United States v. Williams (341 U.S. 70)/Concurrence Black
Mr. Justice BLACK, concurring.

This is one of three prosecutions of respondents Williams, Ford, Bombaci and Perry arising out of their alleged conduct in brutally coercing confessions from certain persons suspected of theft. The first prosecution was under an indictment charging respondents and two other defendants not now before us with violation of the substantive offense and conspiracy sections of the Civil Rights Act. 18 U.S.C. (1946 ed.) §§ 51, 52 now 18 U.S.C. §§ 241, 242. That trial resulted in conviction of respondent Williams and acquittal of the other five on the substantive counts; a mistrial was declared as to all defendants on the conspiracy counts.  Shortly thereafter two new indictments were returned: One again charged the six defendants with the same conspiracy; the other charged four of them with having committed perjury during their first trial.  On the second trial for conspiracy all were convicted and it is these convictions of respondents that we review in the present case.

I am convinced from the records before us that the principle of res judicata should have barred the Government from trying respondents on this second indictment for conspiracy. In the first trial the judge instructed the jury to convict on the substantive counts all defendants who either committed that crime or aided, abetted, assisted, counseled, encouraged, commanded, induced, procured or incited any other person to do so. Acquittal of the five defendants was, therefore, a final determination that they had done none of these things, or, in effect, that they had nothing to do with the commission of the substantive offense itself. The principle of res judicata of course precludes a relitigation of the same factual issues in any subsequent trial. Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180. This being true, the broad scope of the facts found adversely to the Government in the first trial barred a conviction of the five defendants upon the second trial because there is no evidence that they conspired except insofar as the unlawful agreement can be inferred from their having participated in some way in the substantive crime. Consequently, the conspiracy convictions cannot stand as to respondents Ford, Bombaci and Perry, these three being among those previously found not guilty of the substantive charge.

Nor should the conspiracy conviction of respondent Williams stand under these circumstances. The indictment did not allege and there was no evidence to suggest that he conspired with any one other than the five named defendants. As a result, when the Government was precluded by res judicata from proving the guilt of any of Williams' alleged co-conspirators, the basis of the conspiracy charged as to Williams was necessarily removed since one person obviously cannot conspire with himself. Cf. Morrison v. People of State of California, 291 U.S. 82, 93, 54 S.Ct. 281, 286, 78 L.Ed. 664; Feder v. United States, 2 Cir., 257 F. 694, 5 A.L.R. 370; see also the cases collected in 72 A.L.R. 1180, 1186-1187; 97 A.L.R. 1312, 1313, 1316-1317.

Because, for the foregoing reasons, I believe the conspiracy convictions of respondents must fail, I find it unnecessary to determine whether 18 U.S.C. (1946 ed.) § 51, now 18 U.S.C. (1946 ed., Supp. III) § 241, 18 U.S.C.A. § 241, as applied, is too vague and uncertain in scope to be consistent with the Fifth Amendment.

Mr. Justice DOUGLAS, with whom Mr. Justice REED, Mr. Justice BURTON, and Mr. Justice CLARK concur, dissenting. 

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