Rehearing Denied Nov. 15, 1960.
[88 Ariz. 270] Wade Church, Atty. Gen., Lloyd C. Helm, County, Atty. of Cochise County, Bisbee, for plaintiff.
Carl D. Hammond, County Atty. of Mohave County, Kingman, Bill Helm, County Atty. of Yuma County, Yuma, Charles C. Stidham, County Atty. of Maricopa County, Phoenix, amici curiae.
Harry Ackerman, County Atty. of Pima County, Tucson, James Boyce Scott, County Atty. of Greenlee County, Clifton, intervenors.
Flynn & Allen, Phoenix, for defendant.
LEE GARRETT, Superior Court Judge.
Defendant, Albert D. Thomas, was tried upon an information charging him with murder in the first degree. He was charged and tried jointly with his wife, Ellora Thomas. The jury returned a verdict of 'Not guilty' as to the wife, and 'guilty' of manslaughter as to the defendant. Defendant appealed from the judgment rendered against him, and from the whole thereof, and from the order denying a new trial. On appeal, the judgment was reversed and the case remanded for a new trial. State v. Thomas, 86 Ariz. 161, 342 P.2d 197.
The case was set for trial de novo and defendant timely moved under A.R.S. § 13-145, to quash the information charging murder in the first degree, contending that he had been fully tried on the charge of murder in the first degree, and that, by the jury's finding him guilty of manslaughter, he had been conclusively found not guilty of murder either in the first or second degree.
The trial court was of the opinion that the basic question raised was so important and doubtful as to require a decision of this court before placing defendant on trial for his life. With the consent of the defendant, the matter was certified to this court under Rule 346, Rules of Criminal Procedure, A.R.S., Vol. 17. The question certified is:
'Where a defendant has been convicted of the crime of manslaughter under an information charging him with murder in the first degree and said conviction for the crime of manslaughter has been reversed on appeal and a [88 Ariz. 271] new trial ordered, would a second trial under the same information charging murder in the first degree place the defendant twice in jeopardy for the same offense (murder) in violation of the Fifth Amendment to the Constitution of the United States, or Article 2, Section 10, of the Constitution of Arizona.'
This raises the question of a possible violation of the Fifth Amendment to the Federal Constitution, as well as a possible violation of Article 2, Section 10 of the Constitution of the State of Arizona, A.R.S.
The applicable portion of the Fifth Amendment to the Constitution of the United States reads as follows:
'* * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * *.'
Article 2, Section 10, of the Constitution of the State of Arizona reads as follows:
'No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense.'
In our consideration of the 'double jeopardy' provision of the Fifth Amendment to the United States Constitution, a review of the United States Supreme Court cases shows that the first ten amendments of the Constitution are directed toward the Federal Government and have no direct application to the states. Barron for Use of Tiernan v. Mayor and City Council of City of Baltimore, 7 Pet. 243, 32 U.S. 243, 8 L.Ed. 672; Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97. However, some of the more basic rights contained in the first ten amendments have been held to be applicable to the states, through the requirements of 'due process' of the Fourteenth Amendment. In Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, the question arose as to whether double jeopardy was such a basic right as to be a requirement of due process. The court held it was not, and that a state could enact a statute allowing the prosecution to appeal in a criminal case and due process would not be violated by such a statute.
From this it appears the states are left to withhold from their residents the plea of double jeopardy in some cases, and nothing in the Constitution of the United States is violated so long as due process is otherwise satisfied. In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, the Supreme Court held a new trial in Federal District Court on first degree murder would violate the Fifth Amendment after the defendant had successfully appealed his conviction of second degree murder. This ruling however has no direct effect on the states, since in the Palko case, supra, it was held they may provide 'due process' though the state is allowed an appeal and a [88 Ariz. 272] new trial. If the states are unrestricted to this extent, then surely they may interpret their own constitutional provisions on double jeopardy despite the Green case, supra. The Green case contains an excellent discussion of the interpretation of the Fifth Amendment of the United States Constitution, but that case is not controlling over the states, and each state may determine the scope of its own double jeopardy provision, if one is provided.
The provision contained in the Constitution of Arizona, Article 2, Section 10, against twice putting a person in jeopardy is, of course, the supreme law of this state and any statute or rule of court which violates this constitutional ...