dissenting.
If this were a federal case, it would, in my view, be covered by Green v. United States, 355 U. S. 184 (1957). In Green, the defendant was not acquitted of the first degree murder charge at the first trial. Just as in the *81present case, the jury did not return a verdict on that count, but convicted Green on the lesser charges of arson and second degree murder. But this Court held that Green could not be retried on the first degree murder charge. It clearly and unmistakably held that whether Green was “acquitted” of the greater offense was of no consequence. He had been exposed to jeopardy. See 355 U. S., at 188, 190-191. So, in the present case, it is of no consequence whether the silence of the jury on the involuntary manslaughter count amounted to acquittal. Petitioner was put in jeopardy on that count and cannot again be tried on that charge.
The only, difference between Green and the present case — except as to the jurisdictions — is that in Green, on the second trial, the defendant was convicted on the aggravated count. In the present case, petitioner was again convicted on the less serious charge. I cannot see that this can justify a difference in result. Petitioner should not have been retried on an affidavit including the more serious charge, which was not involved in the appeal. That charge was dead — beyond resuscitation. Its wrongful inclusion in the affidavit was materially harmful to petitioner. First, it exposed him to the hazards of prosecution and conviction for the more onerous offense. Second, it again gave the prosecution the advantage of offering the jury a choice — a situation which is apt to induce a doubtful jury to find the defendant guilty of the less serious offense rather than to continue the debate as to his innocence. See United States ex rel. Hetenyi v. Wilkins, 348 F. 2d 844 (C. A. 2d Cir. 1965), cert. denied, 383 U. S. 913 (1966). And beyond the question of injury to the petitioner in this particular case is the fact that the procedure which Indiana used chills the right of appeal. It “has the necessary effect of unlawfully burdening and penalizing the exercise of the right to seek review of a criminal conviction.” United States *82v. Ewell, 383 U. S. 116, 130 (1966) (dissenting opinion). Defendants in Indiana in this type of case are admonished that if they appeal from a conviction on the less onerous charge they do so at the peril that on the next trial they may be tried, and possibly convicted, on the more serious count.
This is a state case. But the Fourteenth Amendment’s requirement of due process, in my view, certainly and clearly includes a prohibition of this kind of heads-you-lose, tails-you-lose trial and appellate process. See the dissent of Mr. Justice Black in Bartkus v. Illinois, 359 U. S. 121, 150 (1959); Brock v. North Carolina, 344 U. S. 424, 429, 440 (1953) (dissenting opinions of Vinson, C. J., and Douglas, J.).
The Second Circuit’s views are in accordance with the position stated herein. See United States ex rel. Hetenyi v. Wilkins, supra.
I would reverse and remand.