421 FRANKFURTER, J., dissenting. Commission should be able to assume that discrimination shown to exist as to the particular segments of intrastate and interstate traffic with which the § 13 (4) proceeding is concerned is not offset by other conditions that this - Court speculates may affect wholly different segments of intrastate commerce. The record in the present case is devoid of the remotest suggestion that the Utah intrastate passenger deficit is any less than the interstate passenger deficit, and the Commission should not be required to seek out such evidence itself and make findings beyond those it has already made. This is a solution that accommodates imponderables and does not demand precision where the nature of the subject can yield only approximations. It is a solution responsive to the difficult regulatory problems posed by § 13 (4). Embedded in it are some of the advantages in simplicity of administration that would follow if this Court had expanded, as it might well have done, the doctrine of discrimination against persons or localities to permit state-wide orders protecting all interstate shippers against discrimination without reference to revenues. At the same time, there remains an opportunity for intrastate shippers or a state commission to show to the Interstate Commerce Commission's satisfaction the existence of specific factors favoring intrastate traffic in general that should not wisely be ignored. It is the solution that seems best designed to achieve the purposes of the Act without interposing insurmountable obstacles to the effective regulation of the national transportation system, the responsibility for which rests, after all, predominantly with the Interstate Commerce Commission. Syllabus. 356 U.S. HOAG v. NEW JERSEY. CERTIORARI TO THE SUPREME COURT OF NEW JERSEY. No. 40. Argued November 19, 1957. Decided May 19, 1958. In a New Jersey State Court, petitioner was tried and acquitted on three separate indictments (joined for trial) for statutory robbery of three persons on the same occasion. Subsequently, he was indicted, tried and convicted for robbing a fourth person during the same occurrence. Held: His conviction did not violate the Due Process Clause of the Fourteenth Amendment. Pp. 465-473. (a) He was not put twice in jeopardy for the same crime. New Jersey construes the statute under which he was indicted as making each of the four robberies, though taking place on the same occasion, a separate offense; and nothing in the Due Process Clause prevented the State from making that construction. Pp. 466-467. (b) In the circumstances of this case, he was not deprived of due process by consecutive trials, even though the multiple offenses arose out of the same occurrence. Pp. 467-470. (c) Whether States must apply collateral estoppel in criminal trials need not be decided; because the state courts held that petitioner's acquittal did not give rise to such an estoppel, and this Court would not be justified in substituting its view as to the basis of the jury's verdict. Pp. 470-472. (d) In the circumstances of this case, he was not denied a speedy trial. P. 472. (e) The sufficiency of the evidence to support the identification of petitioner as one of the robbers is a matter solely within the province of the state courts. Pp. 472-473. 21 N. J. 496, 122 A. 2d 628, affirmed. Robert E. Knowlton, acting under appointment by the Court, 352 U. S. 958, argued the cause and filed a brief for petitioner. David D. Furman, Deputy Attorney General of New Jersey, argued the cause for respondent. With him on the brief was Grover C. Richman, Jr., Attorney General. 464 Opinion of the Court. MR. JUSTICE HARLAN delivered the opinion of the Court. In this case we are asked to set aside, under the Due Process Clause of the Fourteenth Amendment, a state conviction secured under somewhat unusual circumstances. On June 26, 1951, a Bergen County, New Jersey, grand jury returned three indictments against the petitioner charging that on September 20, 1950, in concert with two others, he robbed three individuals, Cascio, Capezzuto and Galiardo, at Gay's Tavern in Fairview, New Jersey. These indictments were joined for trial. The State called five witnesses: the three victims named in the indictment, and two other persons, Dottino and Yager. Dottino and Yager were also victims of the robbery, but they were not named in the indictment. All the witnesses, after stating that they were in Gay's Tavern on September 20, testified to the elements of a robbery as defined in the New Jersey statute: that they were put in fear and that property was taken from their persons. The petitioner, who claimed that he was not at the tavern on the fateful day and testified to an alibi, was the sole witness for the defense. Although Galiardo and Dottino had both identified petitioner from a photograph during the police investigation, only one of the witnesses, Yager, identified him at the trial as one of the robbers. On May 27, 1952, the jury acquitted the petitioner on all three indictments. 1 Section 2:166-1 of the Revised Statutes of New Jersey, under which petitioner was indicted, provided: "Any person who shall forcibly take from the person of another, money or personal goods and chattels, of any value whatever, by violence or putting him in fear . . . shall be guilty. . . ." This section was subsequently repealed and substantially re-enacted. N. J. Stat. Ann., 1953, § 2A:141-1. Opinion of the Court. 356 U.S. Subsequently, on July 17, 1952, another Bergen County grand jury returned a fourth indictment against petitioner, which was the same as the first three in all respects except that it named Yager as the victim of the robbery at Gay's Tavern. At the trial upon this indictment the State called only Yager as a witness, and he repeated his earlier testimony identifying petitioner. The defense called Cascio, Capezzuto, Galiardo and Dottino, and they each once again testified either that petitioner was not one of the robbers or that a positive identification was not possible. Petitioner repeated his alibi. This time the jury returned a verdict of guilty. The conviction was sustained on appeal in both the Superior Court of New Jersey, 35 N. J. Super. 555, 114 A. 2d 573, and the Supreme Court of New Jersey, 21 N. J. 496, 122 A. 2d 628. We granted certiorari to consider petitioner's claim, timely raised below, that he was deprived of due process. 352 U. S. 907. Petitioner contends that the second prosecution growing out of the Gay's Tavern robberies infringed safeguards of the Double Jeopardy Clause of the Fifth Amendment which are "implicit in the concept of ordered liberty" and that these safeguards as such are carried over under the Fourteenth Amendment as restrictions on the States. Palko v. Connecticut, 302 U. S. 319, 325. More particularly, it is said that petitioner's trial for the robbery of Yager, following his previous acquittal on charges of robbing Cascio, Capezzuto, and Galiardo, amounted to trying him again on the same charges. However, in the circumstances shown by this record, we cannot say that petitioner's later prosecution and conviction violated due process. At the outset it should be made clear that petitioner has not been twice put in jeopardy for the same crime. The New Jersey courts, in rejecting his claim that conviction for robbing Yager violated the Double Jeopardy 464 Opinion of the Court. Clause of the State Constitution,2 have construed the New Jersey statute as making each of the four robberies, though taking place on the same occasion, a separate offense. This construction was consistent with the usual New Jersey rule that double jeopardy does not apply unless the same evidence necessary to sustain a second indictment would have been sufficient to secure a conviction on the first. See State v. Di Giosia, 3 N. J. 413, 419, 70 A. 2d 756, 759; State v. Labato, 7 N. J. 137, 144, 80 A. 2d 617, 620. Certainly nothing in the Due Process Clause prevented the State from making that construction. But even if it was constitutionally permissible for New Jersey to punish petitioner for each of the four robberies as separate offenses, it does not necessarily follow that the State was free to prosecute him for each robbery at a different trial. The question is whether this case involved an attempt "to wear the accused out by a multitude of cases with accumulated trials." Palko v. Connecticut, supra, at 328.3 We do not think that the Fourteenth Amendment always forbids States to prosecute different offenses at consecutive trials even though they arise out of the same occurrence. The question in any given case is whether such a course has led to fundamental unfairness. Of course, it may very well be preferable practice for a State 2 Article I, par. 11, of the New Jersey Constitution provides in part that "No person shall, after acquittal, be tried for the same offense." 3 Indeed, the New Jersey Superior Court recognized this problem under the double jeopardy clause of the State Constitution when it said in the present case: "Assuredly our prosecutors are aware that the concept of double jeopardy is designed to prevent the government from unduly harassing an accused, and we are confident that they will not resort unfairly to multiple indictments and successive trials in order to accomplish indirectly that which the constitutional interdiction precludes." 35 N. J. Super., at 561-562, 114 A. 2d, at 577. |