dissent.
Barnes, J., filed the following dissenting opinion.
I dissent in this case because in my opinion the majority of the Court has made an unwarranted and untimely departure from the legal principle enunciated by the Court in Hobbs v. State, 231 Md. 533, 191 A. 2d 238 (1963), cert. den., 375 U. S. 914, 84 S. Ct. 212, 11 L. Ed. 2d 153 (1963).
In Hobbs, the federal courts had held that because the defen*629dant in that criminal case, who had pleaded guilty to three charges of armed robbery with a deadly weapon, was not represented by counsel in the original trial, that trial was a nullity as denying the defendant due process of law under the Fourteenth Amendment and gave the State seven days to elect to retry the case. See Hobbs v. Pepersack, 301 F. 2d 875 (4th Cir. 1962) and Hobbs v. Pepersack, 206 F. Supp. 301 (D. Md. 1962). The State elected to have a new trial, the defendant this time pleaded not guilty to the three indictments for armed robbery, was found guilty by the jury on tm* of the three indictments and the trial court sentenced the defendant to 20 years in one case and to 5 years in the other case, the sentences to run consecutively from the date of the original sentences, thus sentencing the defendant to 5 more years imprisonment than he had received at the end of the first trial. In affirming the trial court, Judge Marbury aptly stated for the Court in a unanimous decision:
“On a trial de novo the court hears the case as if it were being tried for the first time, and considers the entire matters of verdict, judgment and sentence as if there had been no prior trial. * * *
“In asking for and receiving a new trial, appellant must accept the hazards as well as the benefits resulting therefrom.” (Pages 535 and 536 of 231 Md.; pages 239and240of 191 A. 2d).
Although Hobbs applied this legal principle only to the increased sentence imposed at the end of the new trial (the only question before the Court), that principle has been applied by many state appellate courts and by the Supreme Court of the United States for over fifty years as resulting in an absolute waiver by the defendant of double jeopardy protection for an acquittal for a greater offense, when, on the defendant’s appeal, a reversal was obtained of the conviction of a lesser offense. The verdict in the first trial was considered an indivisible entity and in taking an appeal the defendant cannot stand on part of the verdict and judgment and repudiate the rest of the verdict and judgment. United States v. Frank, 8 Alaska 436 (1933). (This case might not be valid authority in Alaska today as it was de*630cided in reliance on Trono v. United States, 199 U. S. 521 (1905) which was in effect overruled by Green v. United States, 355 U. S. 184 (1957)); State v. Thomas, 88 Ariz. 269, 356 P. 2d 20 (1960); Young v. People, 54 Colo. 293, 130 Pac. 1011 (1913) ; Perdue v. State, 134 Ga. 300, 67 S. E. 810 (1910); State ex rel. Lopez v. Killigrew, 202 Ind. 397, 174 N. E. 808 (1931); State v. Morrison, 67 Kan. 144, 72 Pac. 554 (1903) ; Hoskins v. Commonwealth, 152 Ky. 805, 154 S. W. 919 (1913); Jones v. State, 144 Miss. 52, 109 So. 265 (1926); State v. Stallings, 334 Mo. 1, 64 S. W. 2d 643 (1933) ; State v. Hutter, 145 Neb. 798, 18 N. W. 2d 203 (1945) ; Gibson v. Somers, 31 Nev. 531, 103 Pac. 1073 (1909); People v. McGrath, 202 N. Y. 445, 96 N. E. 92 (1911) ; State v. Robinson, 100 Ohio App. 466, 137 N. E. 2d 141 (1956); Hamit v. State, 42 Okla. Crim. 168, 275 Pac. 361 (1929) ; State v. Gillis, 73 S. C. 318, 53 S. E. 487 (1906) ; State v. Kessler, 15 Utah 142, 49 Pac. 293 (1897) ; State v. Bradley, 67 Vt. 465, 32 Atl. 238 (1895).
This was the rule in the federal courts from 1905 when the case of Trono v. United States, 199 U. S. 521, 26 S. Ct. 121, 50 L. Ed. 292, was decided until 1957 when Green v. United States, 355 U. S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199 was decided by a five to four decision (Frankfurter, Burton, Clark and Harlan, JJ. dissenting) in which a different rule was adopted by the Supreme Court.1
*631There are a number of appellate courts which agree with the decision of the majority. See Green v. United States, supra; Brewington v. State, 19 Ala. App. 409, 97 So. 763 (1923) ; Hearn v. State, 212 Ark. 360, 205 S. W. 2d 477 (1947); Gomez v. Superior Court, 50 Cal. 2d 640, 328 P. 2d 976 (1958); State v. Naylor, 28 Del. 99, 90 Atl. 880 (1913); West v. State, 55 Fla. 200, 46 So. 93 (1908); People v. Carrico, 310 Ill. 543, 142 N. E. 164 (1923) ; State v. Smith, 132 Iowa 645, 109 N. W. 115 (1906); State v. Elmore, 179 La. 1057, 155 So. 896 (1934); People v. Farrell, 146 Mich. 264, 109 N. W. 440 (1906) ; State v. Williams, 30 N. J. 105, 152 A. 2d 9 (1959) ; State v. White, 61 N. M. 109, 295 P. 2d 1019 (1956) ; State v. Birckhead, 256 N. C. 494, 124 S. E. 2d 838 (1962); State v. Steeves, 29 Ore. 85, 43 Pac. 947 (1896); Commonwealth v. Maroney, 417 Pa. 368, 207 A. 2d 814 (1965); Reagan v. State, 155 Tenn. 397, 293 S. W. 755 (1927) ; Bateman v. Commonwealth, 183 Va. 253, 32 S. E. 2d 134 (1944); State v. School, 54 Wash. 2d 388, 341 P. 2d 481 (1959); State v. Vineyard, 85 W. Va. 293, 101 S. E. 440 (1919); Montgomery v. State, 136 Wis. 119, 116 N. W. 876 (1908).
The appellate authorities in the States are almost evenly divided, although the State trend since Green has been toward the views of the majority.
It may be pointed out that even among those States which generally held that the defense of double jeopardy was available, California, prior to 1958, declined to permit the defense where the acquittal below was in regard to a higher degree of the crime for which a reversal of conviction of a lesser degree of that crime is obtained on appeal. See People v. Keefer, 65 *632Cal. 232, 3 Pac. 818 (1884, S. Ct. of Cal.); People v. Superior Court, 202 Cal. 165, 259 Pac. 943 (1923, S. Ct. of Cal.) ; People v. McNeer, 14 Cal. App. 2d 22, 57 P. 2d 1018 (1936, Dist. Ct. of Ap. 2nd Dist.).
The same rule was applied in California prior to 1958 to burglary in the first and second degrees. Ex Parte Moore, 29 Cal. App. 2d 56, 84 P. 2d 57 (1938, D. Ct. of Ap. 3rd Dist.) ; and to grand theft and petty theft. Gomez v. Superior Court, 158 Cal. App. 2d 297, 322 P. 2d 292 (1958, D. Ct. of Ap. 3rd Dist.).
In People v. Keefer, supra, a similar situation to that involved in the case at bar was presented to the Supreme Court of California. The defendant was convicted of murder in the second degree at his first trial. Upon his motion, a new trial was awarded. The trial court instructed the jury at the second trial that the defendant having been found guilty of murder in the second degree, could not be convicted of murder in the first degree in the second trial. The jury found the defendant guilty of murder in the second degree at the second trial. This conviction was reversed on appeal, and the case remanded for a new trial. The trial court was instructed by the Supreme Court of California that the defendant could be tried at the new trial for murder in the first degree. The Supreme Court of California pointed out that the establishment of degrees of murder by the legislature did not create a new crime or different crimes of murder, but that the degree of the crime of murder is addressed to the quantum of punishment involved rather than to a separate and distinct crime. The Court stated:
“In dividing the crime of murder into two degrees the legislature recognized the fact that some murders, comprehended within the same general definition, are of a less cruel and aggravated character than others, and deserving of less punishment. It did not attempt to define the crime of murder anew, but only to draw certain lines of distinction by reference to which the jury might determine, in a particular case, whether the crime deserved the extreme penalty of the law or a less severe punishment.” (Page 235 of 65 Cal.; page 820 of 3 Pac.).
*633This distinction in the California cases prior to 1958 is apparently no longer followed in California as a result of the decision of the Supreme Court of California, by a divided court, in Gomez v. Superior Court, 50 Cal. 2d 640, 328 P. 2d 976 (1958), supra, which followed the decision of the Supreme Court of the United States in Greenl and reversed Gomez v. Superior Court, 158 Cal. App. 2d 297, 322 P. 2d 292, supra.
Our predecessors held in 1855 that the Act of 1809, Chapter 138, Section 3 providing for murder in the first degree and murder in the second degree (see Code (1957) Art. 27, §§407 and 411) did not create a new offense. The purpose of the statute was “to discriminate in awarding the punishment.” Weighorst v. State, 7 Md. 442, 451 (1855). See also Davis v. State, 39 Md. 355, 375 (1874) and Webb v. State, 201 Md. 158, 93 A. 2d 80, 81 (1952). Maryland is, therefore, committed to the same doctrine as that applied by the Supreme Court of California prior to 1958 and, quite apart from what may be thought to- be the proper rule for double jeopardy in regard to different crimes, in my opinion there should be no fragmentation of the single crime of murder, even though it has two degrees for purposes of punishment.
The relevant cases in 1957 are collected in the dissenting opinion of Mr. Justice Frankfurter in Green v. United States, supra (see pages 216-218 of 355 U. S.) and also in the Annotation following the report of that case in the American Raw Reports entitled “Conviction of lesser offense as bar to prosecution for greater on new trial,” 61 A.L.R.2d 1141. See also “Defendant’s Waiver of Double Jeopardy by Appealing Conviction for a Lesser Included Offense,” 66 Yale Law Review 592 (1957) and the note in 3 Arizona Law Review 287 (1961), reviewing State v. Thomas, 88 Ariz. 269, 356 P. 2d 20 (1960), supra.
Also of interest is the observation in the dissenting opinion in Rowe v. State, 234 Md. 295, 199 A. 2d 785 (1964), cert. den., 379 U. S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 336 (1964), that the majority of the Court in that case had, in effect, denied Rowe, who was found by the jury to be insane at the time of trial but who was also found not guilty of murder in the first degree, but guilty of murder in the second degree, of his possible defense of “double jeopardy”. Judge Henderson, for the minority, stated in his dissenting opinion:
*634“If, as the opinion states, ‘for reasons best known to himself, the defendant seems to fear the risk of a new trial,’ we should not compel him to assume that risk. Surely, the fear is not irrational or unreasonable. If and when he is brought to trial again, he might well be convicted of murder in the first degree and sentenced to death. If, as the majority holds, the verdict and sentence are nullities, it would appear that a claim of double jeopardy would be fruitless. (We shall revert to this later.) In a second trial years later witnesses vital to the defense might conceivably be dead or unavailable. It is our view that he is entitled to stand upon that verdict and sentence, and that this Court should not deprive him of it, sua sponte.” (Page 311 of 234 Md.; page 794 of 199 A. 2d).
Later in the dissenting opinion, he stated:
“Here, the error upon which the majority rests its reversal of the judgment and its order which in effect restores the status quo as if there had been no trial cannot be classified as a ‘technical’ error not affecting ‘the substantial rights of the parties.’ No more can it be said that the Court gives judgment ‘without regard to’ that error, whatever its nature. The judgment of reversal is founded on that (unassigned) error, however it may be classified. That it affects substantial rights of at least one of the parties, the appellant, could scarcely be seriously disputed, for the protection against the death penalty (or the permissible alternative of life imprisonment) which the jury’s verdict of not guilty of murder in the first degree, but guilty of murder in the second degree, gave him, is taken away. In short, a substantial right—quite literally a vital right —is put in jeopardy not by disregarding, but by seizing upon, an error.” (Page 315 of 234 Md.; page 796 of 199 A. 2d).
“[F'jrom the majority’s view of the nullity of the jury’s verdict of not guilty of murder in the first degree, but guilty of murder in the second degree, it *635seems to follow, as already suggested, that a plea of double jeopardy would be unavailing, even as to murder in the first degree. This is, however, a matter of inference, rather than of direct statement, and the question is a serious one. It has not previously been passed on by this Court, and in comparable situations there is a sharp division of opinion in other jurisdictions. See Green v. United States, 355 U. S. 184 (1957) and the catalogue of holdings in other states in Mr. Justice Frankfurter’s dissenting opinion (pp. 216-218). Since Green, the majority (then 19-17 of the 36 states which had considered the question) has now shifted so as to bar conviction for the major offense charged where the first trial resulted in a verdict of guilty on a lesser offense comprehended in the indictment.” (Page 316 of 234 Md.; page 797 of 199 A. 2d).
It seems clear, by inference at least, that the majority of the Court as late as April 7, 1964 was prepared to follow the legal principle enunciated in Hobbs.
In my opinion, the legal principle set forth in Hobbs is sound, should control the case at bar and should deny to the defendant any defense of double jeopardy to prosecution at the new trial for murder in the first degree.
In the first place, the determination by the Court that the jury was erroneously instructed by the trial court and a new trial must be had, means that the verdict of the jury in the entire case, and the resulting judgment, were erroneous and invalid. The jury’s verdict was not partly valid and partly invalid. It was all invalid. The judgment was not valid in part and invalid in part. The new trial was awarded upon the whole case, not upon a part of the case. The case is not to be fragmented, with part valid and part invalid. Still less, as has already been stated, is a single crime to be fragmented by degrees of guilt. The reason for the defense of double jeopardy at common law and in the constitutional and statutory provisions incorporating the common law concept was to prevent the citizen from vexatious criminal prosecutions by the institution by prosecutors of additional prosecutions for the crime for which *636the accused had been formerly acquitted or convicted. It was not designed to defeat the principal purpose of the criminal law, which apart from its reformatory effect, is designed to protect society and to prevent crime. When the accused challenges the validity of the verdict and judgment in the case and is successful in that challenge, the prior judgment is a nullity and the case proceeds as if the first trial had never been had. In the case at bar the new trial proceeds upon the original indictment. The mandate of the Court in Barger v. State, 235 Md. 556, 202 A. 2d 344 (1964) was “judgment reversed and case remanded for a new trial; costs to be paid by the County Commissioners of Prince George’s County.” There is nothing in the opinion of the Court or in the mandate in that case to suggest that the new trial was not to be had on the whole case.
As the authorities cited by the majority indicate and as the pleas of autrefois acquit and autrefois convict themselves suggest, the protection of the citizen is against double jeopardy, namely, being tried again or twice for the same crime. This protection is directed to a second prosecution instituted by the state to try the defendant for a crime involved in a former case. There is no double jeopardy until the first case is finally concluded. This is the rule of the civil law, which applies the doctrine “ne bis in idem.” See Note 11 on page 1150 of the Annotation in 61 A.L.R.2d.
Secondly, the invalidating of the first “trial” and the proceeding with the new trial results from the act of the defendant, himself. But for his challenge, there would be no new trial in the same case, and the judgment—although erroneous— would become final and would successfully prevent the state from instituting a second prosecution for the same crime. There is to my mind no reason in logic or justice to permit the defendant to maintain that part of the judgment is invalid but, at the same time, assert that the other portion of it is valid and affords him protection. The defendant has the advice of counsel in regard to the problems which would be presented by a reversal of the judgment and it does not seem to me to put any abnormal or unjust burden upon him to determine what his best interest requires so far as an appeal is concerned.
On the contrary, it appears to me that to permit the defen*637dant to avail himself of the favorable part of the judgment and to challenge the unfavorable portion, places the State in an unfair and unjust position both theoretically and practically. This aspect of the matter will be more fully considered later in this opinion.
Thirdly, if the position taken by the majority were logically followed to its final conclusion, the defendant would appear to be put in “double” jeopardy by being tried again for murder in the second degree, the crime for which he was convicted by the jury in the first trial. The defense of double jeopardy applies whether the defendant has been acquitted or convicted. Hoffman v. State, 20 Md. 425 (1863). And yet all courts hold that when the defendant’s conviction is found to be erroneous, he may be “retried” for that crime without being placed in double jeopardy. The same error which led to the reversal was as present in the verdict of acquittal as in the verdict of conviction and there seems to be no logical distinction between the two situations so far as double jeopardy is concerned.
In my opinion, the three prior Maryland cases relied on by the majority—State v. Shields, 49 Md. 301 (1878); Cochran v. State, 119 Md. 539, 87 Atl. 400 (1913) and State v. Rosen, 181 Md. 167, 28 A. 2d 829 (1942)—not only do not contain any holding which would require the Court to adopt the rule set forth in the majority opinion in this case, but the dicta in those cases rather indicate the contrary. In Shields the appeal by the State was dismissed as this Court determined that the Act of 1872, Chapter 316 did not give the State the right of appeal when the defendant had been acquitted in the trial court. In the course of the opinion, Judge Miller, for the Court, stated as set forth in the majority opinion:
“It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge on a question of law, or of a misconception of fact on the part of the jury.” (Emphasis supplied). (Page 302-303 of 49 Md.).
*638The italicized words are the important ones and suggest a different result if the defendant obtains a new trial. This is also strongly suggested later in the opinion in Shields, where it is stated:
“The Court of Appeals is required to notice exceptions by the State in criminal cases, on appeals by the State, only in cases where the parties accused have been convicted, and have also taken exceptions and appeals. In such a case, if it shall be found there was error in the rulings excepted to by the accused, so that a nevo trial can be awarded him, it will then become the duty of this court to consider and determine all the questions raised by the State on its appeal, so that in the new trial the court below can be guided by the judgment of this court on all such questions, as well as on those raised by the appeal of the accused-.” (The word “convicted” is emphasized in the opinion; the remaining emphasis is supplied). (Page 306 of 49 Md.).
In Cochran, the first eight counts of the ten count indictment charging offenses under the Primary Election Law as applicable to Baltimore City were of separate and distinct offenses from those charged in the ninth and tenth counts. The defendant was acquitted on the first eight counts and convicted on the ninth and tenth counts. The defendant appealed and it is in this setting that the quotation from Shields was made. The State did not and under Shields, as well as Birkenfeld v. State, 104 Md. 253, 65 Atl. 1 (1906), could not file a cross-appeal, so that the Court quite properly observed that it was “now dealing exclusively with the ninth and tenth counts of the indictment, on the traverser’s appeal.” (Emphasis supplied).
Rosen followed both Shields and Cochran in holding that once the defendant had been found not guilty and judgment duly entered to that effect, the State had no right to appeal from that judgment whether erroneously entered or not. This-is well settled law in Maryland and elsewhere; it does not help in a solution of the problem which arises when the defendant appeals and obtains a new trial.
*639As already indicated the closest case in Maryland to the case at bar is Hobbs, and, although the holding in Hobbs does not, in my opinion, require a decision contrary to that of the majority upon the principle of stare decisis, the legal principle applied in Hobbs is sound and applicable to the case at bar and should be followed and applied in this case.
I agree with the majority, that the question is not reached of whether or not the defendant is afforded protection under the due process clause of the Fourteenth Amendment. I have the uncomfortable feeling, however, in view of the interesting and comprehensive review of the federal cases—together with the recent and extraordinary decision of the Second Circuit in United States, ex rel. Hetenyi v. Wilkins, 348 F. 2d 844 (1965) in regard to which the Supreme Court denied certiorari on February 21, 1966, and the grant of certiorari on April 4, 1966 by the Supreme Court in Cichos v. State, 208 N. E. 2d 685 (Ind., 1965), reh. den., 210 N. E. 2d 363 (1965) —that the majority has the thought that Palko v. Connecticut, 302 U. S. 319, 58 S. Ct. 149, 82 L. Ed. 299 (1937) is in grave danger of being reconsidered and overruled and that the doctrine of Green v. United States, supra (which in effect overruled Trono v. United States, supra) would be applied to the States through the due process clause of the Fourteenth Amendment upon some notion that the provision of the Fifth Amendment against double jeopardy is of such a basic character that the failure of a State to apply the federal rule “offends a principle of justice rooted in the tradition and conscience of the people.”
It is perhaps a work of judicial supererogation to state how strongly I disagree with the idea that the due process provision of the Fourteenth Amendment in some mysterious but really unexplained way, incorporates various provisions and concepts of the first eight Amendments to the Constitution of the United States and thus provides limitations upon the States by the federal courts which are not within the language of the Fourteenth Amendment, or its purposes and history.
It would seem apparent that when Congress drafted the Fourteenth Amendment and included within Section 1 as a limitation on the power of the States a portion of the Fifth *640Amendment in almost the identical language “no person shall be deprived” (Fifth Amendment) “nor shall any State deprive any person” (Fourteenth Amendment) “of life, liberty or property without due process of law” (both Amendments), the intention was to apply that limitation to the States and not any of the other provisions of the Fifth or the remaining first eight Amendments. By including this provision, Congress excluded the others both by implication and in view of the express provisions of the Tenth Amendment reserving undelegated powers to the States or to the people. See Hodges v. United States, 203 U. S. 1, 27 S. Ct. 6, 51 L. Ed. 65 (1906). The Fourteenth Amendment as well as the Thirteenth Amendment abolishing slavery and the Fifteenth Amendment preventing the States from denying or abridging the right to vote because of race, color or previous condition of servitude resulted from the Civil War and were intended to free the negro slaves and to prevent the States from denying the new freedmen equality of treatment before the law and of an equal right with others to vote. These three amendments are to be construed together (Hodges v. United States, supra) and it was contemplated that Congress should enforce these amendments by appropriate legislation. The specific power is given Congress to do this in each Amendment. In the Fourteenth Amendment, Section 5 specifically provides: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” and an identical provision appears as Section 2 of both the Thirteenth and Fifteenth Amendments. Congress, from time to time, has passed appropriate legislation to enforce these amendments by the various Civil Rights Acts. Congress has never defined due process of law in the Fourteenth Amendment as including, for example, a limitation on the establishment of religion or prohibiting the free exercise thereof as Congress is limited by the First Amendment, yet the Supreme Court in Cantwell v. Connecticut, 310 U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940) stated that this limitation applied to the States without citing any authority for such a statement and without attempting to justify such an extraordinary extension of federal judicial power over the States by the history or purposes of the Fourteenth Amendment itself. Since, that case, the expan*641sion of the concept of “due process of law” in the Fourteenth Amendment has continued at a rapid rate and apparently the end is not yet. This to my mind is not permissible. To make the scope of due process depend upon “fundamental principles of liberty and justice which lie at the base of our civil and political institutions” or a “principle of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental” not only ignores the meaning of the term as generally understood but, in effect, equates the meaning of the phrase with the ideas of fundamental principles of liberty and justice held by five members of the Supreme Court at any given time. However eminent those five justices may be and however desirable their ideas may be thought to be as abstractly considered, I do not think a proper construction of the provisions of Section 1 of the Fourteenth Amendment gives them this awesome power.
If, however, it be assumed, arguendo, that the Supreme Court properly exercised this power, does the requirement that the defendant in this case stand trial for murder in the first degree after the reversal by this Court result in a denial by Maryland to the defendant of “a fundamental principle of liberty and justice” so as to come within the purview of the Fourteenth Amendment? As the majority has pointed out, the Supreme Court specifically held in Palko v. Connecticut, supra, that it would not. The cases following Palko are set forth in the majority opinion and need not be repeated here. Prior to Palko and even prior to Trono, Mr. Justice Holmes (who concurred in the result in Trono) had dissented, (with White, Mc-Kenna, JJ.; Mr. Justice Brown also filed a dissenting opinion) from a decision by the Supreme Court holding that federal prosecutors had no right to appeal from a judgment of acquittal in a criminal case in the Phillipine Islands and the second trial after a reversal of the judgment of acquittal was double jeopardy. See Kepner v. United States, 195 U. S. 100, 134-137, 24 S. Ct. 797, 49 E. Ed. 114 (1904). Mr. Justice Holmes stated at page 134 of 195 U. S.:
“At the present time in this country there is more danger that criminals will escape justice than that they will be subjected to tyranny. * * * It is more perti*642nent to observe that it seems to me that logically and rationally a man cannot be said to be more than once in jeopardy in the same cause, however often he may be tried. The jeopardy is one continuing jeopardy from its beginning to the end of the cause. Everybody agrees that the principle in its origin was a rule forbidding a trial in a new and independent case where a man already had been tried once. But there is no rule that a man may not be tried twice in the same case.”
At pages 135-136:
“It might be said that when the prisoner takes exceptions he only is trying to get rid of a jeopardy that already exists—that so far as the verdict is in his favor, as when he is found guilty of manslaughter upon an indictment for murder, according to some decisions he will keep it and can be retried only for the less offense, so that the jeopardy only is continued to the extent that it already has been determined against him, and is continued with a chance of escape. I believe the decisions referred to to be wrong, * * *.”
By the English Criminal Appeal Act, 1907, 7 Edw. 7, c. 23, permitting appeals from sentences in criminal cases, the Court of Criminal Appeals is permitted to increase as well as to affirm or reduce the sentence of the defendant. Approximately one-half of the State appellate courts permit the trial on the greater offense at the new trial. Under these circumstances, it is difficult indeed to conclude that to require the defendant to stand trial for murder in the first degree in the case at bar would be a denial by the State of any fundamental principle of liberty and justice. It is clear to me that it would not.
I indicated at the beginning of this opinion that I thought the majority had made an untimely departure from the legal principle enunciated in Hobbs. The State has stated in its brief and at its argument before us that its inability to try the defendant at the new trial for murder in the first degree would gravely handicap the State in the prosecution of this case. It is quite apparent to me that this will be the case. This is not *643the time to weaken the position of the State in its prosecution of unlawful homicide in Maryland. The Uniform Crime Reports for 1964 issued by the Federal Bureau of Investigation on July 26, 1965 give alarming figures in regard to the increase of crime generally in the United States and also in regard to murder and non-negligent manslaughter in the State of Maryland.
A comparison of criminal offenses and the growth of population in the United States with the year 1958 indicates that from 1959 to 1964 criminal offenses increased 58% and the crime rate (the number of offenses per 100,000 population) increased 44%. Of these criminal offenses violent crime increased 40%, while the crime rate for crimes of violence increased 27% ; crimes against property increased 61 % while the rate of property crimes increased 46%. During the period in question, the population increased only 10'%. In 1964 the number of willful killings increased 8% over 1963. The national murder rate was 4.8 killings per 100,000 persons in 1964. The 9,250 victims of murder was the highest number since the postwar year of 1946 and the annual increase in murder in 1964 over 1963 represents the sharpest trend for crime in recent years.
During the period in question the Supreme Court of the United States decided four cases which initiated profound changes in criminal law procedures in the United States by imposing on the States through the Fourteenth Amendment, federal rules of exclusion of evidence seized contrary to the provisions of the Fourth Amendment, the necessity of the presence of counsel for the defendant at various stages of the accusatory process and protection against alleged self incrimination in regard to statements made by the accused. These are: Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L.Ed.2d 1081 (1961); Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Malloy v. Hogan, 378 U. S. 1, 84 S. Ct. 1489, 12 E. Ed. 2d 653 (1964) and Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). I have seen no studies which attempt to show what effect these decisions may have had upon the extraordinary increase in crime in the United States, but if the certainty of apprehension, conviction and pun*644ishment of criminals acts as a deterrent to criminal activity (as I believe it to be), it seems reasonable to suppose that these decisions have played some part in that increase. Be that as it may, the alarming increase in crime throughout the nation should lead us to decline to weaken further the enforcement of the criminal law.
In addition to the national crime figures, Maryland in 1964 had a vei'y high rate of murder and non-negligent manslaughter. Maryland’s rate was 6.7 p,er 100,000 inhabitants, as compared with the national rate of 4.8. This is more than 100% higher than the rate of Pennsylvania (3.3), New Jersey (3.1) and West Virginia (3.7). It is more than 50% higher than that of Delaware (4.3) and is approximately 46% higher than that of New York (4.6). Only 12 States in the nation have rates in excess of the Maryland rate, i.e., Alabama, Alaska, Arkansas, Florida, Georgia, Louisiana, Mississippi, Nevada, North Carolina, South Carolina, Texas and Virginia, the latter State being only slightly higher (6.8). Surely we should not weaken at this time the State’s enforcement of the criminal law in regard to murder.
For all of these reasons, I would reverse the lower court.
. The opinion of the majority in Green v. United States has received adverse comment in two law review articles. See Mayers and Yarbrough, “Double Jeopardy & Collateral Estoppel,” 74 Harvard Law Review 1, at page 27 where it was stated: “The jury, having necessarily found the requisite components of felony murder, in no way impliedly acquitted Green of that crime. Its improper failure to convict was possibly based on the very error from which the defendant appealed. In view of these two considerations, no substantial unfairness is visited upon the defendant which can be considered a constitutional impediment to the common-sense conclusion that, the error having been rectified, all issues whose resolution was possibly tainted should be retried.” See also Boches’ case note in regard to the Green case, 56 Michigan Láw Review 1192 at 1194 where it was stated: “More fundamentally, it is doubtful that due process fairness concepts are relevant at all in this area. Under English common law neither appeal nor retrial was *631permitted. The framers, however, apparently felt that appeal and retrial should be permitted to the defendant, and this conclusion was generally accepted by the early American cases. It therefore seems probable that the double jeopardy clause was intended to have no application to any case in which the defendant appealed an adverse verdict. The common law prohibition was designed to assure that no man would continually be vexed for the same offense, but when continued vexation is of his own choosing, the constitutional safeguard no longer seems applicable. Precedent, logic, and the interests of society in enforcing its criminal laws would therefore indicate a contrary result in this case.”