US SUPREME COURT DECISIONS

Petitioner was tried for murder, found guilty of the lesser included offense of voluntary manslaughter, and sentenced to 10 to 15 years' imprisonment. Following reversal of that conviction on appeal, he was retried for murder, despite his double jeopardy claim, again found guilty of voluntary manslaughter, and sentenced to 10 years' imprisonment. The Georgia Court of Appeals affirmed the second conviction, rejecting, on the authority of Brantley v. State, 132 Ga. 573, 64 S.E. 676, aff'd, 217 U. S. 284, petitioner's contention that his retrial for murder constituted double jeopardy. The Georgia Supreme Court denied certiorari.

Held:

1. Though under the continuing jeopardy principle (see Green v. United States, 355 U. S. 184, 355 U. S. 189), petitioner could be retried for voluntary manslaughter, the lesser included offense, he could not, under the Double Jeopardy Clause of the Fifth Amendment as made applicable to the States by the Fourteenth Amendment, be retried and subjected to the hazard of conviction for murder, of which he had been impliedly acquitted when the jury returned a verdict on the lesser included offense but refused to return a guilty verdict on that greater offense. Brantley, supra, is deemed overruled by this Court's subsequent decisions. Pp. 398 U. S. 326-330.

2. In view of the hazard of conviction of murder in the second trial and the possible effect upon the jury of the murder charge, the second jeopardy was not harmless error. Pp. 398 U. S. 331-332.

3. The issue whether petitioner can be retried for voluntary manslaughter under Georgia law is to be resolved on remand. P. 398 U. S. 332.

118 Ga.App. 207, 163 S.E.2d 243, reversed and remanded. chanrobles.com-red

Page 398 U. S. 324