wade hunter argued march decided april rehearing denied may see wade hunter brewster kansas city snyder kansas city petitioner oscar davis washington respondent justice black delivered opinion fifth amendment constitution provides person shall twice put jeopardy life limb offense petitioner prison conviction serious offense contends entitled freedom another martial previously put jeopardy offense first dissolved convening authority reached decision government contends fifth amendment provision applicable military courts bar second conviction government views record dissolution first dictated pressing military tactical situation circumstances contentions arise follows march american troops infantry division entered krov germany next afternoon two german women raped two men american uniforms several days later petitioner another american soldier arrested upon charges committed offenses two weeks later march troops advanced miles farther germany place called pfalzfeld date pfalzfeld petitioner soldier put trial general convened order commanding general infantry division division two soldiers attached hearing evidence arguments counsel closed consider case later day reopened announced continued later date fixed judge advocate reason continuance desire hear witnesses available deciding guilt innocence accused week later commanding general division withdrew charges directing take proceedings general transmitted charges commanding general third army recommendations trial new reason transferring charges explained communication commanding general third army case previously referred trial general trial commenced two witnesses mother father victim alleged rape unable present due sickness continued case testimony obtained due tactical situation distance residence witnesses become great case compl ted within reasonable time commanding general third army concluded situation command distance krov made impracticable third army conduct accordingly turn transmitted charges fifteenth army stating action necessary carry policy american army europe accelerate prompt trials immediate vicinity alleged offenses pursuant transmittal fifteenth army commanding general convened point forty miles krov petitioner represented counsel filed plea bar alleging put jeopardy first martial proceedings tried plea overruled case tried conviction followed sentenced dishonorable discharge forfeiture pay allowances life imprisonment imprisonment later reduced twenty years exhausting right military review petitioner brought habeas corpus proceeding federal district ordered release holding plea former jeopardy sustained appeals reversed one judge dissenting hold circumstances shown fifth amendment provision bar petitioner trial second interpretation application fifth amendment jeopardy provision bene considered chiefly civil rather military proceedings past cases decided defendant put trial jury may subjected kind bars second trial offense even though trial discontinued without verdict see kepner cf palko connecticut may true judge trying case without jury fails reason enter judgment mccarthy zerbst provision fifth amendment however mean every time defendant put trial competent tribunal entitled go free trial fails end final judgment rule create insuperable obstacle administration justice many cases semblance type oppressive practices prohibition aimed may unforeseeable circumstances arise trial making completion impossible failure jury agree verdict event purpose law protect society guilty crimes frequently frustrated denying courts power put defendant trial instances trial judge discovered facts trial indicated one members jury might biased government defendant settled duty judge event discharge jury direct retrial said enough show defendant valued right trial completed particular tribunal must instances subordinated public interest fair trials designed end judgments justice requires particular trial discontinued question decided persons conversant factors relevant determination guiding rule federal courts determining trials discontinued outlined perez wheat case trial judge without consent defendant government discharged jury members unable agree defendant claimed tried prayed discharge matter right answering claim said wheat page think cases nature law invested courts justice authority discharge jury giving verdict whenever opinion taking circumstances consideration manifest necessity act ends public justice otherwise defeated exercise sound discretion subject impossible define circumstances render proper interfere sure power used greatest caution urgent circumstances plain obvious causes capital cases especially courts extremely careful interfere chances life favour prisoner right order discharge security public faithful sound conscientious exercise discretion rests cases upon responsibility judges oaths office rule announced perez case basis later decisions double jeopardy attempts lay rigid formula rule trial discontinued particular circumstances manifest necessity failure discontinue defeat ends justice see reason broad test applied deciding whether action runs counter fifth amendment provision double jeopardy measured perez rule adhere petitioner second trial kind double jeopardy within intent fifth amendment claim went beyond powers temporarily continuing trial obtain benefit witnesses district viewed record showing purpose dissolving get witnesses purpose district held kind necessity came within recognized exception provision see cornero urged apply cornero interpretation necessity rule asked adopt cornero rule petitioner contends absence witnesses never justify discontinuance trial rigid formula inconsistent guiding principles perez decision adhere principles command courts considering whether trial terminated without judgment take circumstances account thereby forbid mechanical application abstract formula value perez principles thus lies capacity informed application widely different circumstances without injury defendants public interest furthermore record sufficient show tactical situation brought rapidly advancing army responsible withdrawal charges first appears first order transmittal charges order made commanding general division responsible convening also responsible effective military employment division carrying plan invasion germany intimation record tactical situation require transfer order composed officers invading army division momentous issues hung invasion assume officers needed perform military functions perez case said sound discretion presiding judge accepted necessity discontinuing trial case presents extraordinary reasons judgment commanding general accepted courts least absence charges bad faith part commanding general courts attempt review decision tactical situation required transfer charges affirmed justice murphy justice douglas justice rutledge agree dissenting agree military courts civil jeopardy within meaning fifth amendment attaches begins hearing evidence agree also valid charge pending first concerned jurisdiction person petitioner first evidence introduced fact sides completed presentation cases submitted oral argument closed consider decision later opened motion purpose hearing testimony three named witnesses expected shed light question identification commanding general unit comprising petitioner trying withdrew charges dissolved transmitted papers commanding general third army recommendation trial eneral subsequently transferred commanding general fifteenth army referred case trial general petitioner tried convicted overruled plea former jeopardy based prior proceeding commanding general fifteenth army recommendation staff judge advocate approved finding guilty reduced period confinement life twenty years case assigned review board review consisting three judge advocates branch office judge advocate general european theater board sitting paris close scene military operations filed unanimous opinion effect plea bar consequently record trial legally insufficient support findings sentence assistant judge advocate general filed dissenting opinion sentence confirmed commanding general european theater habeas corpus proceedings district agreed board review plea double jeopardy sustained appeals reversed one judge dissenting doubt wade placed jeopardy first trial holds decision commanding officer assessing tactical military situation sufficient deprive right constitution free twice subjected trial offense reading constitution agree harassment defendant repeatedly tried less army advancing guarantee constitution double jeopardy eroded away tide appearing exceptions command fifth amendment allow temporizing basic rights declares adaptations military justice exigencies tactical situations prerogative commander field price expediency compliance constitution reverse judgment footnotes charges article war member desires witnesses called case allow time secure witnesses case continued like witnesses brought parents person making accusation rosa glowsky also room assist identification identity accused continued later date set rial udge dvocate soldier acquitted acting army judge advocate reviewing petitioner conviction said witnesses german positively identified accused wade witnesses failed identify soldier holding circumstances fifth amendment bar trial second makes unnecessary consider following questions discussed government brief extent overruling plea former jeopardy subject collateral attack habeas corpus proceedings see carter mcclaughry cf grafton sunal large cases collected page validity fortieth article war stat article provides part follows person shall without consent tried second time offense proeeding accused found guilty upon charge specification shall held trial sense article reviewing one confirming authority shall taken final action upon case simmons thompson see simmons logan keerl montana lovato new mexico manual par recommends evidence appears insufficient proper determination issue matter may ordinarily take appropriate action view obtaining available additional evidence necessary advisable determination may instance require trial judge advocate recall witness summon new witnesses make investigation inquiry along certain lines view discovering producing additional evidence opinion board review reads part follows see nothing renders absence witnesses shown record trial case emergent situation exception rule federal courts witnesses may lie beyond reach process process issues witnesses may respond oral promises appear may kept may become ill trial difficulties proof grounds termination trial second prosecution imperious necessity means sudden overwhelming emergency uncontrollable unforeseeable infecting judicial process rendering fair impartial trial impossible mean expediency transcript record