Opinion of the Court by MR. JUSTICE BLACK, announced by MR. JUSTICE DOUGLAS.
This case presents a serious question concerning the meaning and application of that provision of the Fifth Amendment to the Constitution which declares that no person shall
The petitioner, Everett Green, was indicted by a District of Columbia grand jury in two counts. The first charged that he had committed arson by maliciously setting fire to a house.
The jury found Green guilty of arson and of second degree murder but did not find him guilty on the charge of murder in the first degree. Its verdict was silent on that charge. The trial judge accepted the verdict, entered the proper judgments and dismissed the jury. Green was sentenced to one to three years' imprisonment for arson and five to twenty years' imprisonment for murder in the second degree. He appealed the conviction of second degree murder. The Court of Appeals reversed that conviction because it was not supported by evidence and remanded the case for a new trial. 95 U. S. App. D. C. 45, 218 F.2d 856.
On remand Green was tried again for first degree murder under the original indictment. At the outset of this second trial he raised the defense of former jeopardy but the court overruled his plea. This time a new jury found him guilty of first degree murder and he was given the mandatory death sentence. Again he appealed. Sitting en banc, the Court of Appeals rejected his defense of former jeopardy, relying on Trono v. United States, 199 U.S. 521, and affirmed the conviction. 98 U. S. App. D. C. 413, 236 F.2d 708. One judge concurred in the result, and three judges dissented expressing the view that Green had twice been placed in jeopardy in violation of the Constitution. We granted certiorari, 352 U.S. 915. Although Green raises a number of other contentions here
The constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. In his Commentaries, which greatly influenced the generation that adopted the Constitution, Blackstone recorded:
Substantially the same view was taken by this Court in Ex parte Lange, 18 Wall. 163, at 169:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity,
In accordance with this philosophy it has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant's jeopardy, and even when "not followed by any judgment, is a bar to a subsequent prosecution for the same offence." United States v. Ball, 163 U.S. 662, 671. Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous. United States v. Ball, supra; Peters v. Hobby, 349 U.S. 331, 344-345. Cf. Kepner v. United States, 195 U.S. 100; United States v. Sanges, 144 U.S. 310.
Moreover it is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge. This Court, as well as most others, has taken the position that a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again. Wade v. Hunter, 336 U.S. 684; Kepner v. United States, 195 U.S. 100, 128. In general see American Law Institute, Administration of The Criminal Law: Double Jeopardy 61-72 (1935). This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict. At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where "unforeseeable circumstances . . . arise during [the first] trial making its completion impossible, such as the failure of a jury to agree on a verdict." Wade v. Hunter, 336 U.S. 684, 688-689.
In this case, however, we have a much different question. At Green's first trial the jury was authorized to find him guilty of either first degree murder (killing while
Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury's verdict as an implicit acquittal on the charge of first degree murder.
After the original trial, but prior to his appeal, it is indisputable that Green could not have been tried again for first degree murder for the death resulting from the fire. A plea of former jeopardy would have absolutely barred a new prosecution even though it might have been convincingly demonstrated that the jury erred in failing to convict him of that offense. And even after appealing the conviction of second degree murder he still could not have been tried a second time for first degree murder had his appeal been unsuccessful.
Nevertheless the Government contends that Green "waived" his constitutional defense of former jeopardy to a second prosecution on the first degree murder charge by making a successful appeal of his improper conviction of second degree murder. We cannot accept this paradoxical contention. "Waiver" is a vague term used for a great variety of purposes, good and bad, in the law. In any normal sense, however, it connotes some kind of voluntary knowing relinquishment of a right. Cf. Johnson v. Zerbst, 304 U.S. 458. When a man has been convicted
It is true that in Kepner, a case arising in the Philippine Islands under a statutory prohibition against double jeopardy, Mr. Justice Holmes dissented from the Court's holding that the Government could not appeal an acquittal in a criminal prosecution. He argued that there was only one continuing jeopardy until the "case" had finally been settled, appeal and all, without regard to how many times the defendant was tried, but that view was rejected by the Court. The position taken by the majority in Kepner is completely in accord with the deeply entrenched principle of our criminal law that once a person has been acquitted of an offense he cannot be prosecuted again on the same charge. This Court has uniformly adhered to that basic premise. For example, in United States v. Ball, 163 U.S. 662, 671, a unanimous Court held:
Reduced to plain terms, the Government contends that in order to secure the reversal of an erroneous conviction of one offense, a defendant must surrender his valid defense of former jeopardy not only on that offense but also on a different offense for which he was not convicted and which was not involved in his appeal. Or stated in the terms of this case, he must be willing to barter his constitutional protection against a second prosecution for an offense punishable by death as the price of a successful appeal from an erroneous conviction of another offense for which he has been sentenced to five to twenty years' imprisonment. As the Court of Appeals said in its first opinion in this case, a defendant faced with such a "choice" takes a "desperate chance" in securing the reversal of the erroneous conviction. The law should not, and in our judgment does not, place the defendant in such an incredible dilemma. Conditioning an appeal of one
The Government argues, however, that we should accept Trono v. United States, 199 U.S. 521, as a conclusive precedent against Green's claim of former jeopardy.
On review by this Court, Mr. Justice Peckham, writing for himself and three other Justices, took the position that by appealing the conviction for assault the defendants waived their plea of former jeopardy with regard to the charge of murder. He said:
Chief Justice Fuller and Justices Harlan, White, and McKenna dissented in Trono. Mr. Justice McKenna wrote a dissent which was concurred in by Justices White and Harlan. During the course of this opinion he stated:
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON, MR. JUSTICE CLARK and MR. JUSTICE HARLAN join, dissenting.
On the basis of the following facts the Court has concluded that petitioner has twice been put in jeopardy of life in violation of the Fifth Amendment to the Constitution.
Petitioner was tried under an indictment on two counts. The first count charged arson under D. C. Code, 1951, § 22-401. The second count charged murder in the first degree under D. C. Code, 1951, § 22-2401, in that in perpetrating the arson petitioner had caused the death of one Bettie Brown. In submitting the case to the jury under the second count, the trial court instructed on both first and second degree murder. The jury returned a verdict finding petitioner guilty of arson under the first count and of second degree murder under the second count; the verdict was silent on the charge of first degree
Petitioner appealed his conviction of second degree murder, contending that there was no evidence to support a verdict for that offense. The Court of Appeals sustained this claim. It reversed the conviction and ordered a new trial on the ground that, since there was no basis in the evidence for finding petitioner guilty of murder in the second degree, it was error to instruct the jury on that issue. 95 U. S. App. D. C. 45, 218 F.2d 856.
Since the prohibition in the Constitution against double jeopardy is derived from history, its significance and scope must be determined, "not simply by taking the words and a dictionary, but by considering [its] . . . origin and the line of [its] . . . growth." Gompers v. United States, 233 U.S. 604, 610.
A principle so deeply rooted in the law of England, as an indispensable requirement of a civilized criminal procedure, was inevitably part of the legal tradition of the English Colonists in America. The Massachusetts Body of Liberties of 1641, an early compilation of principles drawn from the statutes and common law of England, declared that, "No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse," and that "Everie Action betweene partie and partie, and proceedings against delinquents in Criminall causes shall be briefly and destinctly entered on the Rolles of every Court by the Recorder thereof. That such actions be not afterwards brought againe to the vexation of any man." Colonial Laws of Massachusetts 43, 47.
The terms in which Madison introduced into the House what became the specific provision that is our present concern were these: "No person shall be subject, except in cases of impeachment, to more than one punishment
The question that had concerned the House in debating Madison's proposal, the relation between the prohibition against double jeopardy and the power to order a new trial following conviction, was considered at length by Mr. Justice Story, on circuit, in United States v. Gibert, 25 Fed. Cas. 1287, 1294-1303 (1834). The defendants in that case had been found guilty of robbery on the high seas, a capital offense, and moved for a new trial. Mr. Justice Story, after full consideration of the English and American authorities, concluded that the court had no power to grant a new trial when the first trial had been duly had on a valid indictment before a court of competent jurisdiction. According to his view, the prohibition against double jeopardy applied equally whether the defendant
Story's conclusion that English law prohibited, except in rare instances, granting a new trial after conviction of a felony was undoubtedly correct, see The King v. Mawbey, 6 T. R. 619, 638, and on occasion this result has been expressly made to depend on the maxim prohibiting double jeopardy. The Queen v. Murphy, 2 L. R. P. C. 535, 547-548; see The Attorney-General v. Bertrand, 1 L. R. P. C. 520, 531-534; but see The Queen v. Scaife, 17 Q. B. 238. To this day the Court of Criminal Appeals has ordinarily no power to order a new trial even after quashing a conviction on appeal by the defendant, Criminal Appeal Act, 7 Edw. VII, c. 23, s. 4 (2), and repeated efforts to secure this power for the court have met with the argument that a new trial would, at least in spirit, offend the principle that a defendant may not be put twice in jeopardy for the same offense. See 176 H. L. Deb. (5th ser. 1952) 759-763.
The old practice of the English courts, and the position taken by Mr. Justice Story, however, was generally rejected in the United States. The power to grant a new trial in the most serious cases appears to have been exercised by many American courts from an early date in spite of provisions against double jeopardy. United States v. Fries, 3 Dall. 515 (treason); see People v. Morrison, 1 Parker's Crim. Rep. (N. Y.) 625, 626-643 (rape). In United States v. Keen, 26 Fed. Cas. 686, 687-690, a decision rendered only five years after United States v.
Finally, United States v. Ball, 163 U.S. 662-671, expressly rejected the view that the double jeopardy provision prevented a second trial when a conviction had been set aside. Two of the defendants in the case had been convicted of murder, and on writ of error the judgments were reversed with directions to quash the indictment. The same defendants were then convicted on a new indictment. In affirming these convictions the Court said, "it is quite clear that a defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offence of which he had been convicted." 163 U. S., at 672. On a literal reading of the constitutional provision, with an eye exclusively to the interests of the defendants, they had been "once in jeopardy," and were entitled to the benefit of a reversal of their convictions without the hazard of a new trial. The Court recognized, however, that such a wooden interpretation would distort the purposes of the constitutional provision to the prejudice of society's legitimate interest in convicting the guilty as much as,
The precise question now here first came before a federal court in United States v. Harding, 26 Fed. Cas. 131. There three defendants had been jointly indicted and tried for murder. One was convicted of murder and two of manslaughter, and all moved for a new trial. A new trial was ordered for the defendant convicted of murder, and as to the other two defendants the case was continued to allow them to decide whether they would take a new trial or abide by their convictions. Mr. Justice Grier warned these defendants:
In thus assuming that the defendants could be retried for the greater offense of murder without violating the prohibition against double jeopardy, Mr. Justice Grier evidently drew upon a familiar background and what he took to be established practice in the federal courts. To one versed in these traditions, the choice to which the defendants were put in abiding by their convictions or obtaining a new trial, on which the entire question of their guilt would be open to re-examination, seemed legally speaking a matter of course.
Not until Trono v. United States, 199 U.S. 521 (1905), more than fifty years after the Harding case, did the question
This Court affirmed the judgment of the Supreme Court of the Philippines, holding that since the plaintiffs in error had appealed their convictions of the lower offense in order to secure a reversal, there was no bar to convicting them of the higher offense in proceedings in the appellate court that were tantamount to a new trial. After canvassing state and federal precedents, Mr. Justice Peckham concluded that, "the better doctrine is that
The Court in Trono left no doubt that its decision did not turn on any surviving peculiarities of Spanish procedure, or on the fact that the plaintiffs in error relied on a statutory provision rather than on the Fifth Amendment itself. "We may regard the question as thus presented," stated Mr. Justice Peckham, "as the same as if it arose in one of the Federal courts in this country, where, upon an indictment for a greater offense, the jury had found the accused not guilty of that offense, but guilty of a lower one which was included in it, and upon an appeal from that judgment by the accused a new trial had been granted by the appellate court, and the question was whether, upon the new trial accorded, the accused could be again tried for the greater offense . . . ." 199 U. S., at 530. The dissenters did not dispute this view of the case, but on the contrary were concerned with the Court's holding precisely because of its constitutional implications. Mr. Justice Harlan adhered to the view he had taken in earlier cases that the Bill of Rights applied to the Islands, and Mr. Justice McKenna in the principal
The scope and significance of the Trono case is underscored by the Court's decision in Kepner v. United States, 195 U.S. 100, rendered only a year before. That case also arose in the Philippine Islands. The plaintiff in error had been acquitted by the court of first instance of the offense with which he was charged. On appeal by the Government to the Supreme Court of the Islands, the judgment was reversed and the plaintiff in error convicted. In this Court both the Attorney General for the Philippines and the Solicitor General of the United States contended that § 5 of the Act of July 1, 1902, which included the same prohibition against double jeopardy involved in the Trono case, should be construed in the light of the system of law prevailing in the Philippines before they were ceded to the United States. Brief for the Attorney General of the Philippines, pp. 6-16, 29-38; Brief for the Solicitor General, pp. 34-44. Under that jurisprudence, proceedings in the Supreme Court, or Audience, were regarded not as a new trial but as an extension of preliminary proceedings in the court of first instance. The entire proceedings constituted one continuous trial, and the jeopardy that attached in the court of first instance did not terminate until final judgment had been rendered by the Audience.
The Court rejected the Government's contention and held that the proceedings after acquittal had placed the accused twice in jeopardy. Whatever the Spanish tradition, the purpose of Congress was "to carry some at least of the essential principles of American constitutional jurisprudence to these islands and to engraft them upon the law of this people, newly subject to our jurisdiction."
The legislative history of the Philippine Bill of Rights, § 5 of the Act of July 1, 1902, made inevitable the Court's conclusion that by its enactment Congress extended to the Islands the double jeopardy provision of the Fifth Amendment, notwithstanding surviving Spanish procedures, so that the Court should construe the statute as it would the constitutional provision itself. President McKinley, in his famous instructions to the Philippine Commission, dated April 7, 1900, drawn by a leader of the American Bar, Secretary of War Elihu Root, had stated that
The decision in Trono was emphatically a decision of the Court. Although Mr. Justice Holmes concurred in the result only, and not in the opinion of Mr. Justice Peckham, there can be no doubt of where he stood. He had dissented in the Kepner case on the ground that trial and retrial constituted one procedure entailing one continuous jeopardy, and that there could be no second jeopardy until a conviction or acquittal free from legal error had been obtained. He was dissatisfied with the opinion of Mr. Justice Peckham in the Trono case, therefore, not remotely because it upheld the accused's conviction of the greater offense, but because it did not go further and adopt the continuing jeopardy theory Mr. Justice Holmes had espoused in the Kepner case. If there was no double jeopardy for him when the Government appealed an acquittal, obviously there was none when the defendant appealed a conviction. Indeed, in Kepner he explicitly stated that he considered state cases that held the defendant could not be retried for the greater offense to be wrong.
Many statements by this Court since Trono show that the principle of that case cannot in all good conscience
Of special relevance is Stroud v. United States, 251 U.S. 15, 17-18. In that case the defendant was indicted for murder, and the jury returned a verdict of "guilty as charged in the indictment without capital punishment." The judgment was reversed and a new trial had on which the defendant was again found guilty of murder, but without a recommendation against capital punishment. He was then sentenced to death. This Court expressly relied on Trono in affirming the judgment and rejecting the contention that the imposition of a greater punishment had placed the defendant twice in jeopardy. As a practical matter, and on any basis of human values, it is scarcely possible to distinguish a case in which the defendant is convicted of a greater offense from one in which he is convicted of an offense that has the same name as that of which he was previously convicted but carries a significantly different punishment, namely death rather than imprisonment.
Whatever formal disclaimers may be made, neither Trono itself nor the reliance placed upon it for more than
Moreover, the error of the District Court, which was the basis for petitioner's appeal from his first conviction, was of a kind peculiarly likely to raise doubts that the jury on the first trial had made a considered determination of petitioner's innocence of first degree murder. By instructing on second degree murder when the evidence did not warrant a finding of such an offense, the court
We should not be so unmindful, even when constitutional questions are involved, of the principle of stare decisis, by whose circumspect observance the wisdom of this Court as an institution transcending the moment can alone be brought to bear on the difficult problems that confront us. The question in the present case is effectively indistinguishable from that in Trono. Furthermore, we are not here called upon to weigh considerations generated by changing concepts as to minimum standards of fairness, which interpretation of the Due Process Clause inevitably requires. Instead, the defense of double jeopardy is involved, whose contours are the product of history. In this situation the passage of time is not enough, and the conviction borne to the mind of the rightness of an overturning decision must surely be of a highly compelling quality to justify overruling a well-established precedent when we are presented with no considerations fairly deemed to have been wanting to those who preceded us. Whatever might have been the allowable result if the question of retrying a defendant for the greater offense were here for the first time, to fashion a policy in favorem vitae, it is foreclosed by the decision in Trono v. United States.
Even if the question were here for the first time, we would not be justified in erecting the holding of the present case as a constitutional rule. Yet the opinion of the Court treats the question, not as one within
Such an approach misconceives the purposes of the double jeopardy provision, and without warrant from the Constitution makes an absolute of the interests of the accused in disregard of the interests of society. In Palko v. Connecticut, 302 U.S. 319, we held that a State could permit the prosecution to appeal a conviction of second degree murder and on retrial secure a conviction of first degree murder without violating any "fundamental principles of liberty and justice." Since the State's interest in obtaining a trial "free from the corrosion of substantial legal error" was sufficient to sustain the conviction of the greater offense after an appeal by the State, it would of course sustain such a conviction if the defendant had himself appealed. Although this case defined conduct permissible under the Due Process Clause of the Fourteenth Amendment, it cannot wisely be ignored in tracing the constitutional limits imposed on the Federal Government. Nor should we ignore the fact that a substantial body of opinion in the States permits what today the Court condemns as violative of a "vital safeguard in our society."
Undeniably the framers of the Bill of Rights were concerned to protect defendants from oppression and from
I would affirm the judgment.
Section 22-2404 provides that the "punishment of murder in the first degree shall be death by electrocution."
§ 22-2404. "The punishment of murder in the second degree shall be imprisonment for life, or for not less than twenty years."
"The prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial."
It is immaterial whether second degree murder is a lesser offense included in a charge of felony murder or not. The vital thing is that it is a distinct and different offense. If anything, the fact that it cannot be classified as "a lesser included offense" under the charge of felony murder buttresses our conclusion that Green was unconstitutionally twice placed in jeopardy. American courts have held with uniformity that where a defendant is charged with two offenses, neither of which is a lesser offense included within the other, and has been found guilty on one but not on the second he cannot be tried again on the second even though he secures reversal of the conviction and even though the two offenses are related offenses charged in the same indictment. See, e. g., Annotation, 114 A. L. R. 1406.
Colorado.—See Young v. People, 54 Colo. 293, 298-307.
Connecticut.—See State v. Lee, 65 Conn. 265, 271-278; State v. Palko, 122 Conn. 529, 538-539, 541, aff'd 302 U.S. 319.
Georgia.—Brantley v. State, 132 Ga. 573, 574-579, aff'd 217 U.S. 284; Perdue v. State, 134 Ga. 300, 302-303.
Indiana.—See Ex parte Bradley, 48 Ind. 548, 549-558; State ex rel. Lopez v. Killigrew, 202 Ind. 397, 403-406.
Kansas.—State v. McCord, 8 Kan. 232, 240-244; see In re Christensen, 166 Kan. 671, 675-677.
Kentucky.—Hoskins v. Commonwealth, 152 Ky. 805, 807-808.
Mississippi.—Jones v. State, 144 Miss. 52, 60-73, motion for leave to proceed in forma pauperis denied for want of substantial federal question, 273 U.S. 639 (citing Trono v. United States); Butler v. State, 177 Miss. 91, 100.
Missouri.—See State v. Simms, 71 Mo. 538, 540-541; State v. Stallings, 334 Mo. 1, 5.
Nebraska.—Bohanan v. State, 18 Neb. 57, 58-77, submission of cause set aside because of escape of plaintiff in error, 125 U.S. 692; Macomber v. State, 137 Neb. 882, 896.
Nevada.—In re Somers, 31 Nev. 531, 532-539; see State v. Teeter, 65 Nev. 584, 610.
New Jersey.—See State v. Leo, 34 N. J. L. J. 340, 341-342, 356.
New York.—People v. Palmer, 109 N.Y. 413, 415-420; People v. McGrath, 202 N.Y. 445, 450-451.
North Carolina.—State v. Correll, 229 N.C. 640, 641-642; see State v. Matthews, 142 N.C. 621, 622-623.
Ohio.—State v. Behimer, 20 Ohio St. 572, 576-582; State v. Robinson, 100 Ohio App. 466, 470-472.
Oklahoma.—Watson v. State, 26 Okla.Cr. 377, 379-390; see Pierce v. State, 96 Okla.Cr. 76, 79.
South Carolina.—See State v. Gillis, 73 S.C. 318, 319-324; State v. Steadman, 216 S.C. 579, 588-592.
Utah.—State v. Kessler, 15 Utah. 142, 144-147.
Vermont.—See State v. Bradley, 67 Vt. 465, 472-474; State v. Pianfetti, 79 Vt. 236, 246-247.
Washington.—State v. Ash, 68 Wn. 194, 197-203; State v. Hiatt, 187 Wn. 226, 236.
In eight of these States, Indiana, Kansas, Kentucky, Nevada, New York, Ohio, Oklahoma, and Utah, this result is based to some extent on statutes defining the effect of granting a new trial. In four, Colorado, Georgia, Mississippi and Missouri, on special constitutional provisions that permit retrial for the greater offense. Connecticut, North Carolina, and Vermont have no constitutional provisions as to double jeopardy, but recognize the common-law prohibition.
In 17 States the defendant cannot be retried for the greater offense:
Alabama.—See Thomas v. State, 255 Ala. 632, 635-636.
Arkansas.—Johnson v. State, 29 Ark. 31, 32-46; see Hearn v. State, 212 Ark. 360, 361.
California.—People v. Gilmore, 4 Cal. 376; People v. Gordon, 99 Cal. 227, 228-232; In re Hess, 45 Cal.2d 171, 175-176; but see People v. Keefer, 65 Cal. 232, 234-235; People v. McNeer, 14 Cal.App.2d 22, 27-30; In re Moore, 29 Cal.App.2d 56.
Delaware.—See State v. Naylor, 28 Del. 99, 114-115, 117.
Florida.—State ex rel. Landis v. Lewis, 118 Fla. 910, 911-916; see McLeod v. State, 128 Fla. 35, 37; Simmons v. State, 156 Fla. 353, 354.
Illinois.—Brennan v. People, 15 Ill. 511, 517-519; People v. Newman, 360 Ill. 226, 232-233.
Iowa.—State v. Tweedy, 11 Iowa 350, 353-358; State v. Coleman, 226 Iowa 968, 976.
Louisiana.—See State v. Harville, 171 La. 256, 258-262.
Michigan.—People v. Farrell, 146 Mich. 264, 266, 269, 272-273, 294; People v. Gessinger, 238 Mich. 625, 627-629.
New Mexico.—State v. Welch, 37 N.M. 549, 559; State v. White, 61 N.M. 109, 113.
Oregon.—State v. Steeves, 29 Or. 85, 107-111; State v. Wilson, 172 Or. 373, 382.
Pennsylvania.—Commonwealth v. Deitrick, 221 Pa. 7, 17-18; Commonwealth v. Flax, 331 Pa. 145, 157-158.
Tennessee.—See Slaughter v. State, 6 Humph. 410, 413-415; Reagan v. State, 155 Tenn. 397, 400-402.
Texas.—Jones v. State, 13 Tex. 168, 184-185; Brown v. State, 99 Tex. Cr. R. 19, 21-22; but see Hill v. State, 126 Tex. Cr. R. 79, 80-81; Joubert v. State, 136 Tex. Cr. R. 219, 220-221; Beckham v. State, 141 Tex. Cr. R. 438, 442; Hall v. State, 145 Tex. Cr. R. 192, 194; Ex Parte Byrd, 157 Tex. Cr. R. 595, 597-598.
Virginia.—Stuart v. Commonwealth, 28 Gratt. 950, 953-964; see Taylor v. Commonwealth, 186 Va. 587, 589-590, 592.
West Virginia.—See State v. Franklin, 139 W.Va. 43, 64.
Wisconsin.—Radej v. State, 152 Wis. 503, 511-513; but see State v. B__________, 173 Wis. 608, 616-628; State v. Witte, 243 Wis. 423, 427-431; State v. Evjue, 254 Wis. 581, 586-592.
In two of these States, Virginia and Texas, the result is based to some extent on statutes prohibiting retrial for the greater offense, and in New Mexico on a constitutional provision to the same effect.