Appellant was previously charged in two counts. (1) Involuntary Manslaughter, and (2) Reckless Homicide. He was convicted on the latter charge— the verdict was silent as to the charge of the first count. Said judgment was appealed to this court, which reversed the judgment with instructions to grant appellant a new trial;
Appellant was again charged with (1) Involuntary Manslaughter, and (2) Reckless Homicide, and the resultant verdict was the same as that which resulted from the first trial.
In this, his second appeal, appellant urges six propositions of law which will be considered in the order in which they are presented in appellant’s brief.
One: Appellant urges that the trial court committed reversible error by permitting the state to prosecute him a second time for either involuntary manslaughter or reckless homicide, for the reason that in the original trial the jury, by failing to make a finding as to the charge of involuntary manslaughter, impliedly had acquitted appellant on that charge, and further, since the factual circumstances involved in the charge for reckless homicide were the same infractions of the law as were involved in the count for involuntary manslaughter, the jury, therefore, having determined that appellant was not guilty of a crime involving *683these alleged acts, could not subject him a second time to a criminal charge involving the same infractions.
Admittedly there is substantial authority that silence as to one count of several counts of an indictment is equivalent to a verdict of not guilty on that count. Smith v. State (1951), 229 Ind. 546, 99 N. E. 2d 417; Ward v. State (1919), 188 Ind. 606, 125 N. E. 397; Beaty v. State (1882), 82 Ind. 228; Harvey v. State (1881), 80 Ind. 142; Bryant v. State (1880), 72 Ind. 400; Bonnell v. State (1878), 64 Ind. 498; Weinzorpflin v. State (1884), 7 Blackf. (Ind.) 186; Ewbanks, Indiana Criminal Law §445, p. 282.
Also, the cases generally make no distinction as to whether the numerous counts are lesser included offenses, greater offenses, or merely different charges concerning the same transaction. In the leading case of Weinzorpflin v. State, supra, the doctrine of silence being equivalent to an acquittal was promulgated with reference to the common law doctrine that a jury could not be dismissed until a verdict was returned. That case, however, distinguishes its facts from a situation where the court could judicially know that the multiple counts were merely different charges of the same offenses.
The distinction drawn in Weinzorpflin v. State, supra, although supported by substantial logic, was not long observed, and the axiom, silence means acquittal, soon came to be applied with no regard as to whether the count on which the verdict was silent was a greater or lesser included offense or a different charge for the same unlawful transaction. See: Beaty v. State, supra. On the other hand, the logic of the principle which states silence is equal to an acquittal is perhaps made inappropriate to charges of these offenses, related to the same unlawful transaction, es*684pecially since this court judicially knows the trial court practice of telling the jury to return a verdict on only one of the charges in view of the limitation on penalty.
Rather than treat the silence of the jury in the involuntary manslaughter count in this case as an acquittal, the better result would seem to be to hold that the reckless homicide verdict encompassed the elements of involuntary manslaughter,1 and that appellant was simply given the lesser penalty.
Two: Under the state prohibition against double jeopardy [Constitution of Indiana Art. 1, §14], as interpreted by the courts, the fact situation here involved does not present a case of double jeopardy. State v. Balsley (1902), 159 Ind. 395, 65 N. E. 185; Patterson v. State (1880), 70 Ind. 341; Veatch v. State (1878), 60 Ind. 291; Mills v. State (1875), 52 Ind. 187; Ex Parte Bradley (1874), 48 Ind. 548; Joy v. State (1886), 14 Ind. 139; Weinzorpflin v. State, supra; Morris v. State (1819), 1 Blackf. (Ind.) 37; accord: State ex rel. Lopez v. Killigrew (1931), 202 Ind. 397,174 N. E. 808.
*685The Balsley case, supra, is substantially similar to the present controversy. In that case, appellee was tried on an indictment of two counts. One charged embezzlement and the other larceny. The jury verdict found appellee guilty of larceny but was silent as to the embezzlement count. Subsequently the larceny conviction was reversed on appeal and a new trial granted. Appellee, charged again with both larceny and embezzlement, filed a plea of abatement as to the embezzlement count claiming former jeopardy. A demurrer to the plea was overruled, but on appeal, this court reversed the overruling of the demurrer with a singularly appropriate discussion of double jeopardy. This court at page 397 stated:
“The rights of the defendant and the State upon a new trial are clearly defined by statute: ‘A new trial is a re-examination of the issues in the same court. The granting of a new trial places the parties in the same position as if no trial had been had; the former verdict cannot be used or referred to, either in the evidence or argument.’ §§1909, 1910, Burns 1901 [now Burns’ Ind. Stat. Anno. §§9-1901, 9-1902 (1956 Repl.)].
“It is entirely clear that when the appellee asked for and obtained a new trial of the issues in his case, the results of the previous trial were wholly vacated. He could not, under the indictment, take a new trial as to the issue upon one count, and not upon the other. If he obtained a new trial, he was bound to take it upon the terms and conditions of the statute, and one of those conditions was that ‘the parties should be placed in the same position as if no trial had been had.’ This point has been decided in many cases in this State, and must be considered as settled.” [Citing cases.]
Three: Appellant finally contends that retrial under both counts of the indictment constituted double jeopardy as prohibited by the Fifth Amendment and the due process clause of the Fourteenth Amendment to the U. S. Constitution.
*686Appellant asserts that, despite the established Indiana law on this issue, a change in Indiana law is compelled by Green v. United States (1957), 355 U. S. 184, 2 L. Ed. 2d 199. However, among other facts which must be considered in relation to this assertion is the fact that the Green case was a federal case and therefore' the rule enunciated arose under the U. S. Supreme Court’s supervisory power over federal courts. The Green case involved a retrial on a murder charge, and resulted in a verdict of guilty of first degree murder, after a prior trial which had resulted in a second degree murder conviction had been reversed on appeal. Applying the Fifth Amendment double jeopardy provision, the Supreme Court held that a conviction of a lesser included offense amounted to an acquittal of the greater offense. Consequently, they reasoned that, on retrial, the accused could be tried for no greater charge than that for which he was originally convicted.
Aside from the obvious fact that the Green case, supra, involved the application of federal law and federal standards, there is the distinction concerning the character of the charges twice in issue. The offenses here involved are statutorily treated more as one offense with different penalties rather than viewing reckless homicide as an included offense in. involuntary manslaughter.
Since the elements of both counts are almost identical, it is recognized that a verdict of guilty of reckless homicide does not logically exclude the possibility of such a verdict on the charge, of involuntary manslaughter for constitutional reasons as would be the case when a conviction is had on a lesser included offense. See Burns’ Ind. Stat. Anno. §47-2002 (1956 Repl.).
*687When dealing with such interconnected offenses it is almost futile to attempt to sort out error and reverse a case only as to those errors which affected the defendant. Recognizing this futility, this state has accepted the position adopted by a substantial number of states, that when a defendant initiates an appeal asking for a new trial and the appeal discloses error, the original trial is treated as a total nullity, leaving the parties as they were prior to the proceeding tainted with error. Burns’ Ind. Stat. Anno. §9-1902 (1956 Repl.). Compare: Green v. United States, supra, 355 U. S. 184, 216 n. 4; 2 L. Ed. 2d 199, 220 n. 4 (dissenting opinion).
The protection against double jeopardy has never specifically been incorporated within the scope of the due process clause of the 14th Amendment, supra, by the Supreme Court.2 Arguable, the double jeopardy provision is not necessarily a hallmark of either system, and it is reasonable to assume that some limitation on the total incorporation of the Fifth Amendment within the due process clause of the 14th Amendment may still exist.
In view of the diverse reasoning by many of the states concerning double jeopardy in situations similar to the instant case, it does not appear that the federal standard of double jeopardy in Green v. United States, supra, can be deemed so fundamental a concept of ordered liberty as to compel a total revision of state interpretations of the doctrine, which interpretations of their own constitutions are primarily the prerogative of the states.
Judgment sustained.
*688Jackson, C. J. and Landis, J. concur in result.
Arterburn and Myers, JJ. concur.
. Reckless Homicide. “Any person who drives a vehicle with reckless disregard for the safety of others and thereby causes the death of another person shall be guilty of the offense of reckless homicide. Any person convicted of reckless homicide shall be punished by a fine of not less than one hundred dollars [$100] or more than one thousand dollars [$1,000], or by imprisonment in the state farm for a determinate period of not less than sixty [60] days and not more than six [6] months, or by both such fine and such imprisonment, or by a fine of not more than one thousand dollars [$1,000] and imprisonment in the state prison for an indeterminate period of not less than one [1] year or more than five [5] years.”
Acts 1963, ch. 282, §1, p. 458 (being Burns’ Ind. Stat. Anno. §47-2001 (a) (1964 Supp.)).
Involuntary Manslaughter. “Whoever . . . kills any human . . . involuntarily in the commission of some unlawful act, is guilty of manslaughter, and on conviction shall be imprisoned not less than two [2] years nor more than twenty-one [21] years.”
Acts 1941, ch. 148, §2, p. 447 (being Burns’ Ind. Stat. Anno. §10-3405 (1956 Repl. )).
. The broad language in Malloy v. Hogan (1964), 878 U.S. 1, 12 L. Ed. 2d 653, indicates a future possibility of such incorporation. See also: Hoag v. State of New Jersey (1958), 356 U. S. 464, 2 L. Ed. 2d 913 [five to three decision by Harlan, J.; Warren, C. J., Douglas and Black JJ. dissent].