(concurring) :
I concur in the result, but on more limited grounds than those expressed by the majority.
The heart of the Double Jeopardy Clause, which is applicable to state criminal proceedings, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L. Ed.2d 707 (1969),1 lies in its prohibition against reprosecution of a defendant, on the same facts, for the same offense. Under settled New York law, the language of the indictment in this case2 was sufficient to support convictions for premeditated murder, N.Y.Penal Law § 1044(1), and for felony murder, N.Y. Penal Law § 1044(2). People v. Lytton, 257 N.Y. 310, 315, 178 N.E. 290 (1931); People v. Osmond, 138 N.Y. 80, 84, 33 N.E. 739 (1893). At the time when the jury at Jackson’s first trial was sworn, he was placed in jeopardy for, and was necessarily required to defend against, both forms of first degree murder under the New York statute. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Newman v. United States, 133 U.S.App.D.C. 271, 410 F.2d 259, 260, cert. denied, 396 U.S. 868, 90 S.Ct. 132, 24 L.Ed.2d 121 (1969). There can be no doubt, therefore, that Jackson was twice tried by the State of New York for the crime of felony murder, N.Y.Penal Law § 1044(2), based on the same evidence.
The question to be resolved is whether Jackson’s successful collateral attack of his conviction for premeditated murder, which unquestionably allowed the State to retry him on that charge under a judicially-created exception to the Double Jeopardy Clause, United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Forman v. United States, 361 U.S. 416, 425, 80 S.Ct. 481, 486, 4 L.Ed.2d 412 (1960); North Caro*1051lina v. Pearce, 395 U.S. 711, 719-720, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), also allowed it to retry him on the felony murder charge.3 I believe that under the unusual circumstances of this case it did.
Normally the retrial of a defendant who has successfully appealed his conviction is allowed only “for that same offense [which] has been set aside by” the defendant’s appeal. Forman v. United States, 361 U.S. 416, 425, 80 S.Ct. 481, 486, 4 L.Ed.2d 412.4 For example, a defendant who has been indicted for first degree murder but found guilty of a lesser included offense, such as second degree murder or voluntary manslaughter, may be retried after a successful attack upon his conviction only on the lesser included offense of which he was found guilty. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L. Ed.2d 199 (1957); Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).
As the majority opinion recognizes, there is support for the theory that premeditated murder and felony murder are two separate and distinct offenses under New York law. The elements of each differ, and a jury at the time of Jackson’s trials was permitted to recommend life imprisonment for a defendant convicted of felony murder, N.Y.Penal Law § 1045-a, but not in the case of a person convicted of premeditated murder. The two-offense theory is further supported by decisions upholding verdicts of felony murder and second-degree murder (a lesser included form of premeditated murder) on the same set of facts, People v. Leonti, 18 N.Y.2d 384, 392, 275 N.Y.S.2d 825, 832, 222 N.E.2d 591 (1966); cf. People v. Weisser, 36 A.D.2d 54, 319 N.Y.S.2d 131, 134 (4th Dept. 1971), and by People v. Bloeth, 16 N.Y.2d 505, 260 N.Y.S.2d 446, 208 N.E. 2d 177 (1965), where the defendant had been convicted of premeditated murder but acquitted of felony murder. His conviction was eventually reversed by this Court en banc. United States ex rel. Bloeth v. Denno, 313 F.2d 364 (2d Cir.), cert. denied, 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143 (1963). On retrial, Bloeth was convicted of premeditated murder and felony murder. The Court of Appeals then reversed the felony murder conviction in a memorandum decision, ostensibly on the ground that the acquittal of felony murder at the first trial barred reprosecution for that offense despite the successful appeal of the premeditated murder conviction. See also People v. Howard, 27 A.D.2d 796, 279 N.Y.S.2d 79, 80 (4th Dept. 1967).
On the other hand, there is also respectable New York authority for the proposition that at the time of the acts here charged premeditated murder and felony murder were but different forms of the same crime, first degree murder as defined in N.Y.Penal Law § 1044. This was analyzed by Chief Judge Cardozo with his usual precision in People v. Lytton, 257 N.Y. 310, 314-315, 178 N.E. 290, 292 (1931), as follows:
“Homicide, we said, is not murder ‘without evidence of malice and of felonious intent and a depraved mind’ People v. Nichols, supra, 230 N.Y. [221] at page 226, 129 N.E. 883, 884. The malice or the state of mind may be proved by showing that the act was done with a deliberate and premeditated design to kill. The case will then fall under subdivision 1 (§ 1044). It may be proved by showing that the act was done by one then and there engaged in the commission of another felony. People v. Enoch, 13 Wend. *1052159, 174, 27 Am.Dec. 197; People v. Nichols, supra. The case will then fall under subdivision 2. In the one case as in the other a single crime is charged, the independent felony like the deliberate and premeditated intent being established solely for the purpose of characterizing the degree of the crime so charged, the evil mind or purpose inherent in the killing. People v. Enoch, supra. If there could be any doubt about this, the form of the indictment would be sufficient to dispel it. The rule is settled that there is no need to charge in an indictment that the homicide was wrought in the commission of another felony. It suffices to state in the common-law form that the defendant acted ‘willfully, feloniously, and with malice aforethought.’ People v. Nichols, supra; People v. Giblin, 115 N.Y. 196, 198, 21 N.E. 1062, 4 L.R.A. 757; People v. Osmond, 138 N.Y. 80, 33 N.E. 739. This would never do if the independent felony were conceived of as changing the identity of the crime instead of merely characterizing the degree of culpability to be imputed to the killer.”
Turning to the present case the indictment does not charge Jackson in separate counts with (1) premeditated murder and (2) felony murder. It alleges simply in one count that Jackson “wilfully, feloniously and of malice aforethought shot William J. Ramos, Jr. with a revolver, and thereby inflicted divers wounds upon William J. Ramos, Jr. . and thereafter and on or about June 14, 1960, said William J. Ramos, Jr. . . . died of said wounds”. The judge who presided at Jackson’s trial, taking the view that premeditated murder and felony murder were but two equal forms of the same crime, instructed the jury that it could convict Jackson of one or the other, but not both. The jury found Jackson guilty of premeditated murder and, in accordance with the court’s instructions, made no finding on the issue of whether he was also guilty of felony murder. To say that the jury considered the latter issue, much less that it acquitted Jackson of felony murder, would be pure speculation.
Unlike the situation in other cases holding that the Double Jeopardy Clause barred retrial of a count which had not been the subject of an expressed jury verdict, e. g., Green v. United States, supra, the failure of the jury in this case to render a verdict on the charge of felony murder cannot be equated with an implied acquittal of that charge. Nor can it be attributed to circumstances beyond the control of Jackson or his counsel, a lawyer with extensive experience in criminal trial practice. On the contrary, the record reveals that his counsel was content to have the case go to the jury on the basis formulated by the court.
As far as Jackson’s counsel was concerned a verdict finding Jackson guilty of either premeditated or felony murder would have been fatal to his client, since conviction of either charge, which involved the killing of a New York City policeman, would probably have resulted in a death sentence.5 The record reveals that he therefore kept away from any suggestion that there should be two verdicts, as has been done in some cases, see People v. Leonti, supra; People v. Bloeth, supra. His entire strategy was to persuade the jury that it should find Jackson guilty of a lesser degree of homicide, one which would call for imprisonment rather than for the death penalty. In accordance with this strategy, although he had ample opportunity to demand a disposition of the felony murder charge, whether or not it be considered the same offense as premeditated murder, he did not take any exception to the *1053court’s instruction, nor did he make any request for two verdicts.
In my view Jackson’s strategy at the first trial amounted to a consent to the procedure followed by the trial judge, which precluded him from invoking the Double Jeopardy Clause upon a retrial after conviction for premeditated murder. His consent was essentially the same as that given upon the declaration of a mistrial or the discharge of a jury prior to verdict, both of which represent exceptions to the application of the constitutional guarantee against double jeopardy. United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); United States v. Pappas, 445 F.2d 1194, 1200 (3d Cir.), cert. denied sub nom. Mischlich v. United States, 404 U.S. 984, 92 S.Ct. 449, 30 L.Ed.2d 368 (1971); Gregory v. United States, 133 U.S.App.D.C. 317, 410 F.2d 1016, 1018 n. 2 (D.C.Cir.), cert. denied, 396 U.S. 865, 90 S.Ct. 143, 24 L.Ed.2d 119 (1969); Vaccaro v. United States, 360 F.2d 606, 608 (5th Cir. 1966); United States v. Burrell, 324 F.2d 115, 119 (7th Cir.), cert. denied, 376 U.S. 937, 84 S.Ct. 791, 11 L.Ed.2d 657 (1963); Raslich v. Bannan, 273 F.2d 420 (6th Cir. 1959).
. Benton v. Maryland has been held to have full retroactive effect. See Ashe v. Swenson, 397 U.S. 436, 437 n. 1, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
. The indictment read as follows:
“The Grand Jury of the County of Kings, by this indictment, accuse the defendant of the crime of MURDER IN THE FIRST DEGREE, committed as follows:
“The defendants, acting in concert and each aiding and abetting the other, ou or about June 14, 1960, in the County of Kings, wilfully, feloniously and of malice aforethought, shot William J. Ramos, Jr., also known as William Ramos, Jr., with a revolver, and thereby inflicted divers wounds upon William J. Ramos, Jr., also known as William Ramos, Jr., and thereafter and on or about June 14, 1960, said William J. Ramos, Jr., also known as William Ramos, Jr., died of said wounds.”
. The Ball doctrine applies whether the conviction is voided by direct appeal or by collateral attack. United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964).
. It was long ago decided that “freedom would be a disproportionate reward for a trial error,” United States v. Coke, 404 F.2d 836, 839 (2d Cir. 1968) (en banc), and that therefore reprosecution after an appellate reversal based on such error was justified. See United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).
. Indeed, Jackson was sentenced to death, a sentence that was later commuted to life imprisonment by Governor Rockefeller. Since the jury, if it had found him guilty of felony murder, could have recommended life imprisonment, N.Y. Penal Law § 1045-a, the conviction of premeditated murder could hardly be classified as one for a lesser degree of homicide.