Green v. United States, 355 U.S. 184 (1957)

Green v. United States

No. 46

Argued April 25, 1957
Restored to the calendar for reargument June 24, 1957
Reargued October 15, 1957
Decided December 16, 1957
355 U.S. 184

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

Petitioner was indicted and tried in a federal court for first degree murder. The judge instructed the jury that it could find him guilty of either first degree murder or second degree murder. The jury found him guilty of second degree murder, and its verdict was silent on the charge of first degree murder. The trial judge accepted the verdict, entered judgment, dismissed the jury and sentenced petitioner to imprisonment. On appeal, his conviction was reversed and the case was remanded for a new trial. On remand, petitioner was tried again for first degree murder under the original indictment, convicted of first degree murder and sentenced to death, notwithstanding his plea of former jeopardy.

Held: Petitioner’s second trial for first degree murder placed him in jeopardy twice for the same offense in violation of the Fifth Amendment, and the conviction is reversed. Pp. 185-198.

(a) Petitioner’s jeopardy for first degree murder came to an end when the jury was discharged at the conclusion of his first trial, and he could not be retried for that offense. Pp. 190-191.

(b) By making a successful appeal from his improper conviction of second degree murder, petitioner did not waive his constitutional defense of former jeopardy to a second prosecution on the first degree murder charge. Pp. 191-193.

(c) In order to secure the reversal of an erroneous conviction of one offense, a defendant need not surrender his valid defense of former jeopardy on a different offense for which he was not convicted and which was not involved in his appeal. Pp. 193-194.

(d) Trono v. United States, 199 U.S. 521, distinguished. Pp. 194-198.

98 U.S.App.D.C. 413, 236 F.2d 708, reversed.