(dissenting).
I respectfully dissent. I believe that the double jeopardy provision of the Fifth Amendment and the due process clause of the Fourteenth Amendment barred South Dakota from prosecuting Percy for kidnapping.
It has long been the rule that a defendant, who obtains a reversal of a prior, unsatisfied conviction, can be retried in the normal course of events for the same offense. United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). A defendant can ordinarily also be retried on a closely related but lesser charge for the same offense. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1965). But in my view, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1957); and Green v. United States, 355 *1238U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), bar a second prosecution on a greater charge growing out of a single criminal act or occurrence. I recognize that this view is contrary to that expressed in Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959), and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), but I believe those cases to be of doubtful validity in the light of Ashe.
To reach this result, one must assume that at least two Justices will join in the concurring views of Justices Brennan, Douglas and Marshall in Ashe. I believe this assumption to be valid under the circumstances of this case. Here, there was but one victim of the defendant’s conduct. The prosecution was aware, before the first trial, of all material facts presented in either trial. It tried both cases on the same theory, i. e., that the defendant had sexually assaulted a young boy, and it presented substantially the same evidence in both trials. Finally, in both trials, the court instructed the jury and sentenced the defendant on the basis that a sexual assault was the gravamen of each offense. No valid reason has been demonstrated why the prosecution should not have been required to join, in the initial proceeding, all charges growing out of his single criminal act which it intended to bring against this defendant. Having failed to do so, the State is barred from trying him a second time for another and a greater offense.
It is, of course, clear that the defendant could have been retried on the child-molestation charge without offense to the Fifth Amendment. But to permit him to be retried for another, greater offense growing out of the same criminal act would encourage vexatious multiple prosecutions and discourage legitimate appeals.
I must also dissent from the majority’s holding that North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), is inapplicable here. The sentence imposed after the second trial was harsher on two scores: no credit was given for time served under the first sentence, and the sentence was for life rather than forty years. Furthermore, no justification was shown for the imposition of the harsher sentence. It seems clear that the State of South Dakota is punishing the defendant for having exercised his post conviction right of review.
For the reasons stated earlier in this dissent, I feel no reluctance to extend Pearce to situations where a defendant is retried for another offense arising out of the same transaction, particularly where the circumstances are similar to those here. The underlying rationale of Pearce is that due process requires that a defendant be freed of apprehension of incurring a heavier sentence if he successfully appeals a conviction. This fear cannot be relieved if the ban against heavier sentences can be avoided by prosecution for another offense arising out of the same transaction the second time around.
One further point is necessary to this dissent. The defendant was held for approximately three years before receiving the life sentence. He was given no psychiatric treatment during this period even though his record indicated the necessity for such treatment, and South Dakota law appears to have required it after the first sentence. See, S.D.C. 1960 Supp. § 13.1727.1
*1239Prior to the second trial, a court-appointed psychiatrist filed a lengthy report with the court. This report summarized the defendant’s sexual problems and offenses and recommended:
“ * * * There is no doubt in my mind that the subject is ill in terms of his psychological make-up, that he is psychiatrically the victim of a lifelong pattern best called a neurotic character, expressing itself mostly in fixation at the infantile level of psycho-sexual development; immaturity, impulsivity, poor judgment, poor social adjustment. His life shows the usual pattern of a difficult child, overcomes drink.
“Generally speaking, he is able to differentiate between right and wrong and thus there is no question in insanity in the legal sense. He is able to stand trial and to understand the proceedings as well as sentencing.
“Still, recent developments in the field of legal psychiatry are pointing in the direction of professional care for individuals such as the present subject. It would seem to be desirable that this man whose behavior has been pathological in nature be placed in a situation where he could get appropriate treatment for his condition. Unfortunately, our state does not have such facilities for treatment and rehabilitation at the penitentiary. I would like to suggest that in any event the possibility of having this man sent to the State Hospital in Yankton for long-term treatment, including psychotherapy in its various forms and rehabilitation measures in all their diversities be used to give this man a chance of being well adjusted citizen. Possibly, this does not sound like a very practical recommendation; lack of staff at State Hospital, overcrowded and other such factors may preclude the patient ever receiving the treatment that would lead to his improvement and eventual recovery. Still, I feel it is my duty to point out that this man is basically ill and that if he is under consideration for punishment he should also be under consideration for treatment and rehabilitation.”
These recommendations were ignored when the second sentence was imposed.
It is possible that Steven Lux, his parents and the defendant might have been spared this ordeal had one of the many courts, with whom the defendant came in contact before this incident, made arrangements for appropriate medical treatment. But they failed to do so, and society is the loser.
It is my view that the sentence in this case is not only violative of South Dakota law but also approaches the boundary of the constitutional protections afforded by the Eighth Amendment. Thus, the present sentence should be vacated and this matter remanded to the State of South Dakota with instructions to it to provide proper treatment for the defendant. Unless we are prepared to take such action, our society will continue to pay a heavy price for its failure to give proper treatment where needed. See, Model Penal Code Sentencing Provisions, § 6.13, American Law Institute, Model Penal Code (P.O.D.1962); Approved Draft, 1968, Sentencing Alternatives and Procedures, §§ 2.5, 2.6.
. “13.1727 Indecent molestation of minor; felony; penalty; mental treatment.
* * *
* * * * *
“It shall be the duty of the trial judge immediately after passing sentence, to order such person to be mentally examined at the South Dakota State Hospi-
tal to ascertain if mental treatment is necessary during such period of confinement. * * * If, after such examination, the Superintendent of the South Dakota State Hospital finds such person to be mentally ill, and amenable, from the standpoint of his reasonably safe incarceration, to hospitalization, he shall
*1239be hospitalized at the South Dakota State Hospital for so long as the Superintendent deems such treatment to be of
medical value to such prisoner. * * * ” S.D.C.1960 Supp.