Hoag v. New Jersey/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

We recently stated in Green v. United States, 355 U.S. 184, 190, 79 S.Ct. 221, 225, 2 L.Ed.2d 199, that by virtue of the constitutional protection against double jeopardy an accused can be forced to 'run the gantlet' but once on a charge. That case, involving a federal prosecution, provides for me the standard for every state prosecution as well, and by that standard this judgment of conviction should be reversed.

Hoag is made to run the gantlet twice. The facts are simple. Five men-Cascio, Capezzuto, Galiardo, Dottino, and Yager-were together at Gay's Tavern when three armed men entered and robbed them. Petitioner was indicted and tried for the offenses of robbing three of the five.

One indispensable element of the crime was the taking of property 'by violence or putting him in fear,' as provided by the New Jersey statute defining robbery. N.J.Stat.Ann.1939, 2:166-1. The critical evidence was petitioner's alibi: He claimed to be at another place at the time. One witness, however, identified him as one of the robbers. The jury acquitted. Then petitioner was indicted for robbing one of the remaining five named individuals. The criminal transaction, unlike that in Burton v. United States, 202 U.S. 344, 378, 26 S.Ct. 688, 697, 50 L.Ed. 1057, was indivisible. The time and place were the same. The central issue was the same, for, as stated by Justice Heher, dissenting, below, ' * *  * here the assaults were simultaneous, the putting in fear was but a single act or offense operating alike upon all the victims of the felonious endeavor at the same time.' 21 N.J. at page 510, 122 A.2d at page 635. The basic facts canvassed were the same. Petitioner's alibi was tendered once more. The testimony of the selfsame witness identifying petitioner as one of the robbers was introduced. This time petitioner was convicted.

The resolution of this crucial alibi issue in favor of the prosecution was as essential to conviction in the second trial as its resolution in favor of the accused was essential to his acquittal in the first trial. Since petitioner was placed in jeopardy once and found not to have been present or a participant, he should be protected from further prosecution for a crime growing out of the identical facts and occurring at the same time.

Hoag was once made to 'run the gantlet' on whether he was present when the violence and putting in fear occurred. Having once run that gantlet successfully, he may not be compelled to run it again.