19

REHNQUIST, J., concurring in judgment

States, ante, p. 1. The Court of Appeals will be free to direct further proceedings in the District Court or to certify unresolved questions of state law to the Florida Supreme Court. See Fla. Stat. § 25.031 (1977), Fla. App. Rule 4.61; Lehman Bros. v. Schein, 416 U. S. 386 (1974).

Reversed and remanded.

MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case.

MR. JUSTICE POWELL, concurring.

I concur in the opinion of the Court except insofar as it states that the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings. See Crist v. Bretz, post, p. 40 (POWELL, J., dissenting). I believe, however, that under our decision today in Burks v. United States, ante, p. 1, a fundamental component of the prohibition against double jeopardy is the right not to be retried once an appellate court has found the evidence insufficient as a matter of law to support the jury's guilty verdict.

MR. JUSTICE REHNQUIST, concurring in the judgment.

For the reasons stated by MR. JUSTICE POWELL in his dissenting opinion in Crist v. Bretz, post, p. 40, I do not agree with the Court's premise, ante, at 24, that "the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings." Even if I did agree with that view, I would want to emphasize more than the Court does in its opinion the varying practices with respect to motions for new trial and other challenges to the sufficiency of the evidence both at the trial level and on appeal in the 50 different States in the Union. Thus, to the extent that Florida practice in this regard differs from practice in the federal system, the impact of the Double Jeopardy Clause may likewise differ with respect to a particular proceeding. I therefore concur only in the Court's judgment.

CRIST, WARDEN, ET AL. v. BRETZ ET AL.

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

No. 76-1200. Argued November 1, 1977-Reargued March 22, 1978— Decided June 14, 1978

The federal rule that jeopardy attaches in a jury trial when the jury is empaneled and sworn, a rule that reflects and protects the defendant's interest in retaining a chosen jury, is an integral part of the Fifth Amendment guarantee against double jeopardy made applicable to the States by the Fourteenth Amendment. Hence, a Montana statute providing that jeopardy does not attach until the first witness is sworn cannot constitutionally be applied in a jury trial. Pp. 32-38. 546 F. 2d 1336, affirmed.

STEWART, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 38. BURGER, C. J., filed a dissenting opinion, post, p. 39. POWELL, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 40.

Robert S. Keller, Special Assistant Attorney General of Montana, reargued the cause for appellants. With him on the briefs was Michael T. Greely, Attorney General.

W. William Leaphart, by appointment of the Court, 431 U. S. 963, reargued the cause and filed briefs for appellee Cline. Charles F. Moses reargued the cause and filed briefs for appellee Bretz.

Kenneth S. Geller argued the cause on the reargument for the United States as amicus curiae urging reversal. On the brief were Solicitor General McCree, Assistant Attorney General Civiletti, Deputy Solicitor General Easterbrook, and Alan J. Sobol.

MR. JUSTICE STEWART delivered the opinion of the Court. This case involves an aspect of the constitutional guarantee against being twice put in jeopardy. The precise issue is whether the federal rule governing the time when jeopardy attaches in a jury trial is binding on Montana through the Fourteenth Amendment. The federal rule is that jeopardy attaches when the jury is empaneled and sworn; a Montana statute provides that jeopardy does not attach until the first witness is sworn,1

I

The appellees, Merrel Cline' and L. R. Bretz, were brought to trial in a Montana court on charges of grand larceny, obtaining money and property by false pretenses, and several counts of preparing or offering false evidence. A jury was empaneled and sworn following a three-day selection process. Before the first witness was sworn, however, the appellees filed a motion drawing attention to the allegation in the

1 Montana Rev. Codes Ann. § 95-1711 (3) (1947) provides in pertinent part:

"[A] prosecution based upon the same transaction as a former prosecution is barred by such former prosecution under the following circumstances: ... (d) The former prosecution was improperly terminated. Except as provided in this subsection, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the first witness is sworn but before verdict...."

See also State v. Cunningham, 166 Mont. 530, 535-536, 535 P. 2d 186, 189. In addition to Montana, Arizona also holds that jeopardy does not attach until "proceedings commence," although this may be as early as the opening statement. Klinefelter v. Superior Court, 108 Ariz. 494, 495, 502 P. 2d 531, 532; State v. Mojarro Padilla, 107 Ariz. 134, 139–140, 483 P. 2d 549, 553. Until recently, New York had a similar rule. See Mizell v. Attorney General, 442 F. Supp. 868 (EDNY).

2 We were informed during argument that the conviction of Merrel Cline has been reversed, see State v. Cline, 170 Mont. 520, 555 P. 2d 724, and the charges against him dismissed. This appeal, therefore, has become moot as to him.

false-pretenses charge that the defendants' illegal conduct began on January 13, 1974. Effective January 1, 1974, the particular statute relied on in that count of the information, Mont. Rev. Codes Ann. § 94-1805 (1947), had been repealed. The prosecutor moved to amend the information, claiming that "1974" was a typographical error, and that the date on which the defendants' alleged violation of the statute had commenced was actually January 13, 1973, the same date alleged in the grand larceny count. The trial judge denied the prosecutor's motion to amend the information and dismissed the false-pretenses count. The State promptly but unsuccessfully asked the Montana Supreme Court for a writ of supervisory control ordering the trial judge to allow the amendment.

Returning to the trial court, the prosecution then asked the trial judge to dismiss the entire information so that a new one could be filed. That motion was granted, and the jury was dismissed. A new information was then filed, charging the appellees with grand larceny and obtaining money and property by false pretenses. Both charges were based on conduct commencing January 13, 1973. Other than the change in dates, the new false-pretenses charge described essentially the same offense charged in the earlier defective count.

After a second jury had been selected and sworn, the appellees moved to dismiss the new information, claiming that the Double Jeopardy Clauses of the United States and Montana Constitutions barred a second prosecution. The motion was denied, and the trial began. The appellees were found guilty on the false-pretenses count, and sentenced to terms of imprisonment. The Montana Supreme Court, which had previously denied appellees habeas corpus relief, State ex rel. Bretz v. Sheriff, 167 Mont. 363, 539 P. 2d 1191, affirmed the judgment as to Bretz on the ground that under state law

The motion asked that the prosecution's evidence be limited to the time period alleged in the information.

jeopardy had not attached in the first trial. State v. Cline, 170 Mont. 520, 555 P. 2d 724.

In the meantime the appellees had brought a habeas corpus proceeding in a Federal District Court, again alleging that their convictions had been unconstitutionally obtained because the second trial violated the Fifth and Fourteenth Amendment guarantee against double jeopardy. The federal court denied the petition, holding that the Montana statute providing that jeopardy does not attach until the first witness is sworn does not violate the United States Constitution. The court held in the alternative that even if jeopardy had attached, a second prosecution was justified, as manifest necessity supported the first dismissal. Cunningham v. District Court, 406 F. Supp. 430 (Mont.).*

The Court of Appeals for the Ninth Circuit reversed. 546 F.2d 1336. It held that the federal rule governing the time when jeopardy attaches is an integral part of the constitutional guarantee, and thus is binding upon the States under the Fourteenth Amendment. The appellate court further held that there had been no manifest necessity for the Montana trial judge's dismissal of the defective count, and, accordingly, that a second prosecution was not constitutionally permissible."

Appellants appealed pursuant to 28 U. S. C. § 1254 (2), seeking review only of the holding of the Court of Appeals that Montana is constitutionally required to recognize that, for purposes of the constitutional guarantee against double jeopardy, jeopardy attaches in a criminal trial when the jury is empaneled and sworn. We postponed consideration of probable jurisdiction sub nom. Crist v. Cline, 430 U. S. 982, and the case was argued. Thereafter the case was set for

The Cunningham case, involving the same issue, was consolidated with the appellees' case.

In this Court the appellants specifically waived any challenge to the Court of Appeals' ruling on manifest necessity, and we intimate no view as to its correctness.