Summary
reviewing court concluded, after reviewing record, that dismissal was with prejudice
Summary of this case from State v. MageoOpinion
No. 20542.
Argued April 3, 1967.
Decided April 14, 1967.
Mr. Noel H. Thompson, Washington, D.C. (appointed by this court) for appellant.
Mr. Arthur L. Burnett, Asst. U.S. Atty., with whom Messrs. David G. Bress, U.S. Atty., Frank Q. Nebeker and Donald S. Smith, Asst. U.S. Attys., were on the brief, for appellee.
Before FAHY, McGOWAN and TAMM, Circuit Judges.
An indictment of appellant for unauthorized use of a vehicle, in violation of D.C. Code § 22-2204, was dismissed by the District Court December 9, 1965. Upon consideration of the record relating to the dismissal we conclude that it was with prejudice. Nevertheless, a few days thereafter, December 15, 1965, appellant was again indicted for the same offense. His motion to dismiss the second indictment due to the bar created by the earlier dismissal with prejudice was denied. We think it should have been granted. The dismissal with prejudice constituted an adjudication which barred another prosecution for the same offense. United States v. Oppenheimer, 242 U.S. 85, 37 S. Ct. 68, 61 L.Ed. 161; District of Columbia v. Weams, 208 A.2d 617, 619 (D.C. Mun.App.). Appellant's conviction under the second indictment, now before us on this appeal, accordingly must be set aside and the case remanded for dismissal of that indictment.
See Mann v. United States, 113 U.S.App. D.C. 27, 304 F.2d 394, where dismissal of the indictment was granted explicitly without prejudice and reindictment was held proper.
It is so ordered.