Indiana Law Review


Coinment

Reversals for Insufficient Evidence:
The Emerging Doctrine of Appellate Acquittal

Charles A. Thompson*

I. Introduction

The traditional relief demanded and received upon appellate
court reversal of a criminal conviction has been remand for a
new trial. Although it is generally considered to be within an
appellate court's power to order an appellant discharged by enter-

ing a judgment of acquittal, this power is exercised sparingly

and only in cases in which remand for a new trial is barred by
some constitutional or statutory rule of law.' In recent years

Assistant Professor of Law, The Ohio State University College of Law.
B.S., Ball State University, 1965; J.D., Indiana University, 1969; L.L.M., New
York University, 1970.

'Among others, retrial could be barred by reason of a statute of limita-
tions or because of a denial of the accused's right to a speedy trial or the

privilege against double jeopardy. Once there has been an adjudication that
prosecution of the crime is barred by the statute of limitations, principles of
res judicata preclude a second litigation of the issue. United States v. Oppen-

heimer, 242 U.S. 85 (1916). Similarly, dismissal for denial of the right to

speedy trial is a bar to further prosecution. See State v. Taylor, 235 Ind.

632, 137 N.E.2d 537 (1956); State v. Soucie, 234 Ind. 98, 123 N.E.2d 888

(1955). But when there is a pretrial dismissal of the prosecution before
jeopardy has attached, the State may take a direct appeal from the ruling
and, if successful, the defendant is subject to retrial. It is only when the
dismissal stands on appeal that res judicata precludes a second prosecution.

Accordingly, Ind. Code § 35-1-47-4 (Ind. Ann. Stat. § 9-2307, Burns 1956)
provides

:

An appeal taken by the state shall in no case stay, or affect the
operation of the judgment in favor of the defendant until the judg-
ment is reversed: Provided, That if an appeal be taken by the state
from an order or judgment by which the defendant is discharged
prior to trial, the said order or judgment shall not be or constitute
a bar to further prosecution of the defendant, if said order or judg-
ment is reversed, and the trial court shall order a warrant to issue
for his re-arrest, returnable forthwith.

It is quite a different matter, however, if the dismissal order is entered after
jeopardy has attached, i.e., after the jury is sworn or, in the case of a trial
to the court, after the first witness is sworn. See, e.g., Kelley v. State, 295

497



498 INDIANA LAW REVIEW [Vol. 8:49'

courts have begun to address the queston of whether appellate
acquittal is appropriate when the evidence adduced against the
defendant at trial is found to be insufficient to sustain a criminal
conviction. On the theory that such a defendant was entitled to
an acquittal in the trial court and, therefore, should be granted
an acquittal at the appellate level, the appellate courts of a few
states now order defendants discharged without remanding the
cases for retrial. Furthermore, the appellate acquittal has the
same effect as an acquittal in the trial court: retrial is barred
by reason of the constitutional prohibition against double jeopardy.
The precise issue addressed in this Comment is whether Indiana
should join the growing number of states which have adopted
the emerging doctrine of appellate acquittal.

Whether a finding of insufficient evidence on appeal consti-
tutes a double jeopardy bar to retrial for the same offense has
not been decided by the Indiana courts. That the issue has not
been fully considered may, in part, be the result of the reluctance
of appellate courts to review the fact-finding process which
occurred at the trial. It is a basic principle of Indiana appellate

procedure that a reviewing court will not reconsider issues of

fact decided against the defendant at trial. The presumptions
are in favor of the decision of the lower court; if there is any
evidence in the trial court record to support the verdict and

judgment, the conviction will be sustained regardless of the weight

and credibility of the evidence. It is the function of the trier of

fact to evaluate the demeanor and credibility of witnesses and

ultimately determine the truth, a task for which appellate courts

are particularly unsuited. Accordingly, it is the established rule

in Indiana that the reviewing court will consider only the evidence

most favorable to the State in determining the sufficiency of the

N.E.2d 372 (Ind. Ct. App. 1973) ; Crim v. State, 294 N.E.2d 822 (Ind. Ct.

App. 1973) ; Armentrout v. State, 214 Ind. 273, 15 N.E.2d 363 (1938) ; Joy v.

State, 14 Ind. 139 (1860); Weinzorpflin v. State, 7 Blackf. 186 (Ind. 1844).

See also United States v. Jorn, 400 U.S. 470 (1971). After jeopardy has at-

tached, the judgment may constitute an acquittal, in which case the State may
not appeal for the purpose of gaining a new trial. See, e.g., State v. Newkirk,
80 Ind. 131 (1881) ; State v. Davis, 4 Blackf. 345 (Ind. 1837). See also United

States V. Sisson, 399 U.S. 267 (1970) (government may not appeal from so-
called order in arrest of judgment which in reality is a judgment of acquit-
tal). Even when an appeal is authorized as a reserved question under iND.
Code § 35-1-43-2 (Ind. Ann. Stat. § 9-2102, Burns, 1956), a judgment on ap-
peal in favor of the State does not act to reverse the judgment of acquittal
below and the defendant may not be tried a second time. See, e.g.. State v.
Patsel, 240 Ind. 240, 163 N.E.2d 602 (1960) ; State v. Torphy, 217 Ind. 383, 28
N.E.2d 70 (1940) ; State v. Kubiak, 210 Ind. 479, 4 N.E.2d 193 (1936) ; State v.
McCaffrey, 181 Ind. 200, 103 N.E. 801 (1914).



1975] APPELLATE ACQUITTAL 499

proof to support a judgment of conviction.^ Thus, while a trial
court, upon a request for a new trial, may sit as the "thirteenth
juror" and weigh the evidence, courts of appellate jurisdiction
regularly refuse frequently tendered invitations to do so.^

""See, e.g., Richardson v. State, 247 Ind. 610, 220 N.E.2d 345 (1966)

;

Bush V. State, 246 Ind. 574, 207 N.E.2d 625 (1965) ; Schweigel v. State, 245

Ind. 6, 195 N.E.2d 848 (1964); Blood v. State, 214 Ind. 578, 16 N.E.2d

874 (1938).

It should be noted that the standard of review in Indiana is less favorable

to the accused than it is in many other jurisdictions. For example, in Florida
the courts on appeal will reverse judgments of conviction even if the evidence

is legally sufficient but is so weak that retrial should be granted in the in-
terest of justice. The rule frequently is invoked in cases of convictions for
sex offenses when the State's evidence consists chiefly of the testimony of
the prosecuting witness. See Sosa v. Maxwell, 234 So. 2d 690 (Fla. Ct. App.

1970) ; Smith v. State, 239 So. 2d 284 (Fla. Ct. App. 1970). In Indiana, how-

ever, the courts will reverse only when the evidence is insufficient as a matter
of law, in which case reversal is required as a matter of due process of law.

See note 5 infra. Except when otherwise indicated, the term "insufficient
evidence" is used in this Comment in the latter sense, i.e., that the evidence
is insufficient as a matter of law to sustain the conviction.

Whether the Indiana standard of review does in fact meet the require-
ments of due process is a different question, since there are two basic due
process issues which are not necessarily coextensive in scope. The standard
does meet the requirements to the extent that convictions are reversed when
there is no evidence on a material element of the offense charged. See notes

5 & 6 infra. It may be the case, however, that even when there is some evidence
on all material elements, the evidence may be so weak that, as a matter of
law, it cannot be said that guilt was established by proof beyond a reasonable
doubt, a second requirement of due process of law. See note 4 infra. Although
the concept of proof beyond a reasonable doubt traditionally has played a
minor role in the evaluation of evidence at the appellate level, it is now
an element of due process and should not be excluded from appellate con-
sideration. Moreover, the concept that appellate courts are unsuited for evalua-

tion of demeanor and credibility, because their review is limited to a cold
paper record, may no longer be valid, at least in those trial courts where
the proceedings are recorded by videotape process. In light of these con-
siderations, as well as others, the Indiana courts may be compelled to modify
the present restrictive standard of appellate review of the evidence.

^It may be noted that the trial court has greater power than the court
of appeals. Trial Rule 59(A)(4) of the Indiana Rules of Trial Procedure
specifies as a ground for relief in the motion to correct errors that the
verdict or decision is "contrary to the evidence." Trial Rule 59(E) (7) provides
that, in reviewing the evidence, the court shall grant a new trial if the de-
cision is found to be against the weight of the evidence. In civil cases the
rule has been construed to afford the trial court broad powers to sit as the
"thirteenth juror." Davis v. Lee, 292 N.E.2d 263 (Ind. Ct. App. 1973). Trial
Rule 59 is incorporated into criminal practice by Rule 16 of the Indiana
Rules of Criminal Procedure. Although the double jeopardy provisions
clearly would prohibit a new trial for the State following a verdict of acquittal
by the jury, the trial court may weigh the evidence and award the defendant
such relief.



500 INDIANA LAW REVIEW [Vol. 8:497

Notwithstanding this restrictive standard of review, appel-
late courts do reverse judgments of conviction because of the
insufficiency of the evidence. It is only when the evidence at trial
is conflicting that the findings of fact are not reviewable on appeal,
for it is only in this context that the reviewing court is asked to
"weigh" the evidence. It is quite a different matter when there
has been a total failure of proof as to one or more of the essential
elements of the crime charged. Here the reviewing court is not
asked to weigh the evidence but to decide a question of law, for,
as a matter of law, the State must present some evidence on each
and every material element of the crime charged. In the absence
of such evidence the State could not have proved the accused guilty
beyond a reasonable doubt, and different considerations come into
play.'* Whether the evidence is sufficient with respect to each of
the material elements of the crime is a question of law and is
reviewable on appeal. While the courts might prefer to avoid the
issue, it is, nonetheless, one that must be faced and decided. In
the absence of some evidence on each material element, the issue
assumes constitutional proportions. The Supreme Court of the
United States recently reaffirmed the principle that it is "be-

yond question, of course, that a conviction based on a record

lacking any relevant evidence as to a crucial element of the offense

charged . . . violate [s] due process."^ The Indiana courts are not
reluctant to meet their constitutional obligations. Upon a showing
of such insufficiency, judgments of conviction are reversed.*

^In In re Winship, 397 U.S. 358 (1970), the Court held that the require-

ment that guilt of a criminal charge be established by proof beyond a

reasonable doubt is a requirement of due process. It should follow that

when the record on appeal demonstrates a failure of proof as a matter of

law, the convicted person has been denied due process.

^Vachon v. New Hampshire, 414 U.S. 478, 480 (1974), quoting from
Harris v. United States, 404 U.S. 1232, 1233 (1971). See generally Thompson
V. Louisville, 362 U.S. 199 (1960).

''E.g., Melvin v. State, 249 Ind. 351, 232 N.E.2d 606 (1968) (entering
to commit a felony) ; Goodloe v. State, 248 Ind. 411, 229 N.E.2d 626 (1967)
(entering to commit a felony) ; Leitner v. State, 248 Ind. 381, 229 N.E.2d
459 (1967) (entering to commit a felony) ; Underbill v. State, 247 Ind. 388,
216 N.E.2d 344 (1966) (second degree burglary) ; Baker v. State, 236 Ind.
55, 138 N.E.2d 641 (1956) (robbery) ; Mattingly v. State, 230 Ind. 431, 104
N.E.2d 721 (1952) (theft) ; McAdams v. State, 226 Ind. 403, 81 N.E.2d 671
(1948) (burglary) ; Steinbarger v. State, 226 Ind. 598, 82 N.E.2d 519 (1948)
(possessing burglary tools) ; Wood v. State, 207 Ind. 235, 192 N.E. 257
(1934) (violation of liquor law). In a few cases the conviction was re-
versed when the failure of proof related to just one element of the offense,
such as the mens rea. See, e.g., Lawson v. State, 257 Ind. 539, 276 N.E.2d
514 (1971) (no evidence of intent in a prosecution for theft on a theory
of larceny by finders). More common are those cases in which the failure
of proof goes to the entire complex of elements, including both the objective



1975] APPELLATE ACQUITTAL 501

Reversal of the judgment itself is but a prelude to the prob-
lem. The remaining question, one that has not been resolved
adequately in Indiana, is the proper disposition of the accused
following the reversal for insufficient evidence. Should the ap-
pellate court reverse and remand the case for a new trial, or
should it enter a judgment of acquittal and order the defendant
discharged from further prosecution? Does the appellate reversal
for insufficient evidence constitute a judgment of acquittal that
can be pleaded in bar of a subsequent prosecution for the same
offense? Whether retrial is barred by the constitutional protec-
tions against double jeopardy depends upon the answers to these
questions.''

The arguments favoring application of the double jeopardy
clause to appellate reversals for insufficient evidence are com-
pelling. At the first trial the State exercised its opportunity to
convict the accused and, as a matter of law, the evidence failed to

establish guilt. Should the State be given the opportunity to

buttress its case at a second trial or, for harassment only, seek

a second guilty verdict on the same insufficient evidence ?° By

conduct and subjective intent. See Buchanan v. State, 279 N.E.2d 576 (Ind.
1972) ; Scott v. State, 257 Ind. 643, 277 N.E.2d 790 (1972) ; Isaac v. State,

257 Ind. 319, 274 N.E.2d 231 (1971) ; Bond v. State, 257 Ind. 95, 272 N.E.2d
460 (1971) ; Lloyd v. State, 256 Ind. 414, 269 N.E.2d 389 (1971) ; Lipscomb

V. State, 254 Ind. 642, 261 N.E.2d 860 (1970) ; Seats v. State, 254 Ind. 457,
260 N.E.2d 796 (1970); Sharp v. State, 254 Ind. 435, 260 N.E.2d 593 (1970);
Amaro v. State, 251 Ind. 88, 239 N.E.2d 394 (1968) ; Pace v. State, 248 Ind.
146, 224 N.E.2d 312 (1967); Robertson v. State, 231 Ind. 368, 108 N.E.2d

711 (1952) ; Wheat v. State, 195 Ind. 660, 146 N.E. 581 (1925) ; Cavender
V. State, 126 Ind. 47, 25 N.E. 875 (1890).

^The plural is used to emphasize the fact that the accused may look
to both the Constitution of the United States and the Constitution of Indiana.

The double jeopardy provision of the fifth amendment to the United States
Constitution applies to state prosecution. Benton v. Maryland, 395 U.S. 784

(1969). Double jeopardy is also proscribed by Article 1, section 14 of the

Indiana Constitution.

^Avoiding the harassment and expense of multiple prosecutions is as
much a part of the unindulging policy against double jeopardy as is the
threat of multiple convictions. Mr. Justice Black described the policy of the

double jeopardy clause:

[T]he State with all its resources and power should not be allowed
to make repeated attempts to convict an individual for an alleged
offense, thereby subjecting him to embarrassment, expense and ordeal
and compelling him to live in a continuing state of anxiety and in-
security, as well as enhancing the possibility that even though in-
nocent he may be found guilty.

Green v. United States, 356 U.S. 184, 187-88 (1957). Of course, the State is
not limited, in the event of a new trial, to the same evidence adduced at the
former proceeding. New evidence my be presented and new offenses arising
out of the same transaction may be charged. See United States v. Ewell, 383
U.S. 116 (1966).



502 INDIANA LAW REVIEW [Vol. 8:497

reason of the insufficiency the judgment of conviction was
reversed. Clearly, the defendant should have been acquitted in
the trial court, and that acquittal would have barred a second trial
for the same offense. Logic would dictate a similar result when
the acquittal comes at the appellate level, for it is a miscarriage of
justice that the defendant was not acquitted at trial. The tradi-
tional view, however, permits a second trial for the same offense
following reversal on appeal for insufficient evidence. Such cases
have been remanded for retrial in a majority of jurisdictions,
including Indiana. But the tides of change are moving. A growing
number of states are accepting the argument that retrial is barred
by the double jeopardy clause.

II. Historical Development

A review of early English common law affords little en-
lightenment on the historical development of the doctrine of
appellate acquittal in the United States. Although by the time of
Blackstone it was a "universal maxim of the common law of
England that no man is to be brought into jeopardy of his life
more than once for the same offense,*'' it was also true that the
right to appeal from a conviction in a criminal case was severely
limited. According to Blackstone, writs of error generally were

available in misdemeanor cases, but only rarely in felony cases

punishable by death. More frequently an appeal of a felony con-
viction was granted to the personal representative of the defendant
after his execution, in which case the issue of retrial was moot.'°
Moreover, the writ of error was a rigid common law form pursuant
to which only limited issues could be raised in support of reversal."

In the rare case in which the judgment of conviction was

reversed, it is not clear that the English courts of appeal were

empowered to order a retrial. Some authorities take the position

the retrial was not permitted. In Green v. United States,''' Mr.

Justice Black declared that, under present English law, appellate

courts could order a new trial after an appeal only when the first
trial was a complete "nullity" for reasons such as lack of personal

'4 W. Blackstone, Commentaries * 335. It was from this maxim that
the special pleas in bar were developed, including the pleas of autrefoits

acquit and autrefoits convict, which became a part of the common law of

Indiana. The special pleas of former attainder and pardon allowed at common

law in England were never recognized in this state. Clem v. State, 42 Ind.

420, 431-32 (1873).
^°4 W. Blackstone, Commentaries * 391,
"1 J. Stephen, History op the Criminal Law of England eh. 10

(1883).
'=355 U.S. 184 (1957).



1975] APPELLATE ACQUITTAL 503

or subject-matter jurisdiction.'' This analysis is supported by
language of the House of Lords in 1964 to the effect that retrial is
not allowed "in respect of the same offense after the verdict of
guilty has been quashed on any ground by the Court of Criminal
Appeal/*'^

Whatever the present state of the English law, it is by no
means clear that the courts of appeal in earlier times were without
power to remand for retrial. According to Blackstone, the general
rule was that if a judgment of conviction were reversed on a writ
of error, the accused was subject to being tried again on the theory
that "he still remains liable to another prosecution for the same
offense; for the first being erroneous he never was in jeopardy
thereby."'^ Moreover, the rule was applied to cases in which the
reversal was on the ground of insufficient evidence as well as
when the judgment was reversed for other reasons. Blackstone
reported that:

[I]n many instances where, contrary to evidence, the jury
have found the prisoner guilty, their verdict hath been

mercifully set aside and a new trial granted by the court
of kings bench . . . .'^

Whatever the English common law rule may have been, it
seems not to have survived the journey across the Atlantic; the

courts on this continent regularly reversed criminal convictions

and remanded cases for new trial without resort to English

common law authority. In the earlier decisions remand orders

were issued without consideration of the potential constitutional

double jeopardy question.'^

The relationship of the double jeopardy clause and retrial

after appellate reversal began to develop in 1896 with the decision

^Ud. Sit 189 n.7. He further noted, however, that English appellate
courts did have the power to substitute a finding of guilt of a lesser offense

if warranted by the evidence. Id.
The Illinois Court of Appeals in People v. Brown, 99 111. App. 2d 281,

299 n.6, 241 N.E.2d 653, 662 n.6 (1968), similarly concluded that English ap-
pellate courts could order a new trial only when the first was a complete
nullity. It is apparent, however, that the Court was relying primarily on
Mr. Justice Black's historical analysis in Green.

'^Connelly v. Director of Public Prosecutions, 2 All E.R. 401, 406 (1964)
(emphasis added). In Connelly, the House of Lords seemed to accept as a
firmly established principle that double jeopardy prohibits retrial in the

event of reversal. The precise issue of the case, however, was whether the
defendant could be charged in a second prosecution with a different offense
arising out of the same criminal transaction as his original conviction and
reversal.

'^4 W. Blackstone, Commentaries * 393.
^^Id. at 361 (emphasis added).

'^E.g., Hopt V. Utah, 104 U.S. 631 (1882).



504 INDIANA LAW REVIEW [Vol. 8:497

in Ball v. United States. ^^ With little more than a paraphrase of
Blackstone/' the Court concluded that the defendant could be

retried

because it is quite clear that a defendant, who procures
a judgment against him upon an indictment to be set
aside, may be tried anew upon the same indictment or
upon another indictment, for the same offence of which
he had been convicted.'^°

'8163 U.S. 662 (1896).

''<See note 15 supra & accompanying text.
20163 U.S. at 672. The underlying theory of Ball is that the defendant

waived his double jeopardy defense to a second trial by taking affirmative

action to have the judgment of conviction set aside. All of the states, including

Indiana, have adopted this waiver concept. See generally Morgan v. State, 13
Ind. 215 (1859). Thus, the act of taking a direct appeal and obtaining a

reversal of the judgment is a waiver of the defense. E.g., United States v.
Tateo, 377 U.S. 463 (1964) ; Louisana ex rel Francis v. Resweber, 329 U.S.

459 (1947); Layton v. State, 251 Ind. 205, 240 N.E.2d 489 (1968); State

V. Balsley, 159 Ind. 395, 65 N.E. 185 (1902) ; Joy v. State, 14 Ind. 139 (1860).
See also Malone v. State, 179 Ind. 184, 100 N.E. 567 (1913) (appeal from
justice of the peace court). Similarly, if the trial court sustains the de-

fendant's motion to correct errors and orders a new trial, the defense is
waived. See Eskridge v. State, 281 N.E.2d 490 (Ind. 1972). The defense is
waived when the defendant successfully attacks the judgment in a collateral
post-conviction proceeding in state court. See McDowell v. State, 225 Ind. 495,
76 N.E.2d 249 (1947) ; State ex rel Lopez v. Killigrew, 202 Ind. 397, 174 N.E.
808 (1931). Also, retrial is permitted on a waiver theory when the conviction
is set aside in a federal habeas corpus action. Todd v. State, 229 Ind. 664, 101
N.E.2d 45 (1951). Jeopardy has attached when the court accepts a guilty
plea from the accused and a second prosecution is barred. Ledgerwood v.
State, 134 Ind. 81, 33 N.E. 631 (1893) ; Boswell v. State, 111 Ind. 47, 11 N.E.

788 (1887). But if the defendant successfully moves to withdraw the plea,
the defense is waived. Ledgerwood v. State, supra. See also Joy v. State,
14 Ind. 139 (1860) (defense waived when the defendant's motion in arrest
of judgment is sustained).

But the waiver doctrine is not without its limitations. Retrial is limited
to those counts upon which the defendant was convicted in the prior proceed-
ing. Thus, when the original charge is in two or more counts and the
verdict is on one count only, the silence of the verdict on the other counts
is an implicit acquittal precluding a second prosecution. See Smith v. State,
229 Ind. 546, 99 N.E.2d 417 (1951) ; Lucas v. State, 173 Ind. 302, 90 N.E.
305 (1910). In Selvester v. United States, 170 U.S. 262 (1898), the Court
recognized the general rule that a silent verdict is an implicit acquittal but
held that when the jury returned a verdict on some counts and could not
agree as to others, the trial court may accept the partial verdict and the
defendant would remain subject to a second prosecution on the counts with
respect to which the jury could not agree. Of course, an express acquittal
on some counts in the prior proceeding remains a bar to a subsequent prose-
cution even though a successful appeal is taken with respect to other counts.
Benton v. Maryland, 395 U.S. 784 (1969). A second limitation is applied when
at the first trial the defendant was convicted of a lesser included offense of



1975] APPELLATE ACQUITTAL 505

But Ball was not a case of insufficient evidence. The basis for
appellate reversal was a defect in the sufficiency of the indictment,
an error in the nature of a procedural defect.'' Presumably, the
proof at trial was more than sufficient to support the guilty
verdict; the appellant did not contend that he should have been
acquitted at trial on the merits of the evidence. To the extent
that the accused was not entitled to acquittal in the trial court,
the Ball rationale is defensible. The procedural error merely acted
to deny the defendant a fair trial. Accordingly, retrial was an
appropriate remedy to correct the error. It is a different matter,
however, when the cause for reversal is insufficient evidence since
such a reversal is tantamount to a determination that the defendant
should have been acquitted at trial.

Nonetheless, in Bryan v. United States,^^ the Ball rationale
was extended to a case in which the judgment was reversed for
insufficient evidence. At the close of the Government's case in
Bryan and at the conclusion of all the evidence, the defendant
moved for a judgment of acquittal. These motions were denied,
and the defendant was convicted of income tax evasion. The judg-
ment was reversed by the Fifth Circuit Court of Appeals because
the evidence was insufficient to support the verdict. The case
was then remanded to the district court with instructions to order
a new trial. Upon appeal to the Supreme Court the defendant
contended that the case should have been remanded with instruc-

tions to enter a judgment of acquittal. The Court, however, dis-
agreed. While a major portion of the Court's opinion was concerned
with the power granted federal appellate courts by statute and
court rules which allowed them to remand for a new trial, short
shrift was made of the petitioning defendant's double jeopardy
argument

:

the crime charged. If the conviction is set aside on appeal, the defendant may
not again be charged with the offense alleged in the first indictment or in-

formation. He may only be charged with the lesser offense. Price v. Georgia,
398 U.S. 323 (1970); Causey v. State, 256 Ind. 19, 266 N.E.2d 795 (1971).

""'See also United States v. Tateo, 377 U.S. 463, 465 (1964). In Tateo

the Court concluded that double jeopardy protection does not preclude retrial

when the conviction is set aside because of an error in the proceedings lead-
ing to conviction. The qualitative difference between an error in the pro-
ceedings and a failure of proof is apparent.

"338 U.S. 552 (1950). The issue could not have been stated more suc-
cinctly:

The important question presented upon this record is whether
the Court of Appeals, when it reverses the District Court because the
evidence is not sufficient to sustain a conviction, may direct a new
trial where a defendant had made all proper and timely motions for
acquittal in the District Court.

Id. at 553.



506 INDIANA LAW REVIEW [Vol. 8:497

Petitioner's contention that to require him to stand trial
again would be to place him twice in jeopardy is not
persuasive. He sought and obtained the reversal of his
conviction, assigning a number of alleged errors on ap-
peal, including denial of his motion for judgment of
acquittal. ". . . [W]here the accused successfully seeks
review of a conviction, there is no double jeopardy upon
a new trial."^^

In further support of its conclusion that the new trial order was
a "just and appropriate judgment," the Court noted that a majority

of the Fifth Circuit judges were of the opinion that the defect

in the evidence could be corrected on retrial. Moreover, one of the

judges had dissented "vigorously" upon the ground that the evi-

dence amply supported the defendant's conviction.

The Court in Bryan failed to note that the earlier cases upon

which it relied involved reversals for procedural irregularities,

and the evidence in those cases was sufficient to sustain the judg-

ments.'^ Without considering this distinction, the Court summarily

^^/d. at 560, quoting from Louisiana ex rel. Francis v. Resweber, 329 U.S.

459, 462 (1947). It is interesting that the Ball decision was not cited by the

Court; rather, the opinion cited only the Ball progeny, Louisiana ex rel.

Francis v. Resweber, 329 U.S. 459 (1947), and Trono v. United States, 199

U.S. 521 (1905). It should also be noted that Mr. Justice Douglas took no

part in the consideration or decision of the case.

^''338 U.S. at 560. It could well be argued that retrial should be barred

even when the reversal is grounded upon a procedural irregularity. The
question of the guilt or innocence of the accused has never been a relevant

consideration in the application of the double jeopardy defense, so why should
the defense only be available in reversals for insufficient evidence when the
defendant argues that he should have been acquitted at trial? The underlying
policy of the double jeopardy clause is to preclude multiple prosecutions for

the same offense without regard to the question of guilt. If it is indeed true
that in a criminal prosecution the Government assumes the risks of all the
errors of the prosecuting attorney and the trial judge, the ground for reversal
would be immaterial. See United States v. Sisson, 399 U.S. 267, 289 (1970).
Certainly, the Government does assume the risk of all errors favorable to the
accused. Thus, if an erroneous judgment of acquittal is entered in favor of
the defendant, the prosecution may not appeal. Fong Foo v. United States,
369 U.S. 141 (1962). Why should not the Government also assume the risk
of errors that are prejudicial to the accused? If such a rule were adopted,
retrial would be precluded in any case in which there is a reversal on appeal.
Even those who would not adopt an absolutist approach might be comfortable
with a rule that would bar a second trial when the trial judge or prosecutor
committed a flagrant error prejudicial to the defendant upon an issue clearly
defined by law. In such a case, the accused is put to the expense and ordeal
of a second trial solely because of the conduct of the court or prosecutor in
clear and obvious disregard of the law. Both the judge and the prosecutor
may be viewed as functionaries of the State for whom the system, rather than
the accused, should assume responsibility.

I



1975] APPELLATE ACQUITTAL 607

applied the rule of Ball that a defendant who secures an appellate
reversal of his conviction may not claim double jeopardy as a
defense to retrial—regardless of the reason for reversal. This
decision, however, was not surprising. Although the Court in
Bryan did not rely upon state court authority to support its de-
cision, all of the state courts which had considered the question
by 1950 had found no constitutional infirmity in ordering retrial
after appellate determination of evidentiary insufficiency." It

was predicted as late as 1964 that most states would continue to
follow the Bryan rationale.^*

III. The Erosion of Bryan

In 1955 the Bryan rationale came under frontal attack and
arguably was overruled. In Sapir v. United States^^ the Tenth
Circuit Court of Appeals reversed a conviction entered by the
trial court and ordered the prosecution dismissed on the ground
that the evidence was insufficient to support a conviction. The
Government subsequently petitioned the court of appeals to
amend its judgment and grant a new trial because of newly dis-
covered evidence. The court granted the petition and ordered a
new trial. The defendant argued before the Supreme Court that
permitting the Government to obtain a new trial after the ap-
pellate order of discharge was a violation of his constitutional pro-
tection against double jeopardy. The Solicitor General relied upon
Bryan and argued that the defendant had waived his double jeop-
ardy protection by seeking reversal of his conviction. Accordingly,
he urged that the proper standard governing the grant of new
trials v/as whether a new trial would be "just and appropriate"
under the circumstances.

In a brief per curiam opinion the Supreme Court vacated the
new trial order and ordered the prosecution dismissed. The major-
ity opinion was nothing more than an order and contained no cita-
tion of authorities or discussion of the law. Accordingly, it is impos-

sible to determine the legal rationale for the Court's decision. It

is an open question as to whether the Court overruled Bryan and

^^The states that had decided the issue prior to 1950 all permitted re-

trial. A survey in 1964 found all but one of the eleven states with reported
decisions in accord with Bryan. See Comment, Double Jeopardy: A New
Trial After Appellate Reversal for Insufficient Evidence, 31 U. Chi. L. Rev*

365, 372 n.31 (1964). The sole exception noted was New Mexico which pro-
hibited retrial. State v. Moreno, 69 N.M. 113, 364 P.2d 594 (1961). In
those states in which the question had not been expressly decided, it was
assumed that the courts were regularly ordering new trials after reversals
for insufficient evidence.

^^See Comment, supra note 25, at 372 n.31.
2^348 U.S. 373 (1955).



508 INDIANA LAW REVIEW [Vol. 8:497

determined that retrial after appellate reversal for insufficient

evidence was violative of the constitutional prohibition of double
jeopardy, or whether retrial under the circumstances and facts of
Sapir was found by the Court not to be "just and appropriate." In
a separate concurring opinion, Mr. Justice Douglas, who had not
participated in the Bryan decision, flatly stated that:

The granting of a new trial after a judgment of acquittal
for lack of evidence violates the command of the Fifth
Amendment that no person shall "be subject for the same
offence to be twice put in jeopardy of life or limb.""

Under this view, no distinction can be drawn between a defendant
who is acquitted by a trial court for lack of evidence and a de-
fendant whose conviction is reversed by an appellate court for
lack of evidence. Neither defendant can be compelled to "run the
gauntlet" a second time.^'

In 1957 the Supreme Court was given an opportunity to
clarify the meaning of Sapir. In Yates v. United States,^° a Smith
Act prosecution, the Court reversed the trial court's decision and
ordered that five of the fourteen defendants be discharged be-

cause the evidence was "clearly insufficient." The cases of the
other nine defendants, however, were remanded for a new trial.
In so holding, the Court reaffirmed the Bryan doctrine:

[W]e would no doubt be justified in refusing to order
acquittal even where the evidence might be deemed
palpably insufficient, particularly since petitioners have
asked in the alternative for a new trial as well as for
acquittal.^'

More confusion resulted from the Court's opinion in Forman
V. United States,^^ in which the defendant was tried for income
tax evasion and convicted on the basis of an improper jury in-
struction. Upon appeal to the Ninth Circuit Court of Appeals, the
defendant's conviction was reversed with instructions to enter a

"7d. at 374.

^'Two facts should be noted about Sapir. All appropriate motions for

judgment of acquittal were made. Accordingly, the defendant could not be
held to have waived his right to such a judgment by nonaction at the trial
court level. Additionally, he did not request a new trial in his prayer for
relief on appeal. This seemed to be a significant factor to Mr. Justice Douglas

who noted that "if petitioner had asked for a new trial, different consider-
ations would come into play." Id.

^°354 U.S. 298 (1957).
^^Id. at 328. The majority opinion cited Bryan but did not cite Sapir.

Mr. Justice Black, joined by Mr. Justice Douglas, dissented in part on grounds
of double jeopardy. The dissent did not cite Sapir. It might also be noted here
that in a very real sense the petitioners did not ask for a new trial as alterna-
tive relief. It was their lawyer who made the request. See note 67 infra &
accompanying text.

3=361 U.S. 416 (1960).



1975] APPELLATE ACQUITTAL 509

judgment of acquittal. The apparent basis for this decision was
the mistaken notion that the facts shown at the trial were in-
sufficient to support a conviction under any criminal statute.
Upon rehearing the court of appeals modified its order of re-
versal and directed a new trial on the ground that the evidence
would have been sufficient had the case been tried upon a differ^
ent theory. Accordingly, the impropriety of the jury instructions
rather than insufficiency of the evidence was the ground for re-
versal. The Supreme Court affirmed the court of appeals* order
granting a new trial and attempted to reconcile the inconsis-
tencies of Bryan and Sapir. Citing Ball and Bryan for the general
proposition that a person can be tried a second time for an of-
fense when his conviction is set aside on appeal, the Court im-
plicitly recognized the validity of Sapir but factually distinguished

it from Forman. The Court noted that Forman involved the pro-
priety of jury instructions and the insufficiency of the evidence
was not considered. Moreover, in Forman the defendant speci-
fically requested new trial relief.^^

As a consequence of the Court's decisions in Yates and For-
man, the impact of Sapir in the federal courts remains obscured.
For the most part, the lower federal courts have continued to
apply Bryan and have remanded cases for new trial after appel-
late reversal for insufficient evidence.^"^ A growing number of
state courts, however, are accepting the rationale of the con-

curring opinion in Sapir as an unequivocal bar to retrial. Be-
ginning with the New Mexico Supreme Court in 1961,^^ the doc-
trine of appellate acquittal has been adopted in other states^* and

33

While petitioner contends that here the action of the Court

of Appeals on rehearing was based on new evidence, as in Sapir,
this is incorrect. Here there was no lack of evidence in the record.
As the Court of Appeals pointed out, "The jury was simply not
properly instructed." 264 F2d at 956. On the other hand, the order
to dismiss in Sapir was based on the insufficiency of the evidence,
which could be cured only by the introduction of new evidence, which
the Government assured the court was available. Moreover, Sapir
made no motion for a new trial in the District Court, while here peti-
tioner filed such a motion. That was a decisive factor in Sapir's
case.

Jd. at 425-26.

=*E.g., United States v. Koonce, 485 F.2d 374 (8th Cir. 1973).

"State v. Moreno, 69 N.M. 113, 364 P.2d 594 (1961). The court states

the rationale as follows: "The effect of a reversal for lack of sufficient

evidence to support a conviction is not different from an acquittal by the

jury and requires that the defendant be discharged." Id. at 115, 364 P.2d

at 596.

^^State V. Torres, 109 Ariz. 421, 510 P.2d 737 (1973) (retrial for the

same offense barred although the accused may be charged with a different
offense arising out of the same transaction) ; Hervey v. People, 495 P.2d



510 INDIANA LAW REVIEW [Vol. 8:497

a new judicial trend has been established.^^ Of course, all of the
cases from Ball through Forman arose from federal criminal pros-
ecutions and were decided before the double jeopardy clause of
the fifth amendment was made applicable to the states through
the fourteenth/® and the extent to which they might be binding
upon state courts has not been determined.^' Nonetheless, the
state courts that have precluded retrial following appellate re-
versal for insufficient evidence have relied upon Sapir as per-
suasive authority if not as a constitutional mandate. Moreover, if
the Court were faced with the issue again, it is doubtful, at least
in a federal case, whether it would continue to follow the Bryan
rationale. The logic of the state court decisions and the emerging
doctrine of appellate acquittal which has developed after the de-
cision in Forman is irrefutable. And the Court has not been re-
luctant in recent years to expand the application of the double
jeopardy protection.'^^

204 (Colo. 1972) ; People v. Brown, 99 111. App. 2d 281, 241 N.E.2d 653

(1968). In Florida, the court will reverse and permit retrial in cases in

which the evidence is legally sufficient but very weak. If, however, the

evidence is legally insufficient retrial is barred. Sosa v. Maxwell, 234 So.

2d 690 (Fla. Ct. App. 1970) ; Smith v. State, 239 So. 2d 284 (Fla. Ct. App.

1970). In those states which have not explicitly decided the issue, the

courts regularly reverse and order the defendant discharged without dis-
cussion of the double jeopardy issue. See People v. Hubbard, 19 Mich. App.

407, 172 N.W.2d 831 (1969).
^'The trend is recognized even by those courts refusing to adopt it.

In Gray v. State, 254 Md. 385, 388, 255 A.2d 5, 9 (1969), cert, denied, 397
U.S. 944 (1970), the court, although refusing to indorse the new principle,
observed

:

We perceive, however, some judicial tendency or trend towards
recognition of the logic of appellate direction for the entry of a

judgment of acquittal if the state fails to prove its case in the
trial court.

^°The double jeopardy clause was made applicable to the states in Benton
v. Maryland, 395 U.S. 784 (1969).

^'The mere fact that the fourteenth amendment prohibits double jeopardy
does not necessarily mean that the requirements of fourteenth amendment
due process are coextensive in scope with fifth amendment double jeopardy.
In Johnson v. Louisiana, 406 U.S. 356, 366 (1972), Mr. Justice Powell in his
concurring opinion argued that the sixth amendment jury trial right was
not fully applicable to the states through the fourteenth amendment in all
of its essential attributes even though the basic rudiments of a jury trial
could not be denied. It is possible that a similar result could be reached

with respect to the fifth amendment double jeopardy clause.
^°5ee, e.g., United States v. Jorn, 400 U.S. 470 (1971) ; Moon v. Maryland,

398 U.S. 319 (1970); Ashe v. Swenson, 397 U.S. 436 (1970); Waller v.
Florida, 397 U.S. 387 (1970); Benton v. Maryland, 395 U.S. 784 (1969);
North Carolina v. Pearce, 395 U.S. 711 (1969). It might also be noted that
Mr. Chief Justice Burger authored the majority opinions in both Price v.
Georgia, 398 U.S. 323 (1970), and Waller v. Florida, supra.



1975] APPELLATE ACQUITTAL 511

IV. Problems of Waiver

The essence of the Bryan rationale is waiver. Because the de-
fendant has chosen to seek and obtain a reversal of his convic-
tion, the right to object to retrial is waived. In addition, at least

two other waiver problems exist in the context of reversals for
insufficient evidence. The first is suggested by those Indiana de-
cisions which indicate that the right to appellate acquittal may
be waived by failure to request a directed verdict at the trial. In
addition, the concurring opinion in Sapir suggests that appellate

acquittal may be waived if the appellant seeks a new trial as al-
ternative relief on appeal. Although some courts have relied on
these concepts of waiver to justify retrial, none is properly appli-
cable to the appellate acquittal situation. Like the Bryan rationale,
these waiver problems should disappear with the passage of time

and the refinement of judicial logic.
The Indiana Supreme Court has not decided that the double

jeopardy clause bars retrial after an appellate court determina-
tion of insufficient evidence,"^' although in a concurring opinion

Justice DeBruler has argued that "successive trials of this na-
ture may well violate the rights of this defendant granted to him
by the double jeopardy clause of the Fifth Amendment to the
United States Constitution."^^ But a majority of the court is
not in accord, and the practice of remanding cases for retrial con-
tinues.

Nonetheless, a review of the Indiana cases reveals a puzzling

inconsistency. In some cases in which appellate courts have found
the evidence insufficient, the defendant's case has been remanded
for a new trial. In others the appellants were ordered discharged
from further prosecution. A close reading of these cases suggests
that an appellate order of discharge may be contingent upon
whether a proper motion for a directed verdict of acquittal was
made in the trial court. In many decisions in which it is disclosed
that such a motion was made at trial, the defendants were or-
dered discharged."^^ In other decisions reversed for insufficient

Several years after Sapir the Court held in Fong Foo v. United States,
369 U.S. 141 (1962), that a judgment of acquittal erroneously entered by
the trial court bars retrial even though the court on appeal finds the evidence

more than sufficient to support a conviction.
^'The only statement that could be viewed as an enunciation of a standard

to determine retrial is contained in Banks v. State, 257 Ind. 530, 539, 276
N.E.2d 155, 160 (1971), in which the court stated that "there being nothing

in the record to indicate that the evidential deficiency might be supplied

upon a retrial, we direct that the defendant be discharged."
^^Lloyd v. State, 256 Ind. 414, 417, 269 N.E.2d 389, 390 (1971).
^^In Pace v. State, 248 Ind. 146, 224 N.E.2d 312 (1967), the judgment

was reversed without remand upon the determination that the defendant's
motion for a directed verdict should have been sustained. Similarly, in Wood



512 INDIANA LAW REVIEW [Vol. 8:497

evidence, in which it does not appear that the defendant requested

a directed verdict, the cases were remanded for retrial/^ Despite
the existence of decisions in which discharge was ordered even
though on the face of the opinion a motion for a directed verdict

of acquittal was not made,"*^ it is reasonable to assume that the
Indiana Supreme Court considers a timely motion for directed
verdict a precondition to discharge/*

If a timely motion for a directed verdict is a condition to
discharge by an appellate court, it is hardly fair to defendants
in the criminal courts that this condition has not been articulated

by the Indiana Supreme Court. Clearly, the enunciation of such
rules is a basic function of the appellate process/^ Moreover, the

soundness of this principle is subject to serious question. The only
basis for differential treatment of appellants who have failed to
request a peremptory instruction for directed verdict is that such

failure constitutes a waiver of their right to an acquittal at the
trial court level.'^^ It is difficult to justify this rationale because

its effect would be to impose a waiver of appellate relief at a

point in the proceeding at which the right to relief in the trial

court remains open. By failing to request a directed verdict, the
accused has not waived his right to relief in the trial court. In-

diana Rule of Trial Procedure 59(A) clearly specifies that insuf-
ficent evidence is a ground for a motion to correct errors pur-

V. State, 207 Ind. 235, 192 N.E. 257 (1934), there was no remand order when
the trial court granted the codefendant's request for a directed verdict but

erroneously denied the appellant's motion.

'^"E.g., Buchanan v. State, 279 N.E.2d 576 (Ind. 1972) ; Lloyd v. State,
256 Ind. 414, 269 N.E.2d 389 (1971). It is assumed that no motion for

directed verdict was made in these cases.
"^^See Hochman v. State, 300 N.E.2d 373 (Ind. Ct. App. 1973) ; Lawson

V. State, 257 Ind. 539, 276 N.E.2d 514 (1971). However, a review of the

transcript of these cases might well reveal the fact that a directed verdict

request was made, or discharge may have been the result of a finding that
the evidential deficiency could not be cured on retrial. See note 41 supra.

'**An appropriate motion for judgment of acquittal, the federal equivalent

of a directed verdict, was made in Sapir. See note 29 supra. This may have
been a factor in the disposition of that case.

^^IND. Code §35-1-47-12 (Ind. Ann. Stat. §9-2323, Burns 1956).
"^^The present rules of procedure impose significant waiver limitations

on appeal. Issues not included in the motion to correct errors are waived

pursuant to Trial Rule 59(G). See, e.g., McAfee v. State ex rel. Stodola,
284 N.E.2d 778 (Ind. 1972); Smitley v. Egley, 294 N.E.2d 640 (Ind. Ct.

App. 1973). Moreover, the issue is waived on appeal if not stated with
specificity in the motion. E.g., Goshen City Court v. State ex rel. Carlin,

287 N.E.2d 591 (Ind. Ct. App. 1972); Matthew v. State, 289 N.E.2d 336
(Ind. Ct. App. 1972). Trial Rule 59 is applicable to criminal cases through

Criminal Rule 16. See Cansler v. State, 281 N.E.2d 881 (Ind. 1972).



1976] APPELLATE ACQUITTAL 613

suant to which the trial court may enter a judgment of acquittal/'
Failure to request a directed verdict also does not constitute a
waiver of the sufficiency issue for purposes of including it in the

motion. Moreover, Trial Rule 59(G) contemplates appellate re-
view of every issue included in the motion to correct errors. Ap-
plication of the waiver doctrine would result in an anomaly: a
trial court could enter judgment of acquittal pursuant to a mo-
tion to correct errors, but an appellate court could not do so.

The waiver doctrine is also in direct conflict with Indiana
statutory law which requires that a defendant be discharged
when the judgment is reversed for insufficient evidence:

When a judgment against the defendant is reversed,
and it appears that no offense whatever has been com-
mitted, the court rendering such decision on appeal must
direct that the defendant be discharged . . . .^°

It is clear that appellate courts are empowered to grant any ap-
propriate relief, including the entry of a final judgment of ac-
quittal.^'

There is no substantial difference between a defendant who
requests a directed verdict and one who raises the issue for the
first time in the motion to correct errors. Both are calling the at-
tention of the trial court to the legal insufficiency of the evidence

and are requesting appropriate relief. In either case the trial court
is empowered to acquit the accused. A review of the policies under-
lying the double jeopardy provisions reveals no basis upon which
such differential treatment could be grounded. Fundamentally,

the State is given one opportunity, and one only, to convict a
citizen of a crime.^^ The purpose of the double jeopardy clause
is to protect the individual from the hazards of repeated trials
and possible conviction for the same offense:

The underlying idea, one that is deeply ingrained in at
least the Anglo-American system of jurisprudence, is
that the State with all its resources and power should not
be allowed to make repeated attempts to convict an in-
dividual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him
to live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that even though in-
nocent he may be found guilty.^^

"^'Trial Rule 59(E)(2) authorizes the trial court to enter a final judg-
ment of acquittal.

*°IND. Code §35-1-47-13 (Ind. Ann. Stat. §9-2324, Burns 1956).
^^IND. R. App. p. 15 (M).

^^The prosecution may not treat a first trial as a "dry run" to test the
sufficiency of its case. See Ashe v. Swenson, 397 U.S. 436, 447 (1970).

"Green v. United States, 355 U.S. 184, 187-88 (1957).



514 INDIANA LAW REVIEW [Vol. 8:497

This principle finds expression in a variety of circumstances.
For example, when a defendant is acquitted by the trial court
because of insufficient evidence, which finding is later found
on appeal to have been erroneous, it is axiomatic that the State
cannot obtain a new trial/^ Accordingly, a defendant who was
improperly acquitted in the trial court is free from further pro-
secution. Yet a defendant who was entitled to acquittal in the
trial court but was compelled to appeal from an improper con-
viction may be subjected to retrial. No justification for such
disparate treatment exists.^^ This injustice is especially pervasive
when an appellant, who was wrongfully convicted, remains in-

54

Thus it is one of the elemental principles of our criminal law that
the Government cannot secure a new trial by means of an appeal
even though an acquittal may appear to be erroneous.

Id. at 188.

The acquittal may result from the verdict of the jury or a directed
verdict of acquittal. Where the evidence is insufficient as a matter of law
to support a conviction, a directed verdict is proper. E.g., Hardin v. State,
246 Ind. 23, 201 N.E.2d 333 (1964) ; State v. Overholser, 69 Ind. 144 (1879);
State v. Banks, 48 Ind. 197 (1874) ; State v. Trove, 1 Ind. App. 553, 27

N.E. 878 (1891). Although the State may appeal from a directed verdict
of acquittal as a reserved question of law, the judgment of acquittal is not
reversed even though the appeal is sustained. See State v. Patsel, 240 Ind.

240, 163 N.E.2d 602 (1960); State v. Torphy, 217 Ind. 383, 28 N.E.2d 70

(1940) ; State v. Kubiak, 210 Ind. 479, 4 N.E.2d 193 (1936) ; State v.

McCaffrey, 181 Ind. 200, 103 N.E. 801 (1914) ; State v. Overmyer, 294 N.E.2d

172 (Ind. Ct. App. 1973).

In Fong Foo v. United States, 369 U.S. 141 (1962), the district court
erroneously entered a final judgment of acquittal and the court of appeals

reversed and remanded for a new trial. The Supreme Court vacated the
remand order, holding that the judgment of acquittal, once entered, can

never be set aside regardless of error, because to do so would put the de-

fendant twice in jeopardy in violation of the Constitution.

Apparently, in Indiana, the State has never contended that it could

obtain a new trial in an appeal from an erroneously granted directed verdict.
In the case of State v. Robbins, 221 Ind. 125, 46 N.E.2d 691 (1943), the

State appealed on a reserved question of law from a directed verdict. In
its brief filed in the appeal, the State acknowledged that the judgment could
not be reversed. The brief assigned several errors to sustain the appeal
though "not to secure reversal of the judgment." Brief for Appellant at 10.

55

We can see no essential difference—except one of unfairness

—

between a defendant who is acquitted at trial and one who has to
appeal to obtain reversal on the ground of insufficient evidence.
Surely, it would compound the unfairness to require that the latter
also submit to a retrial.

People V. Brown, 99 111. App. 2d 281, 293 n.2, 241 N.E.2d 653, 659 n.2 (1968).
Arguably, this differential treatment also raises substantial equal protection

problems although the opinions of the courts do not characterize the issues

as presenting anything but double jeopardy problems.



1976] APPELLATE ACQUITTAL 515

carcerated pending his appeal because of his inability to make
bail. Even though the costs of his legal defense may be borne by
the county, an impecunious defendant pays for his retrial through
loss of liberty/*

Moreover, the effect of the present state of the law could be
to afford broader constitutional protection to a defendant who
is shown to be prima facie guilty. Even if palpably erroneous, a
directed verdict of acquittal at the trial level could protect a

guilty defendant from the hazards of retrial after a reversal of

the conviction upon appeal/^ On the other hand, a defendant who
is not shown to be prima facie guilty, and who in fact may be in-
nocent, could be subjected to a new trial. Thus, the present state
of the law in the context of individual cases is calculated to

shield the guilty and persecute the innocent.
Upon what basis is retrial afforded in any case? The rationale

of Ball and Bryan urges that the defendant has waived the double
jeopardy protection by his own act of initiating an appeal and
succeeding in having the judgment set aside. Indiana decisions
have indorsed this principle.^° But a coerced waiver of this kind
is no more than a fiction which has been rejected explicitly in the
context of other cases.

In Green v. United States,^"^ the Court dealt directly with the
question of a coerced waiver of double jeopardy protection. In
Green the defendant was charged with first degree murder but

^^The low income defendant may be detained in jail from the time of
his original arrest through the process of appeal, and remain in custody
through a second trial following appellate reversal. If he is unable to obtain

release on bail, he may spend two or three years incarcerated even though
the evidence was insufficient to convict.

^^Fong Foo V. United States, 369 U.S. 141 (1962), bars retrial following
a directed verdict of acquittal even though the evidence was more than suf-
ficient to make out a jury question. The one exception to the general rule
occurs when the defendant fraudulently procures a judgment for the
purpose of frustrating a legitimate prosecution. In such a case retrial is

allowed. See Peters v. Koepke, 156 Ind. 35, 59 N.E. 33 (1901) ; Gresley v.

State ex rel. Neireiter, 123 Ind. 72, 24 N.E. 332 (1889); Halloran v. State,

80 Ind. 586 (1881). The first prosecution, even though fraudulently procured,
may bar a subsequent trial if the defendant received the full penalty author-
ized by law. See Watkins v. State, 68 Ind. 427 (1879).

"5fee Layton v. State, 251 Ind. 205, 240 N.E.2d 489 (1968); State v.

Balsley, 159 Ind. 395, 65 N.E. 185 (1902) ; Joy v. State, 14 Ind. 139 (1860).
See also Malone v. State, 179 Ind. 184, 100 N.E. 567 (1913) (appeal from
justice of the peace). Similarly, the defendant is subject to retrial if the

judgment of conviction is set aside in a collateral proceeding for post-
conviction relief. See McDowell v. State, 225 Ind. 495, 76 N.E.2d 249 (1947)

;

State ex rel. Lopez v. Killigrew, 202 Ind. 397, 174 N.E. 808 (1931). He may
be retried following habeas corpus relief in the federal courts. See Todd v.
State, 229 Ind. 664, 101 N.E.2d 45 (1951).

^'355 U.S. 184 (1957).



516 INDIANA LAW REVIEW [Vol. 8:497

was convicted by the jury of the lesser included offense of second
degree murder. On appeal the second degree murder conviction
was set aside because it was not supported by the evidence, and
the case was remanded for retrial. On remand Green was charged
and convicted of first degree murder. At the second trial Green
did not argue that he was entitled to discharge from further pro-
secution by reason of the appellate finding of insufficient evi-
dence. His only contention was that the prior conviction of second
degree murder was an implicit acquittal of first degree murder.
Willing to submit to a second trial for second degree murder, he

urged that the double jeopardy clause was a bar to retrial for
the greater offense of murder in the first degree. The Govern-
ment took the position that Green had waived his right to object
to retrial for first degree murder by successfully appealing the
conviction of second degree murder.

Recognizing that a waiver of a constitutional right must be
voluntary and knowing, the Court rejected the Government's ar-
gument. To apply waiver to this situation would coerce the re-
linquishment of the double jeopardy defense. It is hardly a volun-

tary waiver to require the accused to forego his defense as the

price of taking an appeal.'^^
A defendant convicted on insufficient evidence is in a similar

plight. He could, of course, serve his sentence and be free of a
subsequent prosecution, but this is hardly an acceptable alterna-
tive. If he appeals on the ground that he should have been acquitted
at trial, and the appellate court is in accord, why should he be any
more subject to retrial than his counterpart who was acquitted at
trial? By imposing a coerced waiver of the double jeopardy de-
fense, courts penalize the accused for successfully attacking an
erroneous judgment. The extension of the Green rationale to re-

60

"Waiver" is a vague term used for a great variety of purposes, good

and bad, in the law. In any normal sense, however, it connotes some

kind of voluntary knowing relinquishment of a right. When a man
has been convicted of second degree murder and given a long term

of imprisonment it is wholly fictional to say that he "chooses" to

forego his constitutional defense of former jeopardy on a charge of

murder in the first degree in order to secure a reversal of an erro-

neous conviction of the lesser offense. In short, he has no meaningful

choice. ...

. . . Conditioning an appeal of one offense on a coerced surrender
of a valid plea of former jeopardy on another offense exacts a for-
feiture in plain conflict with the constitutional bar against double

jeopardy.

Id. at 191-94 (citations omitted). See also Price v. Georgia, 398 U.S. 323

(1970); Benton v. Maryland, 395 U.S. 784 (1969).



1975] APPELLATE ACQUITTAL 617

versals for insufficient evidence would invalidate Bryan as a basis
for remand and retrial/'

More realistically, some courts have discarded the waiver fic-
tion and, while recognizing that retrial does constitute a second
jeopardy, would nonetheless permit it in some instances as a matter
of policy. These courts balance a defendant's right to a fair trial
against society's need to punish the guilty and conclude that re-
trial serves both interests well." This rationale, however, is based
upon the questionable assumption that society has a legitimate in-
terest in the multiple prosecutions of a defendant against whom
a prima facie case was not established at the first trial.

Different considerations are apparent with respect to rever-
sals for reasons other than insufficient evidence. For example,
when a reversal is based upon improper jury instructions or some
pretrial procedural irregularity, a defendant may have been denied
a fair trial even though the evidence of guilt was overwhelming.
It is far better that a defendant be given a fair trial upon re^
mand than to extend the harmless error doctrine as a basis for
affirmance. In such a case, the accused was not entitled to ac-
quittal in the trial court, nor should such relief be afforded in the

appellate court. The security of the community at large may be
preserved by a new trial while also securing the defendant's right
to a fair trial. The defendant who is not shown to be prima facie

*'The Supreme Court has not been called upon to reconcile the Green
decision with Bryan. Since Bryan was grounded upon the same waiver
concept that was later rejected in Green, it is reasonable to assume that
Bryan would be overruled if challenged.

*2In United States v. Tateo, 377 U.S. 463, 466 (1964), Mr. Justice Harlan

argued that appellate courts would be very reluctant to reverse a conviction

if retrial were not available:

While different theories have been advanced to support the per-

missibility of retrial, of greater importance than the conceptual

abstractions employed to explain the Ball principle are the implica-

tions of that principle for the sound administration of justice. Cor-

responding to the right of an accused to be given a fair trial is the

societal interest in punishing one whose guilt is clear after he has

obtained such a trial. It would be a high price indeed for society to

pay were every accused granted immunity from punishment because

of any defect sufficient to constitute reversible error in the pro-

ceedings leading to conviction. From the standpoint of a defendant,
it is at least doubtful that appellate courts would be as zealous as

they now are in protecting against the effects of improprieties at
the trial or pretrial stage if they knew that reversal of a conviction
would put the accused irrevocably beyond the reach of further prose-

cution. In reality, therefore, the practice of retrial serves defendant's

rights as well as society's interest.

Of course, a literal construction of the Federal and Indiana Constitutions
would never permit a second jeopardy regardless of society's interest in
punishing the guilty.



518 INDIANA LAW REVIEW [Vol. 8:497

guilty, however, in theory, represents no threat to the community.
Whether the defendant in such a case is acquitted at trial or upon
appeal should make no difference. In either case the accused should
not be retried.*^

Moreover, the security of the community, preserved by the
imposition of criminal sanctions, has never been the sole con-

sideration of our criminal justice system. Even though defend-
ants may be guilty, countervailing policies immunize from prose-
cution those who have been denied their rights to speedy trials or
who have not been brought to justice within the statutory period.
If public policy requires retrial of defendants acquitted upon ap-
peal, it can also be argued that the same policy requires retrial of
defendants acquitted in the trial court. In either case, the State

may be able to develop additional evidence sufficient to support
a conviction.*'* The double jeopardy bar, however, was explicitly
designed to prohibit this kind of continuing persecution of the

accused."

A final waiver problem was generated, perhaps inadvertently,
by the concurring opinion in Sapir in which it was noted that the
appellant had not asked for new trial relief. "If petitioner had
asked for a new trial, different considerations would come into
play, for then the defendant opens the whole record for such dis-
position as might be just."** This language has been construed
to mean that a defendant who requests a new trial, even as alter-
native relief, has waived his right to discharge at the appellate
level if the evidence is determined to be insufficient. In Forman
the Court distinguished Sapir in part on the ground that petitioner

had made a motion for a new trial, while in Sapir no such motion
was made.*^ Again, this is hardly a "voluntary" waiver as de-
fined in Green. To hold that an appellant must limit his appeal to

*^This was the position of the court in People v. Brown, 99 111. App. 2d
281, 241 N.E.2d 653 (1968), in which it was held that the reason for the
reversal should control the decision as to whether or not there should be a

retrial. It is reasonable to argue that the relief properly afforded on appeal

is that to which the defendant was entitled at trial. A new trial is appro-
priate when the accused was denied a fair trial while appellate acquittal
is proper when acquittal was erroneously denied below.

^'^If retrial is permitted following appellate reversal "the Government is

not limited at a new trial to the evidence presented at the first trial," and
new evidence may be introduced to buttress the case for the prosecution.
United States v. Shotwell Mfg. Co., 355 U.S. 233, 243 (1957). Additionally,
the prosecution may charge new or different offenses arising out of the
same transaction. See United States v. Ewell, 383 U.S. 116 (1966).

*^The policy against multiple prosecutions is reflected in Downum v.
United States, 372 U.S. 734 (1963), in which the jury was discharged at the
commencement of trial because the prosecution's key witness was absent.

**348 U.S. at 374.
*7361 U.S. at 426.



1975] APPELLATE ACQUITTAL 519

the sole issue of sufficiency, or, in the alternative, waive his right
to appellate acquittal is to coerce the relinquishment of a constitu-

tional right. It is a rare case indeed in which counsel would not
want to argue procedural error on appeal in addition to the ques-
tion of the sufficiency of the evidence. Moreover, such a waiver
would be particularly inconsistent with appellate practice in In-
diana. The recently adopted rules of procedure abolish the motion
for a new trial and supplant it with the motion to correct errors
for the express purpose of permitting the consolidation of every
specification of error into a single motion. ''° Even though a new
trial may not be the appropriate relief for each specification,
Trial Rule 59(E) expressly empowers a court to enter all ap-
propriate relief including both the entry of a final judgment and
the grant of a new trial. Moreover, the only court since Forman to
consider the waiver issue firmly rejected its application when the
appellant sought discharge or new trial as alternative relief on
appeal.*'

V. Conclusion

It is anticipated that the doctrine of appellate acquittal will

gain widespread acceptance and eventually become the majority
view if indeed the Supreme Court does not first overrule Bryan
and make the doctrine applicable to the states through the fifth
and fourteenth amendments. Further litigation, however, will be
required to define the full scope and application of the doctrine.
When the evidence at trial is insufficient to prove the commission
of any crime, it is not difficult to conclude that an appellate court
should enter a judgment of acquittal and order the defendant
discharged from further prosecution. What should an appellate
court do, however, when the evidence in the record is insufficient
to prove the crime charged but is more than sufficient to prove a
different offense? If the second crime is one that is a lesser includ-

ed offense of the crime charged, the appellate court may simply
modify the judgment and sustain the conviction for the lesser in-
cluded offense.^° If it is not a lesser included offense, however, the

judgment of conviction may not be modified; it is a violation of
due process of law to convict a person of a crime with which he
is not charged.''' Accordingly, an appellate court would be re-

^^Indiana Civil Code Study Comm'n, Indiana Rules of Civil Pro-
cedure Rule 59, Comments (1968) (proposed final draft).

^'People V. Brown, 99 111. App. 2d 281, 298-99, 241 N.E.2d 653, 661-62

(1968). Moreover, if the rule were applied, it could well be argued that
the appellant received inadequate representation by his counsel who waived
the defense without the client's full knowledge and consent.

^°See Ritchie v. State, 243 Ind. 614, 189 N.E.2d 575 (1963).
^'E.g., Cole v. Arkansas, 333 U.S. 196 (1948).



520 INDIANA LAW REVIEW [Vol. 8:497

quired to reverse the judgment of conviction, and the doctrine of
appellate acquittal would preclude retrial of the defendant for
the crime with which he was charged. It does not necessarily follow,
however, that he could not be retried for the different offense.

The traditional view holds that the defendant was never in jeop-
ardy of the different offense because it was not charged and, there-
fore, the defendant could be subjected to a second trial.^^ This
would be a proper result in view of the fact that, with respect to
the different offense, the reversal is based upon the inadequacy of
the indictment rather than insufficiency of the evidence.

A more serious problem is raised by the case in which the
evidence in the record is insufficient, but the trial court erroneous-

ly excluded evidence for the State which would have cured the
defect. Arguably, the State should be given a second opportunity
to convict the accused since he would not have been entitled to
appellate acquittal absent the error of the trial judge. Retrial would
be, however, contradictory to the underlying purpose of appellate
acquittal—to grant the appellant the relief to which he was en-
titled in the trial court. Since, on the basis of the record evidence,

the defendant was entitled to a judgment of acquittal at the con-
clusion of the trial, the same relief should be made available on ap-
peal. Moreover, an error committed by the trial judge, prejudi-
cial to the prosecution, does not in every case justify a second trial.

In Fong Foo v. United States/^ the Supreme Court refused to
permit a second trial when the trial judge erroneously granted a
motion for judgment of acquittal. A similar result should obtain in
the case in which the trial judge erroneously excludes evidence for
the State. ^^ The defendant should never be subjected to a second
trial if, at the conclusion of the first proceeding, he was entitled to
acquittal on the basis of the record evidence.

72C/. Fritz V. state, 40 Ind. 18 (1872) ; Joy v. State, 14 Ind. 139 (1860).
These cases enunciate the general rule that when the charge is so defective
that a valid judgment of conviction may not be entered under it, the defendant
is not put in jeopardy thereby. One of the underlying purposes of requiring
specificity in the criminal charge is to insure that a judgment on the charge

may be pleaded in bar of a subsequent prosecution for the same offense.
E.g., Fletcher v. State, 241 Ind. 409, 172 N.E.2d 853 (1961) ; Bruce v. State,

230 Ind. 413, 104 N.E.2d 129 (1952) ; McCloskey v. State, 222 Ind. 514, 53

N.E.2d 1012 (1944) ; Garrison v. State, 208 Ind. 690, 193 N.E. 587 (1935)

;

State V. Brown, 208 Ind. 562, 196 N.E. 696 (1935); Foust v. State, 200

Ind. 76, 161 N.E. 371 (1928) ; Brockway v. State, 192 Ind. 656, 138 N.E. 88
(1923) ; Mayhew v. State, 189 Ind. 545, 128 N.E. 599 (1920) ; Skelton v.
State, 173 Ind. 462, 89 N.E. 860 (1909) ; McLaughlin v. State, 45 Ind. 338
(1873); State v. Trueblood, 25 Ind. App. 437, 57 N.E. 975 (1900).

73369 U.S. 141 (1962).

^^See United States v. Sisson, 399 U.S. 267, 289 (1970) (State assumes the
risk of errors by the prosecuting attorney or the trial court). See also note 24
supra.



1975] APPELLATE ACQUITTAL 621

While these and other questions will be raised in Indiana af-
ter adoption of the appellate acquittal doctrine, one must pres-
ently await clarification by the Indiana Supreme Court of the
underlying double jeopardy issue. One would hope that it will not
be long in coming.