(dissenting).
I must respectfully dissent from the holding by the majority that the defendant was not twice placed in jeopardy in violation of the Federal and State Constitutions.
The jury in the first trial for first degree murder, it must be assumed, followed the instructions by the trial judge to first inquire during their deliberations if the defendant was guilty of murder in the first degree as explained to them, and that if they had a reasonable doubt as to his guilt or innocence of that crime they must acquit him and next proceed to a determination as to his guilt or innocence of murder in the second degree, etc.
From the bill of exceptions preserved showing the conclusions reached, or not *552reached, by the former jury the following occurred when the jury announced that they were deadlocked after receiving instructions again on the difference between voluntary and involuntary manslaughter:
“MR. HAILE: Your Honor, before the Jury is dismissed, I move Your Honor to poll the jury.
THE COURT: I have no objection.
GEN. BELLAR: We don’t object.
THE COURT: When Mrs. Dillehay calls the roll — for example, I am the first Juror she calls, I would say, ‘Not Guilty.’ General Knowles would be the second and he would say, ‘Guilty of involuntary manslaughter or voluntary manslaughter or whatever it is, do you understand. When your name is called just say not guilty of anything or guilty of one of the two.
THE CLERK: Mrs. Oakley.
THE JUROR: Involuntary Manslaughter.
THE CLERK: Mrs. West.
THE JUROR: Guilty of Involuntary Manslaughter.
THE CLERK: Glenn Anderson.
THE JUROR: Accidental.
THE CLERK: Roger Kemp.
THE JUROR: Not guilty.
THE CLERK: Rex Shoulders.
THE JUROR: Not guilty.
THE CLERK: Don Langford.
THE JUROR: Guilty.
THE CLERK: Jack Dillehay.
THE JUROR: Accidental.
THE CLERK: Cordell McDonald.
THE JUROR: Involuntary Manslaughter.
THE CLERK: Mr. Goad.
THE JUROR: Involuntary Manslaughter.
THE CLERK: Muddy Mason.
THE JUROR: Involuntary Manslaughter.
THE CLERK: L. B. Martin.
THE JUROR: Involuntary Manslaughter.
THE CLERK: Ross Wilmore.
THE JUROR: Accidental.
Thereupon, the Jury was discharged. Court was adjourned.”
From the emphasized language of the trial judge it is clear that he instructed the jury to report their individual verdicts on the guilt or innocence of the defendant “of one of the two” manslaughter charges that they had inquired about shortly before. If Juror Langford followed the instruction of the court, and we must presume that he did, this means that his verdict of guilt related to manslaughter, not murder.
The above is not a mere exercise in mental gymnastics, but is the inescapable conclusion that must be reached on the plain facts. Therefore it is clear to me that the defendant was formerly acquitted of murder, and to force him to run the gauntlet again and defend himself on the same charge constituted double jeopardy.
In essence the jury said: “We find the defendant not guilty of murder in the first and second degree and are unable to agree on manslaughter.” If these words had been literally used, would there be any doubt as to the defendant’s acquittal of murder? Frankly, I think it would be good practice for the court to make specific inquiry in cases involving lesser included offenses when it appears the jury is unable to reach overall agreement to ascertain if they have unanimously reached a verdict on any of the offenses. If a jury of his *553peers has reached a verdict of not guilty, this should acquit, and it is my position that a judgment of acquittal should have been entered by way of correction of the former judgment of mistrial.
Suppose, arguendo, the defendant had been tried on consolidated charges of murder and larceny from the victim and the jury had acquitted him of murder but had been hopelessly deadlocked on larceny. Would anyone suggest that the State should again be given an opportunity to convict him of murder? If there is any difference in the actual and hypothetical situations, it is surely difference without distinction. Constitutional safeguards should not be so grudgingly protected or so reluctantly granted.
I would reverse and remand for a new trial limited to manslaughter.