Byron White

“ Petitioner appealed, and the Maryland courts remanded in light of earlier Maryland decisions holding invalid a provision of the Maryland Constitution requiring that grand and petit jurors declare their belief in God. Petitioner was given the option either of accepting the result of his trial or of demanding reindictment and retrial. He chose to attack the indictment, was re-indicted and retried for both larceny and burglary, and was convicted of both offenses.
The principle that an accused should not be tried twice for the same offense is deeply rooted in Anglo-American law. ”

“ Under the pressures of the closing days of the Term, I am content to rest on what I have written in prior opinions, save to raise my voice again in protest against a doctrine which so subtly, yet profoundly, is eroding many of the basics of our federal system. ”

“ Larceny in Maryland is a common-law crime, consisting of the taking and carrying away of the personal property of another with intent to deprive the owner of the property permanently. See e.g., Fletcher v. State, 231 Md. 190, 189 A.2d 641 (1963) . Evidence was introduced at petitioner's second trial to show that he not only entered a locked house at night but also made off with several household appliances. The latter evidence was, of course, pertinent to the larceny count. However, it was also plainly relevant to the burglary count, since it tended to show intent to steal. ”

“ When the accused has obtained a reversal on appeal, the societal interest in convicting the guilty has been deemed too weighty to permit every such accused to be 'granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.' United States v. ”

“ Where a man has been convicted on several counts and sentenced concurrently upon each, and where judicial review of one count sustains its validity, the need for review of the other counts is not a pressing one since, regardless of the outcome, the prisoner will remain in jail for the same length of time under the count upheld. ”

“ Georgia, 217 U.S. 284, 30 S.Ct. 514, 54 L.Ed. 768 (1910) , in which the Court held in a brief per curiam, without citing any authority, that a Georgia retrial and conviction for murder following the reversal on appeal of an earlier manslaughter conviction did not amount to 'a case of twice in jeopardy under any view of the Constitution of the United States.' Id., at 285, 30 S.Ct., at 515. [16] We have since recognized that the 'waiver' rationale is a 'conceptual abstraction' which obscures rather than illuminates the underlying clash of societal and individual interests. ”

“ See United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964) . Accordingly, 1 do not think that the reasoning in Trono or the apparent holding in Brantley, insofar as they would require affirmance of petitioner's larceny conviction, can any longer be regarded as good law.
Nor did the State in the present case have the sorts of interests which have been held to justify retrial for the same offense after a conviction has been reversed on appeal by the accused and in the more unusual case when an acquittal has been set aside following an appeal by the State. ”

“ The second of the 'special circumstances' relied on by the Court is that 'in this case the (state courts) decided not to apply the concurrent sentence rule' and reached the 'double jeopardy' issue themselves. See ante, at 792. The Court concludes that ' (s) ince (the Maryland courts) decided this federal constitutional question, we see no reason why we should not do so as well.' See ante, at 792-793. ”