Petitioner received a general verdict of acquittal on an information charging him with murder in the course of a robbery. When petitioner was subsequently indicted for the robbery, his defense, rejected by the state courts, was that constitutional principles of double jeopardy collaterally estopped the State from relitigating those factual issues already determined in his favor, determinations that make his conviction of robbery logically impossible. Held: It must be concluded that the jury (which had been given a charge on accessories) found that petitioner was not present at the robbery-murder scene, thus negating the possibility of a constitutionally valid conviction for the robbery. Ashe v. Swenson, 397 U.S. 436 .
Petition for certiorari granted; 251 Ark. 499, 473 S. W. 2d 904, reversed and remanded.
On December 24, 1968, petitioner, one Richard Turner (no relation to petitioner), the decedent Larry Wayne Yates, and one other person were involved in a poker game, which lasted until the early hours of Christmas morning. After he left the game, Yates was murdered and robbed, and an information filed on December 27 charged that:
Petitioner contends that Fifth Amendment principles of double jeopardy, see Benton v. Maryland, 395 U.S. 784 (1969), prevent his trial on the robbery indictment, because the State is collaterally estopped from relitigating those issues already determined in his favor at the murder trial, determinations that make his conviction on the robbery charge a logical impossibility. Collateral estoppel is part of the Fifth Amendment's double jeopardy guarantee, Ashe v. Swenson, supra, and it is "a matter of constitutional fact [this Court] must decide through an examination of the entire record." Id., at 443. Thus, the rejection of petitioner's claim by the Arkansas Supreme Court on procedural grounds does not foreclose our inquiry on this issue.
In Ashe, the defendant had been tried and acquitted by a general verdict of the robbery of one member of a poker game. He was then tried and convicted of the robbery of another of the poker players. This Court reversed his conviction, concluding that "[t]he single rationally conceivable issue in dispute before the jury [in the first trial] was whether the petitioner had been one of the robbers," 397 U.S., at 445 , and that, this issue once having been determined by a jury in the petitioner's favor, the State was forestalled from relitigating it.
In the present case, petitioner was not charged with robbery at the first trial, but the State has stipulated that the robbery and murder arose out of "the same set of [407 U.S. 366, 369] facts, circumstances, and the same occasion." The crucial question, therefore, is what issues a general verdict of acquittal at the murder trial resolved. The jury was instructed that it must find petitioner guilty of first-degree murder if it found that he had killed the decedent Yates either with premeditation or unintentionally during the course of a robbery. The jury's verdict thus necessarily means that it found petitioner not guilty of the killing. The State's theory, however, is that the jury might have believed that petitioner and Richard Turner robbed Yates, but that Richard actually committed the murder. This theory is belied by the actual instructions given the jury. * The trial judge charged that:
The writ of certiorari is granted, the decision of the Arkansas Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.
Given the decision in Ashe v. Swenson, 397 U.S. 436 (1970) (see, however, my dissent in Harris v. Washington, 404 U.S. 55, 57 (1971)), I join the judgment of the Court.
THE CHIEF JUSTICE, rather than taking summary action in this case, would hear oral argument and give the matter plenary consideration.
[ Footnote * ] These instructions reflect Ark. Stat. Ann. 41-2227 which makes accessories before the fact to first-degree murder subject to the same punishment as principals. Ark. Stat. Ann. 41-118 abolished the distinction between principals and accessories before the fact and also provides that "all accessories before the fact shall be deemed principals and punished as such." Ark. Stat. Ann. 41-119 defines an accessory as "he who stands by, aids, abets, or assists . . . the perpetration of the crime." [407 U.S. 366, 371]