¹ Cf. Orfield, , “Double Jeopardy in Federal Criminal Cases” (1967) 3 Cal. West. L.R. 76.Google Scholar The principle in general was familiar to Roman law: Bona fides non patitur ut bis idem exigatur (Digest 50.7.57). In the common law the rule is first referred to in Anon (1367), 145 E.R. 34, case 87, from which it seems that the plea of autrefois convict was already well known at the time.

² The Fifth Amendment of the United States Constitution is an outstanding example. Similar provisions are found in the constitutions of most of the states (Note, “Twice in Jeopardy” (1965) 75 Yale L.J. 262 (hereinafter—Note 75 Yale). See also the constitutions of Japan (1946, sec. 39), Germany (1949, sec. 103 (3)), India (1950, sec. 20 (2)).

³ Connelly v. Director of Public Prosecution [1964] 2 All E.R. 401 at 343 (per Lord Devlin).

⁴ Morris, N. and Howard, C., Studies in Criminal Law (1964), Chap. VIIGoogle Scholar (hereinafter referred to as Morris-Howard).

⁵ See Connelly 401, 430, 434.

⁶ In R. v. Connelly [1963] 3 All E.R. 512, and Connelly v. Director of Public Prosecution [1964] 2 All E.R. 401 (heinafter referred to as Connelly).

⁷ Connelly 428. To the same effect in Australia a half century earlier Madden, C.J. in McNicol (1966) U.L.A. 352.Google Scholar See also R. v. Connelly [1963] supra n. 6 at p. 512.

⁸ Note (1940) 24 Minn. L.R. 522.

⁹ Morris-Howard 260. For the U.S.A., see Comment, “Statutory Implementation of Double Jeopardy Clause: New Life for a Moribund Constitutional Guaranty” (1956) 65 Yale L.J. 339 (hereinafter referred to as Comment, 65 Yale).

¹⁰ See, e.g., R. v. Vandercomb and Abbot (1796), 168 E.R. 455 and Comment, 65 Yale 343, 345 n. 30, 348 n. 47 and text; Note, 75 Yale 279 n. 79.

¹¹ Note, 75 Yale 278–9. See also Note, “Double Jeopardy: the Reprosecution Problem” (1964) 77 Harv.L. R. 1272, 1274.

¹² It should be pointed out that in the early stages of the development of the plea of autrefois acquit in England the plea was not accepted unless the defendant also pleaded not guilty.

¹³ Some authors conclude that the prohibition against multiple prosecution cannot therefore be justified. See Comely, , “Double Jeopardy” (1926) 35 Yale L.J. 674Google Scholar; Note, “Double Jeopardy and Multiple Count Indictment” (1947) 57 Yale L.J. 132, 133. The fallacy in the argument is the assumption that this consideration underlies the policy of the prohibition.

¹⁴ See R. v. Sheridan [1937] 1 K.B. 223. Cf. R. v. Grant [1936] 2 All E.R. 1156; 21 Am. Jur. 2d, 236 s. 175.

¹⁵ U.S. v. Ball 163 U.S. 622, 699; Downum v. U.S. 372 U.S. 734, 736.

¹⁶ Green v. U.S., 355 U.S. 184. See also e.g., Commonwealth v. Olds (1824) 5 Litt. 137; Ex parte lange (1873) 85 U.S. 872, 877; State v. Heiter (1964) 9 A.L.R. 3d, 195, 199; Perkins, Rollin U., Criminal Law and Procedure (2nd ed., 1959) 805Google Scholar; Slovenko, , “The Law of Double Jeopardy” (1956) 30 Tulane L.R. 409, 421Google Scholar; 4 Blackstone, , Commentaries, 335Google Scholar; Broom's, Selection of Legal Maxims (1939) 233Google Scholar; Hawkins, J. in Reg. v. Miles (1890) 24 Q.B. 423, 432–3Google Scholar; Connelly 409. See also The Am. Law Institute, Administration of the Criminal Law, Official Draft (Double Jeopardy) (1935) (hereinafter referred to as A.L.I. (1935)), sec. 5, comment, p. 10: “The Courts, feeling that fair play and public policy forbid prosecution of a person a second time in certain circumstances, and there being no rule of law prohibiting such prosecution, except the rule that no one shall be prosecuted twice for the ‘same offence’, were driven to say that two offences are the same in order to prevent a second prosecution”. And see the cases referred to therein, especially Smith v. State, 159 Ten. n. 674 (assault of A and causing the death of B were considered the same offence).

¹⁷ Tappan, Paul W., Crime, Justice and Correction (1960) 21.Google Scholar

¹⁸ Guttmacher, & Weihofen, , Psychiatry and the Law (1952) 438.Google Scholar

¹⁹ Bromberg, Walter, Crime and the Mind (1948) 26.Google Scholar Dr. Bromberg further remarks (at p. 27) that the professional criminal reacts differently; he would rather be ready to admit his criminal behaviour. Regarding it as an expression of self-importance he enjoys a feeling of superiority towards the police and other social institutions. For this type of offenders, then, criminal proceedings are not a source of anxiety but of self-assertion. Yet, should such opportunities for him be increased or rather diminished as well?

²⁰ Cf., U.S. v. Candelaria (1955) 131 F. supp. 797, 805. The defendant was sentenced by a federal court to five years imprisonment. Shortly after, the State of California obtained a detainer against him with the purpose of trying him once more after his release from prison. Upon the court's motion to modify one sentence, it was reduced to sixty days imprisonment.

²¹ See U.S. v. Oppenheimer (1916) 242 U.S. 85. Bechar v. A.G. (1952) 6 P.D. 415, 417.

²² Connelly, 429 (per Hodson L.J.).

²³ Connelly, 437.

²⁴ The maxim Res judicata pro vertate accipitur, from which it is easy to arrive at some form of rule against multiple criminal prosecutions, is mentioned by Ulpian (3rd cent. B.C.; Digest 50.17.207) and by his disciple Modestinus (ibid., 1.5.24). Ulpian adds (Digest 48.2.7) that charging a man again for an offence of which he was acquitted will not be allowed. (See also Paulus, a contemporary of Ulpian, ibid., 14). For similar provisions in Canon law see Pollock-Maitland, , The History of English Law (2nd ed., 1923) vol. 1, p. 448 n. 2.Google Scholar

²⁵ See Sigler, , “A History of Double Jeopardy” (1963) 7 Am. J. Legal Hist. 283.CrossRefGoogle Scholar

²⁶ 2 Pleas of the Crown (8th ed., 1824). It has been remarked that “This statement of the law has occasionally been elaborated, but never improved on”: Morris-Howard, 233–34. For a similar statement of the law see Archbold, , Pleading, Evidence and Practice in Criminal Cases (2nd ed., 1825), 53.Google Scholar

²⁷ See Stephen, , A History of the Criminal Law of England (1883) 219Google Scholar, for interesting statistics.

²⁸ 2 Hale, , Pleas of the Crown (1778) 224Google Scholar; 4 Blackstone's, Commentaries (1793) 336.Google Scholar

²⁹ 2 Pleas of the Crown (8th ed., 1824) 518. Emphasis added.

³⁰ Connelly, 433 (Per Lord Devlin). See also A.L.I. (1935), 31, §II: “Unless the two offences charged are the same in law and in fact, they are not the same offence”. The authors give a negative formulation, but the importance of this is not clear.

³¹ For an example of 26 different counts for a single act, see Stephen, op. cit., supra n. 27 at p. 290.

³² State v. Brook 94 A.L.R. 401, 405; and see Note, 75 Yale 269.

³³ (1857) Cox C.C. 481 n., 482–3. See also R. v. Kendrick and Smith [1931] All E.R. 851, 855.

³⁴ See, e.g., Clark (1820) 129 E.R. 804; see also Emden (1808) 103 E.R. 640.

³⁵ Connelly, 441. Compare by way of contrast the following: “The constitutional provision uses the word ‘offence’. Layman and lawyer alike understand the word ‘Offence’ to here mean a crime … The words ‘same offence’ mean same offence, not same transaction, not the same acts, not the same circumstances nor same situation. There is but one offence that is the same offence as ‘rape’ and that is ‘rape’ … We contend that there is nothing here for this court to construe … The utter folly and wholesale abuse of construing words that need no interpretation has led to much of the judicial confusion and most of the irreconcilable diversity of court decisions”: State v. Rose, 106 N.E. 50, 51–2.

³⁶ Connelly, 412 (per Lord Morris relying on R. v. Gould (1840) 173 E.R. 870 (see also R. v. Gilmore (1882) 15 Cox C.C. 85, 87) and R. v. Barron [1914] 2 K.B. 570, 574). Cf. D.P.P. v. Nusaralla [1967] All E.R. 161, 166 (in which it is restricted to general acquittals at p. 167). It is also the test under sec. 518 of the Canadian Criminal Code (see Tremar's, Annotated Criminal Code, Canada (6th ed., 1964) 914–15Google Scholar) and under secs. 358–359 of New Zealand's Criminal Act, 1961 (see Garrow, and Spence, , Criminal Law (4th ed., 1962) 317Google Scholar). See also Lansdown, , Outlines of South African Criminal Law and Procedure (2nd ed., 1960) 250.Google Scholar

³⁷ See 10 Halsbury, Laws of England (3rd ed., Simonds) p. 406Google Scholar, § 738, p. 428 § 791.

³⁸ R. v. Thomas [1949] 2 All E.R. 662; R. v. Salvi supra n. 33. 10 Halsbury Laws of England (3rd ed., Simonds) pp. 428–9 § 791, n. (f) and text.

³⁹ This was argued in Connell (1853) 6 Cox C.C. 170, but the court did not uphold it. See Napley, D., “Autrefois Acquit and Issue Estoppel” (1964) 108 S.J. 510, 518Google Scholar for another example.

⁴⁰ A criminal court in Israel may convict of any offence the commission of which is established by the evidence adduced during the trial (except for a restriction on conviction for felonies in lower courts) provided the defendant had proper opportunity to defend himself against such an offence. See the Israeli Criminal Procedure Law, 1965, secs. 166, 167, (ed. G.O.W. Mueller) in the American Series of Foreign Penal Codes, 1967 (no. 13); see also Shalgi, M., “The New Code of Criminal Procedure in Israel” (1966) 1 Is.L.R. 448, 458.Google Scholar

⁴¹ As is the situation in Israel: the courts will not use their wide powers to convict where the offence proved but not alleged in the indictment is of a different nature than that alleged.

⁴² See Diaz v. U.S., 56 2 L. ed. 500, 503.

⁴³ (1861), 121 E.R. 870, 872.

⁴⁴ R. v. Miles (1890) 24 Q.B. 423, 433. The defendant was first convicted of unlawful assault and beating. Afterwards he was charged on the same matter with unlawful and malicious wounding, inflicting grievous bodily harm, assaulting and causing actual bodily harm, and common assault.

⁴⁵ R. v. Thomas [1949] 2 All E.R. 662.

⁴⁶ See Williams J. in R. v. Friel (1890) 17 Cox c.c. 325, 326: “The indictment for manslaughter is not a charge in a new form based on the facts supporting the former charge, nor is it the former charge with the addition of matters of aggravation or of newly alleged consequences. It is a charge based on new facts; and the circumstance that some of those facts have been made the basis of a former charge of a different class is immaterial. The difference is not of degree merely. The characteristic new fact here is the death …”. No guidance however, was given to establish the difference between degree and kind. The clear impression is that the emotional element of the death of a person caused the court to regard a quantitative addition as a qualitative difference.

⁴⁷ 429, Per Hodson L.J.

⁴⁸ R. v. Thompson (1861), 9 Cox C.C. 70, 73. Another instructive example is R. v. Gilmore (1882) 15 Cox C.C. 85, 87–8: maliciously to do certain acts with the intention of endangering the safety of passengers using a railway, and to do the same acts and so endanger the safety of passengers etc., but without any intention of any such consequences ensuing, are totally distinct offences.

⁴⁹ Connelly, 433.

⁵⁰ Connelly, 429; R. v. Barren [1914] 2 K.B. 570, 576. See for still different formulations for what is in effect, the same rule in U.S. v. Mazrani (1947), 71 F. Supp. 615; People v. Greer (1947) 184 p. 2d 512.

⁵¹ Re Nielsen (1884) 131 U.S. 176, 178; And see A.L.I. (1935) p. 31, III.

⁵² Cf. Reg. v. Walker (1843), 174 E.R. 345, 348.

⁵³ Cf. Reg. v. Gilmore (1882), 15 Cox C.C. 85, 87–8.

⁵⁴ See Moore v. State, 71 Ala. 307, cited with approval in People v. McDaniels (1902) 69 p. 1006, 1008. See Freeman, , Treatise on the Law of Judgments (5th ed.) p. 1187Google Scholar § 559.

⁵⁵ Re Nielsen (1889) 131 U.S. 176, 190; Gray v. U.S. (1926) 14 F. 2d 366, 268.

⁵⁶ See People v. Brannon (1925) 233 P. 88, 90–91.

⁵⁷ Thus the Supreme Court of California quotes approvingly Bishop, New Criminal Law (§ 1057): “When he has been put in jeopardy for the lowest, then, for example is prosecuted for the highest, our constitutional guaranty stands in the way of his being convicted a second time for the lowest, for a jeopardy of the highest is equally a jeopardy of the lowest. And since the government confessedly cannot begin with the highest and then go down step by step, bringing the man into jeopardy for every dereliction included therein, neither can it begin with the lowest, and ascend to the highest, with precisely the same result”. People v. McDaniels (1902) 69 P. 1006, 1007. See also Blackburger v. U.S. (1932) 284 U.S. 299, 302.

⁵⁸ This variant was adopted in Israel, as the proper interpretation of a rule of autrefois acquit/convict based on the English model. A new statutory provision, defined in different terms,—see Criminal Procedure Law, 1965, sec. 2. ((1965) 19 L.S.I. 158)—has not yet been authoritatively interpreted.

⁵⁹ (1796) 168 E.R. 455. For earlier decisions applying behavioural tests, see Turner's case (1664) 84 E.R. 1068; James and Beaver's case (1665) 84 E.R. 1076; R. v. Seagar (1696) 30 E.R. 554 and The King v. Ladley (1782) 168 E.R. 224, and see Comment, 65 Yale 342 n. 5 and text.

⁶⁰ Ibid. In Connelly, 412 it is formulated thus: “one test whether the rule applies is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second offence, would have been sufficient to procure a legal conviction on the first indictment”. For a similar test in the United States see State v. Fredlund (1937) 113 A.L.R. 215, 218; Morgan v. Devine (1915) 273 U.S. 632, 641. (But cf., Swift J. in R. v. Kendrick and Smith, supra n. 33 at p. 855: “I emphasize the words: “the test is not, in our opinion, whether the facts relied upon are the same in the two trials”.) This test is sometimes called “the same evidence test”. The difference of basing the test on the same facts or the evidence is of no real consequence except in very rare cases indeed, as when certain facts are presumed by law, in which case proof is not necessary. The courts rather regard the “same evidence” and the “same facts” test as identical. See Wentworth v. Mathieu [1900] A.C. 212, 218, and Note, “Double Jeopardy and the Multiple-Count Indictment” (1947) 57 Yale L.J. 132, 136.

⁶¹ Wharton, , Criminal Law (12th ed.) § 394, p. 534.Google Scholar The second alternative was applied in one of the early American cases which discussed the question: “A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence. A single act may be an offence against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution, and punishment under the other”: Morey v. Commonwealth (1871) 108 Mass. 433 (Quoted from State v. Brooks 94 A.L.R. 401, 405). See also People v. Spreckels (1954) 270 P. 2d 513.

⁶² Cf. “Double Jeopardy and the Multiple-Count Indictment” (1947) 57 Yale L.J. 132, 136; Note, 75 Yale 269–70; Comment, “Successive Prosecutions Based on the Same Evidence as Double Jeopardy” (1931) 40 Yale L.J. 462, 463 n. 4 and text.

⁶³ See 10 Halsbury Laws of England (3rd ed., Simonds) § 737, p. 406. The impression is as if the test applied in England is the same facts test, but from the authorities cited it is clear that the applied test is that of the same offences.

⁶⁴ (1914), 143 p. 64.

⁶⁵ Though the court uses terms of behavioural tests, it is clear from the latter part of the judgment that it refers to the same evidence test.

⁶⁶ 146 P. 64, 66. Another interesting example is Martinis v. Supreme Court (1965) 206 N.E. 2d 165. But cf. Swift, J. in R. v. Kendrick and Smith supra n. 33 at p. 752: “…it may well be that the evidence before the Court shows that both these offences have been committed, but that does not make them the same offence”.

⁶⁷ See, e.g., People v. Brannon (1925) 233 P. 88.

⁶⁸ Another example: in a charge of rape it is not necessary to prove the age of the victim. If, however, it is incidentally proved that the victim is a minor the defendant cannot be charged again of rape of a minor; but if the age is not referred to he could be so charged. Proof of age is not necessary for rape, while for rape of a minor proof of non-consent is not required.

⁶⁹ See supra n. 67.

⁷⁰ 1 Q.B. 214, 218.

⁷¹ In other reports the language is different (cf. 18 Cox 447). Similar opinion is expressed by Cave, J. (at p. 218). Lord Reading in R. v. Barton (supra n. 36), Emund-Davies, J. in R. v. Connelly, (supra n. 6) and Lord Morris of Borth-y-Gest in Connelly 422-D, take Hawkin's dictum as applying to other doctrines or different tests. It does not seem that they are correct.

⁷² State v. Winger (193B) 119 A.L.R. 1202. Cf. Comment, “Successive Prosecutions Based on the Same Evidence as Double Jeopardy” (1931) 40 Yale L.J. 462, 463.

⁷³ In R. v. Schwartz (1941) 75 C.C.C. 203 (Canada) the defendant was charged in 15 different indictments for unlawfully acquiring 15 bear skins.

⁷⁴ See supra n. 60. See also R. v. Dagnes (1839) 3 J.R. 293 (a case of poisoning wife and son).

⁷⁵ See also State v. Corbett (1921) 20 A.L.R. 328 and cases referred to in Annotation at p. 341. The court attempted to justify its decision in Fredlund, in spite of its view on splitting trials on the basis of the objects affected, by pointing out that the defendant's position in respect of criminal responsibility should not be better than that in respect of civil liability. Failure of a suit against him for damages for the death of the mother would not bar a similar suit for the death of the son. “Surely the wrong to an individual should not be placed upon a higher plane than the same criminal act which gave rise to civil liability” (Fredland supra n. 60 at p. 220). The analogy cannot be accepted. The citizen claiming his rights and the State exacting justice should not be put on equal footing. A greater degree of fairness and proper conduct is demanded from the State than from the citizen. The idea that whatever is proper in civil cases is also proper in criminal cases is untenable. To give just one example—the onus of proof in criminal trials is more demanding than in civil cases. A better justification of the decision in Fredlund is that for reasons of sanctity of life we may except cases of multiple homicide, although it is arguable whether greater criminal responsibility justifies multiplicity of prosecutions.

⁷⁶ District of Columbia v. Buckley (1942) 128 F. 2d 17, 21 (Rutledge J.).

⁷⁷ See Smith J. in Holder v. Fraser (1949) 219 S.W. 2d 525, 626: “The situation in which a single act has caused several injuries or deaths has created two lines of authority in the American decisions. Doubtless this disagreement is occasioned by the fact that this situation lies at the intersection of conflicting principles of public policy. On the one hand, the apparent injustice of trying a man repeatedly for the consequences of a single action has led many courts to hold that there is only one offence. On the other, the natural inclination to attach greater gravity to the killing of several persons than to the killing of one has been emphasized by other courts in finding multiple offences in the same act”.

⁷⁸ ibid., at p. 222.

⁷⁹ See, e.g. State v. Wheelock (1933), 250 N.W. 617.

⁸⁰ See Note, 75 Yale 274: “Attempting to choose which version of the same evidence test would best implement the double jeopardy prohibition is like deciding which of five lumberjacks would be most handy with a violin. Even the best same evidence test is insensitive to the policies of the double jeopardy clause”.

⁸¹ The reference is to the several variants of the “same offence” and “same facts” tests.

⁸² Kircheimer, , “The Act, the Offence and Double Jeopardy” (1949) 58 Yale L.J. 513, 529.CrossRefGoogle Scholar

⁸³ State v. Mowser (1919), 4 A.L.R. 695.

⁸⁴ (1867), 10 Cox C.C. 480.

⁸⁵ (1875) 10 Q.B. 378.

⁸⁶ [1969] 1 W.L.A. 745.

⁸⁷ (1958), 358 U.S. 169. See also People v. Kehoe (1949) 204 P. 2d, 321; State v. Mowser, supra, n. 83 at p. 695.

⁸⁸ Thus a conviction for setting business premises on fire was held a bar to a prosecution for destroying insured property on the premises: Worley v. State (1929) 275 P. 399.

⁸⁹ State v. Mowser, supra n. 83. See also State v. Cooper (1833) 13 N.J.L. 361.

⁹⁰ Note, 75 Yale 276; see Kircheimer, op. cit., 524–25.

⁹¹ Ladner v. U.S. (1958) 358 U.S. 169.

⁹² State v. Corbett (1921) 20 A.L.R. 328; Cowles v. Commonwealth (1935) 83 S.W. 2d 46.

⁹³ “We should not be surprised that presenting a forged check to a cashier and accepting the cash, for example, are two acts in Virginia, though they would be one in California”. Note, 75 Yale, 276.

⁹⁴ Thompson v. State (1952) 244 S.W. 2d 832; Fears v. State (1944) 178 S.W. 2d 530.

⁹⁵ Comment, 65 Yale 348.

⁹⁶ Cf. Crumley v. City of Alabama (1942) 22 E.E. 2d, 181, 183.

⁹⁷ See People v. Brown (1958) 320 P. 2d 5, 14.

⁹⁸ Thompson v. State (1952) 244 S.W. 2d 832; Re Chapman (1954) 273 P. 2d 817.

⁹⁹ Cf. Harris v. State (1941) 17 S.E. 2d 573, 578; People v. Brain (1925) 241 P. 913, 914.

¹⁰⁰ Neal v. State (1961) 357 P. 2d 839, 843.

¹⁰¹ In Short v. U.S. 91 F. 2d 614, 620, the prosecution pointed to five differences between the first and the second indictment, as to time, place, co-offenders, overt acts and offences. The court said: “We agree that these differences make it impossible to say as a matter of law upon the face of the indictment that they relate to the same conspiracy; but we think that because of the generality of the language used it is likewise impossible to say upon the face of the indictment that they do not relate to the same conspiracy”.

¹⁰² See Comment, 65 Yale 348–9.

¹⁰³ See Note, “The Identity of Criminal Offences” (1907) 20 Harv. L.R. 642, 643, n. 8.

¹⁰⁴ “(T)he quest for a statute's distinct evil often begins with the conclusion”: Note, 75 Yale 320, and ibid., n. 388. See also State v. Porook 94 A.L.R. 403–404: the defendant was tried, for living with a woman other than his wife, first for adultery and subsequently for lewd and lascivious behaviour, these being considered by the court as founded on different public interests (!).

¹⁰⁵ To the extent of imposing double, triple and quadruple punishment on a defendant—see description of Ciucci v. Illinois (1956) 137 N.E. 2d 40, and Williams v. Oklahoma (1957) 321 P. 2d 990, in Note, 75 Yale 281–3. See also Comment, 65 Yale 349.

¹⁰⁶ The problem of double-punishment arises here, but it is a mistake in method to solve it by means of the prohibition against double prosecution.

¹⁰⁷ Against double jeopardy: District of Columbia v. Buckley (1942) 128 F. 2d 17, 21. See also Brennan J. in Abbot v. U.S. (1953) 3 L. ed. 729, 737.

¹⁰⁸ At p. 406. For a South African ruling on such a line see Lansdown, , Outlines of South African Criminal Law and Procedure (2d., 1966) 251.Google Scholar

¹⁰⁹ At p. 441. See similar opinions of Lord Pearce, at pp. 446 and 451 and of Lord Morris of Borth-y-Gest at p. 417.

¹¹⁰ Indictment Act, 1915, Sched. 1, r. 3. See Archbold, , Pleading Evidence and Practice in Criminal Cases (36th ed.) § 130.Google Scholar

¹¹¹ For the U.S. see Federal Rules of Criminal Procedure, Rule 8(a); Orfield, , Criminal Procedure Under the Federal Rules (1966)Google Scholar § 8:36, 8:48, 8:51–53. As to the States, see Note, 75 Yale 294 n. 138 and text; Comment, 65 Yale 359 n. 96. Sec. 76 of the Israel Criminal Procedure Law, 1965 provides: “Any number of charges may be joined in the same statement of charges if based on the same facts or similar facts or on a series of acts so connected with each other as to constitute a single affair…” In Canada and South Africa, however, joinder is not restricted.

¹¹² Still earlier the court in U.S. v. Dockery (1943) 49 F. Supp. 907, 908, expressed a similar idea. See also Note, 75 Yale 269.

¹¹³ Sec. 1.09 and 1.10(1)(c) provide for restrictions on separate prosecutions for joinable charges. Sec. 1.07(2) of The American Law Institute, Model Penal Code, Official Draft (1962) (hereinafter referred to as A.L.I. (1962), provides, however, that “a defendant shall not be subject to separate trials for multiple offences based on the same conduct or arising from the same criminal episode”. A compulsory rule of joinder with a power to the court to order separation has been enacted in Illinois:

III. Rev. Stat. Chap. 38, sec. 3–3, 3–4 (1961).

¹¹⁴ See (1962) 71 Yale L.J. 1050, 114 n. 68, 115. See also secs. 61, 63, 65 and 66.

¹¹⁵ See (1962) 71 Yale L.J. 1050, 114 n. 68 and sec. 62 of the proposed Code. Two important points, however, in the Model Penal Code are missing in Dession: the exception to the compulsory joinder where sufficient relevant facts are not known to the prosecuting authorities, and that the court may allow separate trials for justified reason.

¹¹⁶ A.L.I. (1956) p. 34, 37.

¹¹⁷ An indictment filed in Tel-Aviv District Court in 1965 (in State of Israel v. Goldenberg and Socher (unpublished) contained some 433 charges).

¹¹⁸ Where the facts give rise to charges of numerous offences the prosecution should not charge each possible offence of several closely related ones but choose among them. See on this usage in the United States Note, 75 Yale 294 n. 140 and text, and especially pp. 295–6 n. 143 and text. See also for Israel Zoabi v. A.G. (1962) 16 P.D. 1240, 1247.

¹¹⁹ See Note, 75 Yale 296 ff. on the development of the rule of joinder in respect of the doctrine of res judicata in civil cases, and the author's opinion: “at one time the law of res judicata resembled the law of double jeopardy. But res judicata matured in a way that double jeopardy must now follow”.

¹²⁰ See Martin, , Annual Criminal Code (1966) 467.Google Scholar

¹²¹ Which prohibits joinder of another charge to one of murder.

¹²² See Lansdown, , Outlines of South-African Criminal Law and Procedure (2d ed., 1960) 230, 144Google Scholar, although in his opinion—“Where, however, the acts alleged against the accused do not constitute crimes of the same class nor form part of one series, and are thus entirely unconnected in point of time, place or other circumstance, it will usually be found to be the better and more convenient course not to join them in one indictment or charge”: ibid., 230.

¹²³ See Saleilles, R., Individualization of Punishment (London, 1911)Google Scholar chap. 1 and esp. § 62, 63. Dession's proposed Code is founded on the same approach—see Comment, 65 Yale, 356 n. 84, 357. See also Allen, A., “Criminal Justice, Legal Values and the Rehabilitative Ideal” (1958) 50 J. Crim. L.C. & P.S. 226.Google Scholar

¹²⁴ See also Note, 75 Yale 296 n. 144: “Compulsory joinder will also promote consistent and rational sentencing. One sentencer, judge or jury, will evaluate all the conduct, rather than several sentencers evaluating different aspects of it”.

¹²⁵ In Israel this is the case in respect of “military offences” (tried by courts martial) and “civil offences” (tried by civil courts). The problem is less acute in respect of territorial jurisdiction.

¹²⁶ At p. 412.

¹²⁷ See, however, 21 Am. Jur. 2d, Criminal Law § 9; Freeman, , A Treatise on the Law of Judgments (5th ed., 1925) § 559Google Scholar; but see also 9 A.L.R. 3d, 223 n. 20.

¹²⁸ But they should be clearly distinguished, otherwise confusion results. Cf. Note, 75 Yale 262, 283 n. 105; Street, , “Estoppel and the Law of Negligence” (1957) 75 L.Q.R. 358–9Google Scholar; Spencer-Bower, , Res Judicata (1924) 297–8.Google Scholar See also Freeman, op. cit., § 648 n. 178, and Harnon, , “Res Judicata and Identity of Actions, Law and Rationale” (1966) 1 Is.L.R. 539.Google Scholar

¹²⁹ See U.S. v. Kramer (1961) F. 2d 909, 916, where the court even identified the policies of the two doctrines; see also A.G. v. Juaia (1960) 14 P.D. 1093, 1098, for an Israel case.

¹³⁰ Connelly, 434. See also U.S. v. Rangel-Perez (1959) 170 F. Supp. 619, 625; Freeman, op. cit., § 627. Morris & Howard propose to reduce the plea of autrefois acquit to that of issue estoppel, and treat autrefois convict as based on a different doctrine. This proposal cannot be accepted, at the very least for the simple reason that it narrows the protection. It will work either when the offences charged in the consecutive trials are identical or have some common element and the acquittal is based on a finding in respect of such element. If it is based on failure to prove an element which is not common, no estoppel can be claimed. Such a result would be contrary to the general policy against harassment by reprosecution.

¹³¹ Cf. Gershenson, , “Res Judicata in Successive Criminal Prosecutions” (1957) 24 Brooklyn L.R. 12 n. 1.Google Scholar

¹³² See Sambasiuam v. .Public Prosecutor, Federation of Malaya [1950] A.C. 458, 479.

¹³³ A.G. v. Juaia, supra n. 129 at pp. 1098, 1100–1101.

¹³⁴ Cf. Vestal, and Coughenour, , “Preclusion/Res Judicata Variables: Criminal Prosecutions” (1966) 19 Vanderbilt L.R. 683, 691–2.Google Scholar A finding of a fact in pre-trial proceedings does not constitute an estoppel in a criminal trial: Tell v. Wolke (1963) 124 N.W. 2d 655.

¹³⁵ See, e.g., Thoday v. Thoday [1964] P. 181, 197.

¹³⁶ At pp. 434 and 436. A third variant would not only preclude an inconsistent allegation but also any piece of evidence which contains a contradictory statement. See Sambasivam v. Public Prosecutor, Federation of Malaya supra n. 132 at p. 479. Kemp v. The King (1951) 83 C.L.R. 341. Such a plea was rejected in R. v. Ollis [1900] 2 Q.B. 758. For assertive approach to it in the United States, see State v. Little (1960) 350 P. 2d 756, 762. We do not discuss this variant, since it concerns the question of admissibility of evidence rather than preclusion of charges.

¹³⁷ [1897] 1 Q.B. 214. Justice Holmes, in U.S. v. Oppenheimer (1916) 242 U.S. 85, 88, regards the following dictum of Hawkins J. in Reg. v. Miles (1890) 24 Q.B. 423, 431 as an earlier instance: “Where a criminal charge has been adjudicated upon…the adjudication, whether it takes the form of an acquittal or a conviction, is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offence… In this respect the criminal law is in unison with that which prevails in civil proceedings”. This dictum, however, concerns the finality of a judgment not the principle of consistency. Gershenson, , “Res Judicata in Successive Criminal Proceedings” (1957) Brooklyn L.R. 12, n. 4Google Scholar and text mentions R. v. Duchess of Kingston (1776) 20 Harv. St. Tr. 355 as the forerunner of the present rule.

¹³⁸ (1948) 77 C.L.R. 511, 518–9. Morris-Howard 223 n. 2, mentions another Australian case of 1914 which applied the rule. A similar rule has been applied in Canada in McDonald v. Reg (1960) 126 C.C.C. 1, 18: “the principle of res judicata… only estops the Crown in the later proceedings from questioning that which was in substance the ratio of and fundamental to the decision in the earlier proceedings”. Tremlear, , Annotated Criminal Code (Canada, 6th ed., 1964)Google Scholar mentions R. v. Quinn (1905) as applying the same rule.

¹³⁹ The use of terms is not consistent. A clear distinction between the doctrines is found, for example, in U.S. v. Rangel-Perez (1959) 179 F. Supp. 619.

¹⁴⁰ See also U.S. v. Wainer (1954) 211 F. 2d 669, 672: “only those issues which were indispensable to the verdict may be regarded as having been determined”.

¹⁴¹ Hoag v. New Jersey (1958) 2 L. ed. 913, 919. See also U.S. v. Ramgel-Perez, supra n. 139 at n. 205; see 9 A.L.R. 3d 230–232 for cases where State courts have observed, even recently, that these are exceptions to the general opinion in those very States which applied the doctrine.

¹⁴² A.L.I. (1956) 55–6.

¹⁴³ Thoday v. Thoday [1964] P. 181, 198; Fidelitas Shipping Co. Ltd. v. V/O Exportchelb [1966] 1 Q.B. 630, 640; Carl Zeiss Stiftung v. Rayner and Keeler Ltd. [1967] A.C. 853, 916.

¹⁴⁴ See Schneiderman v. U.S. (1957), 354 U.S. 298.

¹⁴⁵ This question has been settled authoritatively in The Evergreens v. Nunan (1944) 141 F. 2d 927. The reasoning for the rule at p. 928 is instructive. This judgment was confirmed by the Supreme Court (323 U.S. 720). The Note in 9 A.L.R. 3d, 235 does not reveal further developments.

¹⁴⁶ State v. Thompson (1949) 241 Iowa 16, 39 N.W. 2d 637 (referred to here as described in 9 A.L.R. 3d, 235).

¹⁴⁷ Gershenson, , “Res Judicata in Successive Criminal Prosecutions” (1957) 24 Brooklyn L.R. 12, 28.Google Scholar

¹⁴⁸ (1924) 266 U.S. 236.

¹⁴⁹ (1916) 93 Misc. 692.

¹⁵⁰ Op. cit. supra n. 147 at p. 31.

¹⁵¹ 1.09, 1.10. See Gershenson, op. cit. supra n. 147 at p. 28 on the distinction between the doctrine of estoppel and the doctrine of “the law of the case”. See also U.S. v. Kramer (1916) 289 F. 2d 909, 913.

¹⁵² These are American cases cited infra. No English or Australian cases have been found except Lord Devlin's criticism in Connelly. Morris-Howard point to the same at p. 253.

¹⁵³ Petitio principi! See U.S. v. Carlisi (1940) 32 F. Supp. 479, 488; Rouse v. State (1953) 97 A.L.I. 2d 285.

¹⁵⁴ U.S. v. Rangel-Perez supra n. 139 at p. 625.

¹⁵⁵ People v. Mojado (1937) 70 P. 2d 1015.

¹⁵⁶ State v. Sargood (1907) 68 AH. 51. See also State v. Brown (1942) 23 S.E. 381, and for other precedents 9 A.L.R. 3d, 21 § 9; Note, 75 Yale n. 144.

¹⁵⁷ At p. 437.

¹⁵⁸ [1967] 2 Q.B. 459.

¹⁵⁹ This is also the conclusion in Archbold, , Pleading, Evidence and Practice in Criminal Cases (37th ed.) § 458.Google Scholar

¹⁶⁰ The same objection was made earlier by American authors e.g., Gershenson, , Comment, “Recent Developments” (1959) 59 Col. L.R. 803, 813.Google Scholar

¹⁶¹ The Court of Appeal reversed the lower court because of improper direction to the jury and a plea of alibi.

¹⁶² At p. 436. See also at p. 422 (Lord Morris) and at p. 450 (Lord Pearce).

¹⁶³ See A.L.I. (1956) §§ 1.09, 1.10: “…the former prosecution was terminated… by a final order or judgment… which necessarily required a determination inconsistent with a fact…”; and Comment, “Res Judicata—Collateral Estoppel” (1967) 42 N.Y.U.L.R. 571, 572, 574.

¹⁶⁴ See ibid., 572: “Such a test, if taken literally, would eliminate the doctrine as an aid to criminal defendants in most instances, except when a special verdict is used. Some courts apparently have applied this test literally, dismissing a plea of collateral estoppel in summary fashion, reasoning that the general verdict masks which of the multiple elements the jury found not proved”.

¹⁶⁵ Ibid., 574–5.

¹⁶⁶ Ibid., passim. In the United States it is permitted to call a Judge and members of the jury to give evidence in order to decide what was found by them in the former trial: see Gershenson, op. cit. at p. 17 nn. 24, 32 and text, and 9 A.L.R. 3d 241 §8. A.L.I. (1956) §§ 1.09, 1.10 (see supra n. 163) includes no provision in this point. This seems strange, as the value of the plea changes according to the technique applied for the identification of the determinations in the former trial. In A.L.I. (1962) §§ 1.08, 1.09 there is no improvement on this point.

¹⁶⁷ Brown v. Robinson (1960) S.R., N.S.W. 297, 306; Reg. v. Clift (1952) 69 W.N. (N.S.W.) 87, but see Morris-Howard, p. 229.

¹⁶⁸ See per Silberg J. regarding the doctrine in civil cases, Felman v. Shakow (1952) 6 P.D. 313. See also Morris-Howard, pp. 229–30.

¹⁶⁹ Mraz v. The Queen (No. 2) (1956) 96 C.L.R. 62 (Hereinafter Mraz).

¹⁷⁰ Comment, “Res Judicata in Successive Criminal Prosecutions, Hoag v. State of Nezv Jersey and a Proposal” (1958) 24 Brooklyn L.R. 33–4.

¹⁷¹ (1956) Tas. S.R. 95 (referred to here from the account in Morris-Howard, p. 225).

¹⁷² The Evergreens v. Nunan (1944) 141 F. 2d 927, 929.

¹⁷³ “Whatever is settled by a judgment is the result of an investigation conducted under the most favorable rules that mankind has been able to devise for exposure of falsehood and the ascertainment of the truth. Unless the law is much less “than the perfection of human wisdom”, this result can rarely be inconsistent with truth. In the common as in the civil law “the authority of res judicata induces a presumption that everything contained in the judgment is true, and this presumption, being juris et de jure, excludes every proof to the contrary”: Freeman, , A Treatise of the Law of Judgments (5th ed., 1925) § 624Google Scholar (quoting Pothier). “If a competent court has once decided a question, it seems to me that the presumption should be that their decision is the truth” (The Queen v. Hutchins [1880] 5 Q.B.D. 353, 358). In Israel this view has been expressed several times: Mugrabi v. Varaimon (1957) 11 P.D. 1242, 1250; Knopf v. Popper (1956) 10 P.D. 785, 793.

¹⁷⁴ Aharonst v. Neuman (1956) 10 P.D. 1121, 1140. “The record of the conviction itself would show no more than that the defendant was convicted for so driving on a certain day… In truth, the conviction is only proof that another court considered, that the defendant was guilty of careless driving”: per Lord Goddard L.J. in Hollington v. Hewthorn [1943] 1 K.B. 587, 594. “I am not aware of any authority which shows that an acquittal conclusively establishes more than that some element, which often it would be quite impossible to identify, which is necessary to constitute the offence charged has not been proved”: per Latham, J. in R. v. Wilkes (1948) 77 C.L.R. 511, 515.Google Scholar See also State v. Fredlund (1937), 113 A.L.R. 215, 219; Dunn v. U.S. (1931) 284 U.S. 390, 393

¹⁷⁵ Frank, Jerome, Courts on Trial (1950) 23–24, 27.Google Scholar

¹⁷⁶ For an illuminating instance on this point see Maor Mizrahi v. A.G. (1960) 14 P.D. 1882, 1886.

¹⁷⁷ On this point, see Ginossar, S., Renewal of Actions in Studies in Law, Scripta Hierosolymitana V (1958) 47, 49.Google Scholar

¹⁷⁸ At pp. 408 and 437.

¹⁷⁹ (1881–85) 10 A.C. 210, 220.

¹⁸⁰ See Connelly 409 and 430; 430 per Mills v. Cooper [1967] 2 W.L.R. 1343, 1349. See also Lord Reading's comment in R. v. Barron [1914] 2 K.B. 570, 575, and Lord Hudson's in Connelly, 431 in respect of R. v. King [1897] 1 Q.B. 214.

¹⁸¹ On the possibilities of applying the Fourteenth Amendment to bar a prosecution subsequent to a former one, see U.S. v. Wilkins (1965) 348 F. 2d, 844, 849–50; Annotation, 2 L. ed. 2d 2020, 2021, 2023 [9].

¹⁸² (1958) 2 L. ed. 913, 917.

¹⁸³ Defined as “a hardship so acute and shocking that our polity will not endure it”: Palko v. Connecticut (1937) 82 L. ed., 288, 293.

¹⁸⁴ Annotation, 2 L. ed. 2d, 2021. In many cases, however there was a strong minority opinion for the contention that the process in question involved a violation of the due process clause: see Hoag, ubi supra; Ciucci, ubi supra; Brock v. North Carolina (1953) 344 U.S. 424.

¹⁸⁵ (1965), 348 F. 2d 844, and especially 850 4.

¹⁸⁶ At p. 432.

¹⁸⁷ Nepley, D., “Autrefois Acquit and Issue Estoppel” (1964) 108 S.J. 510, 512.Google Scholar

¹⁸⁸ See Morris-Howard, p. 253. In their opinion the courts already exercise such a judicial discretion, in practice if not in law, in order to prevent improper proceedings or to allow proper proceedings in spite of ensuent law, when they interpret broadly or narrowly Hawkin J.'s formula “substantially the same offence” in respect of autrefois acquit/convict.