MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted the writ to consider the power of a State to retry an accused for murder after an earlier guilty verdict on the lesser included offense of voluntary manslaughter had been set aside because of a trial error.
Petitioner was charged with the killing of Johnnie Mae Dupree in an indictment for the offense of murder filed in the Superior Court of Effingham County, Georgia. He entered a plea of not guilty and was tried on October 17, 1962. The jury returned a verdict of guilty to the lesser included crime of voluntary manslaughter and fixed the sentence at 10 to 15 years in the state penitentiary. The jury's verdict made no reference to the charge of murder.
On October 20, 1967, petitioner was again placed on trial for murder under the original indictment. Before the commencement of the second trial petitioner entered a plea of autrefois acquit, claiming that to place him again on trial for the offense of murder would expose him to double jeopardy in view of the verdict of voluntary manslaughter at the initial trial. The trial judge rejected the plea and, at the close of the trial, included instructions on the offense of murder in his charge to the jury so that the jury could have rendered a verdict of guilty on that offense. That jury, like the first, found petitioner guilty of voluntary manslaughter, and then fixed the penalty at 10 years' imprisonment.
The Georgia Court of Appeals then heard the appeal and affirmed the second conviction, rejecting petitioner's argument, among others, that his retrial for murder constituted double jeopardy. Price v. State, 118 Ga.App. 207, 163 S.E.2d 243 (1968). The Court of Appeals held that in Brantley v. State, 132 Ga. 573, 64 S. E. 676 (1909), aff'd, 217 U.S. 284 (1910), the Georgia Supreme Court had decided this question adversely to petitioner. The Court of Appeals then quoted from the Brantley case's syllabus:
Petitioner sought a rehearing, contending, as he contends here, that Brantley was no longer controlling. He relied on Green v. United States, 355 U.S. 184 (1957), and
In United States v. Ball, 163 U.S. 662, 669 (1896), this Court observed: "The Constitution of the United States, in the Fifth Amendment, declares, 'nor shall any person be subject [for the same offense] to be twice put in jeopardy of life or limb.' The prohibition is not against being twice punished, but against being twice put in jeopardy . . . ." (Emphasis added.) The "twice put in jeopardy" language of the Constitution thus relates to a potential, i. e., the risk that an accused for a second time will be convicted of the "same offense" for which he was initially tried.
The circumstances that give rise to such a forbidden potential have been the subject of much discussion in this Court. In the Ball case, for example, the Court expressly rejected the view that the double jeopardy provision prevented a second trial when a conviction had been set aside. In so doing, it effectively formulated a concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course. See Green v. United States, 355 U.S. 184, 189 (1957).
The continuing jeopardy principle necessarily is applicable to this case. Petitioner sought and obtained the
An early case to deal with restrictions on retrials was Kepner v. United States, 195 U.S. 100 (1904), where the Court held that the Fifth Amendment's double jeopardy prohibition barred the Government from appealing an acquittal in a criminal prosecution,
Similar double jeopardy issues did not fully claim the Court's attention until the Court heard argument in Green v. United States, 355 U.S. 184 (1957).
The Court in the Green case reversed the first-degree murder conviction obtained at the retrial, holding that the petitioner's jeopardy for first-degree murder came to an end when the jury was discharged at the end of his first trial. This conclusion rested on two premises. First, the Court considered the first jury's verdict of guilty on the second-degree murder charge to be an "implicit acquittal" on the charge of first-degree murder.
The rationale of the Green holding applies here. The concept of continuing jeopardy implicit in the Ball case
The Georgia courts nonetheless rejected Green as a persuasive authority in favor of reliance on Brantley v. State, 132 Ga. 573, 64 S. E. 676 (1909), aff'd, 217 U.S. 284 (1910). The Brantley case presented a situation where a defendant's appeal from a conviction for a
The Brantley case was decided by this Court at a time when, although the Court was actively developing an explication of federal double jeopardy doctrines based on the Fifth Amendment, it took a very restricted approach in reviewing similar state court decisions. While the Brantley holding may have had some vitality at the time the Georgia courts rendered their decisions in this case, it is no longer a viable authority and must now be deemed to have been overruled by subsequent decisions of this Court.
One further consideration remains. Because the petitioner was convicted of the same crime at both the first and second trials, and because he suffered no greater punishment on the subsequent conviction, Georgia submits that the second jeopardy was harmless error when judged by the criteria of Chapman v. California, 386 U.S. 18 (1967), and Harrington v. California, 395 U.S. 250 (1969).
We must reject this contention. The Double Jeopardy Clause, as we have noted, is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly.
We asked the parties to submit post-argument memoranda directed to the question of whether petitioner can now be re-indicted or retried for voluntary manslaughter under Georgia law. These memoranda have been filed and indicate that the answer to our question appears to depend upon the construction of several Georgia statues and on the power of Georgia courts to fashion remedial orders. Accordingly, although we reverse petitioner's conviction, we also remand the case to enable the Georgia courts to resolve the issues pertaining to petitioner's retrial, if any such retrial is to be had.
Reversed and remanded.
MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case.
Acceptance of either Trono's waiver theory or Mr. Justice Holmes' broad continuing jeopardy approach would indicate that Price could not complain of his retrial for the greater offense. But Trono has not survived unscathed to the present day. The "waiver theory" of four of the majority Justices in Trono was distinguished in Green as resting on "a statutory provision against double jeopardy pertaining to the Philippine Islands—a territory just recently conquered with long-established legal procedures that were alien to the common law." 355 U. S., at 197.
Palko was overruled in Benton v. Maryland, 395 U.S. 784 (1969), where this Court determined that the double jeopardy prohibition of the Fifth Amendment should be applied to the States through the Fourteenth Amendment. Brantley and Palko were of the same genre, and Brantley necessarily shared Palko's fate in Benton.
The last of the decisions of the Georgia courts affirming the petitioner's conviction was rendered on September 24, 1968, well before Benton was decided. But Benton has fully retroactive application, see Waller v. Florida, 397 U.S. 387, 391 n. 2 (1970), and the Georgia courts' reliance on the themes of Brantley, though understandable, now has no place.