Ashe v. Swenson

397 U.S. 436 (1970)

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Nature of the Case

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Facts

Three or four masked men, armed with a shotgun and pistols, broke into a basement poker game and robbed each of the poker players of money and various articles of personal property. They fled in a car belonging to one of the victims of the robbery. The stolen car was discovered in a field, and later that morning three men were arrested by a state trooper while they were walking on a highway not far from where the abandoned car had been found. Ashe (D) was arrested by another officer some distance away. D went to trial on the charge of robbing Donald Knight. The proof that an armed robbery had occurred and that personal property had been taken from Knight as well as from each of the others was unassailable. Evidence that D had been one of the robbers was weak. Knight testified without contradiction that the robbers had stolen from him his watch, $250 in cash, and about $500 in checks. His billfold, which had been found by the police in the possession of one of the three other men accused of the robbery, was admitted in evidence. The defense offered no testimony and waived final argument. The jury - though not instructed to elaborate upon its verdict - found D 'not guilty due to insufficient evidence.' Six weeks later D was brought to trial again, this time for the robbery of another participant in the poker game, a man named Roberts. D filed a motion to dismiss, based on his previous acquittal. The motion was overruled. Two witnesses who at the first trial had been wholly unable to identify D as one of the robbers, now testified that his features, size, and mannerisms matched those of one of their assailants. Another witness who before had identified D only by his size and actions now also remembered him by the unusual sound of his voice. The State further refined its case at the second trial by declining to call one of the participants in the poker game whose identification testimony at the first trial had been conspicuously negative. This time the jury found D guilty, and he was sentenced to a 35-year term in the state penitentiary. The Supreme Court of Missouri affirmed. A collateral attack upon the conviction in the state courts five years later was also unsuccessful. D then brought a habeas corpus proceeding in the United States District Court for the Western District of Missouri, claiming that the second prosecution had violated his right not to be twice put in jeopardy. The District Court denied the writ, although apparently finding merit in D's claim. The Court of Appeals for the Eighth Circuit affirmed, also upon the authority of Hoag v. New Jersey. The Supreme Court granted certiorari.