CERTIORARI TO THE SUPREME COURT OF GEORGIA.
Burger, Black, Douglas, Harlan, Brennan, Stewart, White, Marshall; Blackmun took no part in the consideration or decision of this case.
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.
The Court of Appeals of Georgia reversed the conviction because of an erroneous jury instruction and ordered a new trial. Price v. State, 108 Ga. App. 581, 133 S. E. 2d 916 (1963).
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.
Petitioner sought direct review of his second conviction in the Supreme Court of Georgia,*fn1 but that court transferred the case to the Court of Appeals of Georgia, declaring that "only questions as to the application of plain and unambiguous provisions of the Constitution of the United States being involved, . . . the case is one for the consideration of the Court of Appeals . . . ." Price v. State, 224 Ga. 306, 307, 161 S. E. 2d 825, 826 (1968).
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:
"When a person has been indicted for murder and convicted of voluntary manslaughter, if he voluntarily seeks and obtains a new trial, he is subject to another trial generally for the offense charged in the indictment, and upon such trial he cannot successfully interpose a plea of former acquittal of the crime of murder, or former jeopardy in regard thereto." 118 Ga. App., at 208, 163 S. E. 2d, at 244.
Petitioner sought a rehearing, contending, as he contends here, that Brantley was no longer controlling. He relied on Green v. ...