John Marshall Harlan II

“ Care must be taken, however, to respect the limits up to which Congress was prepared to enact a particular policy, especially when the boundaries of a statute are drawn as a compromise resulting from the countervailing pressures of other policies. Our disagreeing Brothers, in seeking to energize the congressional commitment to review, ignore the subtlety of the compromise that limited our jurisdiction, thereby garnering the votes necessary to enact the Criminal Appeals Act. ”

“ He said:
'The arrest of judgment * * * on which an appeal lies, is not a general motion covering all the grounds on which a judgment may be arrested. It is simply for arrest of judgment because of the insufficiency of the indictment-that is, the failure of the indictment to charge a criminal offense.' 41 Cong.Rec. ”

“ Even assuming reliance on a formal stipulation were permissible, it would still be intolerable to allow direct review whenever the District Court labels its decision a motion in arrest, and the Government merely accepts the lower court's factual findings made after a trial-for this would mean the parties and the lower court simply could foist jurisdiction upon this Court. ”

“ As we have shown earlier, the court's findings were based on Sisson's testimony and demeanor at the trial itself. Moreover, a defense based on Sisson's asserted constitutional privilege not to be required to fight in a particular war would, we think, necessarily be part of the 'general issue' of a suit over a registrant's refusal to submit to induction. As THE CHIEF JUSTICE says in his dissenting opinion, 'establishing the appropriate classification is actually an element of the Government's case,' post, at 324, once a defendant raises a defense challenging it. ”

“ We think a defense to a pre-induction suit based on conscientious objections that require factual determinations is so intertwined with the general issue that it must be tried with the general issue, United States v. Fargas, D.C., 267 F.Supp. 452, 455 (1967) (pretrial motion to dismiss under Rule 12 (b) (1) on the basis of an affidavit, denied because 'the validity of the (conscientious objector) defense which Fargas now raises * * * will require the consideration of factual questions which are embraced in the general issue') ”

“ Criminal appeals by the Government 'always threaten to offend the policies behind the double-jeopardy prohibition,' Will v. United States, supra, 389 U.S. at 96, 88 S.Ct. at 274, even in circumstances where the Constitution itself does not bar retrial. Out of a collision between this policy concern, and the competing policy favoring review, Congress enacted a bill that fully satisfied neither the Government nor the bill's opponents. ”

“ This venerable requirement of the common law has been preserved under the Federal Rules of Criminal Procedure, for the courts have uniformly held that in granting a motion in arrest of judgment under Rule 34, [12] a district court must not look beyond the face of the record. E.g., United States v. Zisblatt, 172 F.2d 740 (C.A.2d Cir.) , appeal dismissed on Government's motion, 336 U.S. 934, 69 S.Ct. ”

“ It should be noted that at the Government's request a proposed amendment to § 3731 has been introduced in Congress to remove this limitation. The proposed statute, which avoids common-law terminology, would allow an appeal from a decision made after the jury was sworn in all cases where the Double Jeopardy Clause would permit it. See H.R. 14588, 91st Cong., 1st Sess., 115 Cong.Rec. H10274 (daily ed. Oct. 29, 1969) .↑ See 1907 Rep.Atty.Gen. 4; see also Hearing on Granting Appeals by the United States from Decisions Sustaining Motions to Suppress Evidence, before Subcommittee No. ”

“ Apex Distributing Co., 270 F.2d 747, 755 (C.A.9th Cir. 1959) .↑ See the Attorney General's Annual Reports for 1892, pp. xxiv-xxv; for 1893, p. xxvi; for 1894, p. xxix; for 1899, p. 33; for 1900, p. 40; for 1903, p. vi; for 1905, p. 10; for 1906, p. 4. ”