(concurring) — I concur in the result, but for reasons different from those adopted by the majority. The majority does not make it clear that Kirk's jury was in fact instructed that it could move to consideration of the lesser crime if it were "unable to agree” on first degree rape. This is now the approved instruction in this state, and a "unanimity instruction" no longer is proper. State v. Labanowski, 117 Wn.2d 405, 816 P.2d 26 (1991).
Under this instruction, the jury had unimpeachable authority to convict on the lesser charge without having its deliberations questioned. Defendant did, however, risk a conviction of the greater charge. Having escaped conviction, under these circumstances, any further proceedings on the greater charge clearly would constitute double jeopardy.
The rationale of Green v. United States, 355 U.S. 184, 2 L. Ed. 2d 199, 78 S. Ct. 221 (1957) — quoted on page 792 of the majority herein — is controlling. Being "unable to agree" on the greater charge, the jury moved to the lesser offense and *795returned a conviction on that count. Thus, there was an "implicit acquittal" of the greater charge. See State v. Schoel, 54 Wn.2d 388, 341 P.2d 481 (1959); State v. Murphy, 13 Wash. 229, 43 P. 44 (1895); State v. Robinson, 12 Wash. 349, 41 P. 51 (1895).
Because State v. Jones, 97 Wn.2d 159, 641 P.2d 708 (1982), State v. Boogaard, 90 Wn.2d 733, 585 P.2d 789 (1978), State v. Connors, 59 Wn.2d 879, 371 P.2d 541 (1962) and other cases cited by the majority do not involve lesser included offenses coupled with "unable to agree" instructions, they are not helpful in this case.
In Labanowski, the court takes pains to point out that its divided opinion in State v. Taylor, 109 Wn.2d 438, 745 P.2d 510 (1987) did not stand for the rule that "a jury must be unanimous on a verdict of not guilty of the greater offense before it is allowed to render a verdict on a lesser offense." Labanowski, at 416-17. In Taylor, however, the jury had been given a "unanimity" instruction. The court held that, under these circumstances, it was appropriate to inquire of the jury as to whether it could — with further deliberation — agree on the greater charge, even though it already had returned a verdict of guilt on two lesser included offenses.
Finally, the fact that Kirk's lesser offense conviction has been vacated because the trial court lacked jurisdiction does not diminish either defendant's due process rights, or his right to be free of a second prosecution for first degree rape. Regardless of whose fault may have led to conviction on the erroneous charge, Kirk cannot again be tried for the greater offense. See People v. Morgan, 75 Cal. App. 3d 32, 141 Cal. Rptr. 863 (1977); People v. Brice, 206 Cal. App. 3d 111, 253 Cal. Rptr. 370 (1988), review denied (Feb. 23, 1989). By challenging the validity of his conviction, a defendant does not lay himself open to another prosecution for the crime of which he has been "implicitly" acquitted. The trial court's order arresting judgment on the lesser charge should have been granted unconditionally.
Review denied at 119 Wn.2d 1025 (1992).
Judge Edward P. Reed is serving as a judge pro tempore of the Court of Appeals pursuant to CAR 21(c).