DUKE v. STATE

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Docket Number

7 Div. 916.

Attorney(S)

Gus W. Colvin, Jr. and James S. Hubbard, Anniston, for petitioner. In a case involving the murder of two persons at the same time and place, and where the single rationally conceivable issue is the identification of the accused, and a jury by its verdict has determined that accused was not guilty, collateral estoppel which is embodied in the Fifth Amendment Guarantee against double jeopardy forbids the State to prosecute accused in a second trial relating to the second victim of the same murder. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. The Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. There can be no doubt of the "retroactivity" of the United States Supreme Court's decision that the Fifth Amendment's guaranty against double jeopardy is enforceable against the states through the Fourteenth Amendment. United States Supreme Court Digest Criminal Law Section 22, page 535; Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. William J. Baxley, Atty. Gen., and J. Victor Price, Jr., Asst. Atty. Gen., for the State. Granting "constitutional right" status to the principle of collateral estoppel in criminal law is a radical departure from prior law and not due to be given retroactive application. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Brewer v. State, (Fla.Dist.Ct. of Appeal 1971) 253 So.2d 165.

Judges

LAWSON, Justice.

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In re Bobby DUKE v. STATE. Ex parte Bobby Duke, alias etc.

LAWSON, Justice.

We granted the petition for writ of certiorari filed by Bobby Duke, alias, to review the decision and judgment of the Court of Criminal Appeals in the case of Duke, alias v. State, Ala.Cr.App., 263 So.2d 165.

In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, the Supreme Court of the United States held that the principle of collateral estoppel which bars relitigation between the same parties of issues actually determined at a previous trial is embodied in the Fifth Amendment guaranty against double jeopardy and is applicable to the states by force of the Fourteenth Amendment.

The opinion in the Ashe case, supra, was delivered on April 6, 1970, approximately four months after Bobby Duke was tried and convicted in the Circuit Court of Calhoun County. Duke's pleas of autrefois acquit were not sustained.

The Court of Criminal Appeals refused to apply the holding in the Ashe case, supra, on the ground that such holding "is prospective, applying only to trials of pleas of autrefois acquit held after April 7, 1970."

We entertain the view that the holding of the Court of Criminal Appeals is not in accord with the decision of the Supreme Court of the United States in Simpson v. Florida, 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549.

It follows that the judgment of the Court of Criminal Appeals is reversed and the cause is remanded to that court for further proceedings.

Reversed and remanded.

HEFLIN, C. J., and MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX, and McCALL, JJ., concur.

In re Bobby DUKE v. STATE. Ex parte Bobby Duke, alias etc.

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