ROBERT CHESTER GALLOWAY, PLAINTIFF-APPELLEE,
v.
DR. GEORGE J. BETO, DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS, DEFENDANT-APPELLANT
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The court held that a retrial for murder with malice after an initial jury convicted the defendant of murder without malice and declared a mistrial on the malice charge violates the Double Jeopardy Clause.
Galloway was convicted of murder without malice, but a mistrial was declared due to jury deadlock on punishment. On retrial, he was convicted of murde…
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PER CURIAM:
The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.
. 3 Vernon’s Texas Code of Criminal Procedure Art. 37.07(2) (b) (1965).
. Under the provisions of 3 Vernon’s Texas Code of Criminal Procedure Art. 37.07 (2) (d) (1965), providing that in such an instance “no jeopardy shall attach.”
. Booker v. Phillips, 418 F. 2d 424 (1969). Contra, Spidle v. State, 446 S.W. 2d 793 (Mo.S.Ct. 1969).
. No other procedural barriers stand in the way of Galloway’s assertion of his double jeopardy defense. Defense counsel’s written consent to the mistrial does not amount to a waiver of the double jeopardy plea, since the protections of Benton had not yet been announced. A waiver of a constitutional right is ineffective unless made knowingly. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Defendant’s failure to comply with Texas procedure for raising a plea of double jeopardy did not bar his assertion of that federal defense. Galloway sufficiently raised that issue by his pre-trial motion to strike that part of the indictment which charged him with murder with malice and by his submission of affidavits relating the circumstances of the first trial.
. The state calls our attention to Walton v. Beto, (Oiv.No.4989, E.D.Tex., June 5, 1969), which relied on Welcome in upholding a conviction similar to Galloway’s. The district court in Walton did not have the benefit of Benton, which later that month applied federal double jeopardy standards to state prosecutions.
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United States v. Augustus Charles Bobo, 586 F.2d 355 (5th Cir. 1978)
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McNEAL v. Hollowell, 481 F.2d 1145 (5th Cir. 1973)
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Augustine Rivera Tisnado v. United States, 547 F.2d 452 (9th Cir. 1976)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (24 total)
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966)
- Johnson v. Zerbst, 304 U.S. 458 (U.S. 1938)
- Gideon v. Wainwright, 372 U.S. 335 (U.S. 1963)
- Bruton v. United States, 391 U.S. 123 (U.S. 1968)
- Stovall v. Denno, 388 U.S. 293 (U.S. 1967)
- Mapp v. Ohio, 367 U.S. 643 (U.S. 1961)
- Johnson v. New Jersey, 384 U.S. 719 (U.S. 1966)
- Linkletter v. Walker, 381 U.S. 618 (U.S. 1965)
- Benton v. Maryland, 395 U.S. 784 (U.S. 1969)
- Green v. United States, 355 U.S. 184 (U.S. 1957)