Concurring Opinion
White, J.My reason for directing appellant’s acquittal of the charge of selling heroin is that to order a new trial would violate his right not to be put in jeopardy twice for the same offense. Indiana Constitution, Art. I, § 14; United States Constitution, Amendments V and XIV; Sapir v. United States (1955), 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426; Thompson, Reversals for Insufficient Evidence: The Emerging Doctrine of Appellate Acquittal, 8 Ind. L. Rev. 497. Furthermore, statutory law requires that we direct appellant’s discharge. Ind. Ann. Stat. §§ 35-1-47-10 and 35-1-47-13 (Burns Code Ed., 1975). Sudlow v. State (1921), 75 Ind. App. 292, 130 N.E. 429. See, also, Ritchie v. State (1963), 243 Ind. 614, 189 N.E.2d 575, wherein the Indiana Supreme Court held the evidence insufficient to sustain the rape conviction but sufficient to have convicted defendant of the lesser offense of assault and battery with intent to gratify sexual desires. The rape conviction was ordered modified by reducing it to the lesser included offense proven. Here, of course, the trial court has already convicted and sentenced defendant on the lesser offense. One statement in the Ritchie opinion is nevertheless appropriate here:
“It seems to us that justice is best served by avoiding a second trial over facts already found where a fair trial has taken place. If error had occurred therein which prejudiced the accused so that the trial was unfair, the appellant would, of course, be entitled to a new trial.” (243 Ind. at 623.)
*395If appellant had been convicted on sufficient evidence in a trial which was, however, unfair because of some previous procedural error, he would not have been denied an acquittal to which he was constitutionally entitled, but would have been denied a fair trial to which he was constitutionally entitled. Under such circumstances, he would have no right to an appellate (or trial) court directed acquittal, but merely to a fair trial, which is to say a new trial. If he asked for a new trial and convinced either the trial court or an appellate court that he had not had a fair trial, it would be no violation of his right against double jeopardy to try him a second time. His request would be a waiver. If, however, he demands a court directed acquittal but fails to show that the trial evidence of his guilt is insufficient, the request should be denied, even though he may show that trial court errors denied him a fair trial. Whether the trial court or an appellate court can grant a new trial conditioned on an express waiver of double jeopardy, or can infer a waiver from a general request for relief, absent a specific request for a new trial, are questions whose answers must await the appropriate case.
Note. — Reported at 332 N.E.2d 795.