, sought to have the United States district court declare that he twice had been placed in jeopardy of “life or limb” contrary to the protection afforded him by the Fifth Amendment to the United States Constitution. The district court, the Honorable Robert Van Pelt, dismissed Houp’s claim. 1 Houp brought this timely appeal. For the reasons stated below, we affirm.
The issue arises in a somewhat unusual factual setting. Houp’s travail commеnced with an information charging him with larceny of a semi-trailer adapted to hauling grain. He was first tried on this charge before the Nebraska district court in Lancaster County between April 14 and April 18, 1967. During those proceedings, the state trial judge failed to notify the jury that it must, under Nebrаska law, “ascertain and declare in its verdict the value of the property stolen”, as required by Neb. R.S.Supp., Section 29-2026.01 (1967).
The Nebraska trial judge discovered this error after the jury had retired for deliberations. Thereafter, he discussed this omission with counsel for the pаrties. Both responded negatively to the *255 court’s inquiry whether further action should be taken before the jury returned. Thereafter, the jury declared Houp guilty on a form which did not specify the value of the property stolen. The court accepted the verdict, dismissеd the jury and remanded Houp to the custody of the sheriff. These incidents occurred on April 18. Two days later, Houp moved that he be released from custody asserting that he could not “legally and constitutionally be deprived of his liberty * * * nor held again in jeopardy * * * ” pursuаnt to the invalid verdict. The trial court overruled this motion. A few days later, sua sponte, the trial court set aside the guilty verdict and ordered that Houp be retried.
Houp appealed this determination to the Supreme Court of Nebraska, which rejected his claim thаt the Double Jeopardy Clause in the Nebraska Constitution barred retrial. State v. Houp,
The verdict in this case was the equivalent of a mistrial. It was within the authority and discretion of the trial court to set аside the verdict and order a new trial. The motion to discharge was properly overruled.
Nebraska retried Houp in March of 1968. The jury again found Houp guilty, this time returning the verdict upon an appropriate form. The court sentenced Houp to a term in the Nebraska penitentiary.
Houp instituted these declaratory judgment proceedings in the United States district court for redress of his civil rights pursuant to 28 U.S.C. §§ 2201, 2202 and 28 U.S.C. § 1343(3). Judge Van Pelt stayed proceedings pending Houp’s appeal from his second conviction on the larceny charge. After the Nebraska Supreme Court again affirmed, this time on the issue of sufficiency of the evidence to sustain the conviction, State v. Houp,
The hoary antecedents 3 of double jeopardy protection — nemo debet bis vexari pro eadem causa, no one shall be twice vexed for the same cause — rests оn man’s abhorrence to the power of government to try a man twice for the same conduct. The constitutional double jeopardy concept embodies the idea that:
* * * [T]he 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 innocеnt he be found guilty. Green v. United States,355 U.S. 184 , 187-188,78 S.Ct. 221 , 223,2 L.Ed.2d 199 (1957).
Not all retrials are barred. The rule is well-established in our constitutional jurisprudence that the government may retry a defendant whose conviction is set aside on his own request due to an error in the proceedings. Ball v. United States,
We here, however, concern ourselves with that category of cases in which the accused’s trial has terminated short of completion and without the accused requesting a retrial. The rubric “manifest necеssity”, a term coined by Mr. Justice Story in United States v. Perez, 22 U.S. (
* * * [I]n all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their oрinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the cirсumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes * * *. 9 Wheat, at 580.
This doctrine possesses continuing vitality. See United States v. Tateo,
supra,
This necessity tenet dictates no mechanical application of an abstract formula. All circumstances must be considered. Each case turns on its own particular facts.
Downum, supra,
In cases of this kind, the court is called upon to weigh factual circumstances in detеrmining whether the interests of society or the rights of an individual shall predominate. The evaluation of such circumstances has produced a lack of unanimity in the Court’s opinions in particular cases. In
Tateo, supra,
It seems to us that the Supreme Court relied on special circumstances in each ease. In Downum, supra, it denied a retrial when the grant of a mistrial served to benefit the interests of the prosecution. Conversely, in Gori, supra, when the grant of a mistrial served the interest of the accused, the Court authorized a retrial. In Tateo, supra, the fact that the accused had been found guilty wеighed heavily in the determination that the Double Jeopardy Clause would not bar another trial.
By granting Houp a new trial on its own motion, the Nebraska trial court corrected its error and afforded the defendant a second opportunity to defend against the stаte’s charge. It might have entered a judgment of conviction and forced Houp to appeal in order to rectify the omission in the verdict and obtain a retrial. Double jeopardy clearly would then not apply.
Ball, supra,
Houp also argues that, having once faced a jury, he must go free since no “unforeseeable circumstances” prevented the trial court from correcting its error in the first trial prior to the time that the jury reported its verdict. Specifically, Houp asserts that the prosecutor and the trial judge, on becoming aware of the error, should have arranged for the recall of the jury from its deliberations in order to furnish it with additional instructions.
The рhrase “unforeseeable circumstances” appears in Wade v. Hunter,
There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power tо put the defendant to trial again. And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of a jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments. (Emphasis added, footnote omitted.) Wade, supra,336 U.S. at 689 ,69 S.Ct. at 837 .
A reading of the full paragraph indicates that this term refers to the identical type of cases to which the concept of manifest necessity applies as articulated in
Perez, supra,
22 U.S. (
Further, the giving of an additional instruction to cure the error might have operated to prejudice Houp’s interest by focusing the jury’s special attention at the court’s suggestion upon a verdict of guilty. Assuming that the jury returned the same verdict, Houp undoubtedly would claim prejudice from the court’s
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additional instructions. See Potard v. State,
The fact that Houp did not request a new trial, a request that undoubtedly would have been granted, is immaterial in resolving the double jeopardy issue. The opinion of the majority in
Tateo, supra,
If Tateo had requested a mistrial on the basis of the judge’s comments, there would be no doubt that if he had been successful, the Government would not have been barred from retrying him. See Gori v. United States,367 U.S., at 368 ,81 S.Ct. at 1526 ; see also367 U.S., at 370 ,81 S.Ct. at 1527 (dissenting opinion of DOUGLAS, J.). Although there may be good reasons why Tateo and his counsel chose not to make such a motion before the trial judge, it would be strаnge were Tateo to benefit because of his delay in challenging the judge’s conduct. (Footnotes omitted.)
The trial judge needs to possess some limited leeway to grant a mistrial on his own motion, without immunizing the defendant from a retrial, as a means of assuring the defendant a fair trial. Mr. Justice Harlan appropriately commented in Tateo, supra:
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.377 U.S. at 466 ,84 S.Ct. at 1589 .
See also
Gori, supra,
Our examination of this record convinces us that in these particular and peculiar circumstаnces, Houp’s second trial falls outside the federal constitutional bar of double jeopardy.
Affirmed.
Notes
. Judge Van Pelt’s opinion is unreported.
. Judge Van Pelt acknowledged that federal double jeopardy applies to the states by virtue of the Fourteenth Amendment and, in so doing, he anticipated the Supreme Court holdings in Benton v. Maryland,
. Mr. Justice Black, dissenting, discusses these antecedents in Bartkus v. Illinois,