John Marshall Harlan II

“ The idea that the State's interest in convicting wrongdoers is entirely satisfied by one fair trial ending in an acquittal, and that the accused's interest in repose must thereafter be given precedence, is indubitably a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id., at 325, 58 S.Ct., at 152.
The situation in this case is not quite so simple. Had petitioner not appealed his burglary conviction, the State would surely have allowed him to rest on his larceny acquittal and merely serve out his burglary sentence. ”

“ In thi instance, petitioner's double jeopardy argument is directed to his larceny conviction, but he claims that the concurrent sentence doctrine is no impediment to reaching that question because his concurrent, and otherwise valid, burglary conviction was tainted by having been tried together with the larceny count. It is therefore necessary to consider whether this claim of taint has merit.
The Court finds that resolution of the taint issue is likely to involve such difficult points of Maryland law as to make a remand to the Maryland courts the soundest course. ”

“ I conclude that there was no real possibility of taint. Burglary in Maryland consists of breaking and entering any dwelling house in the nighttime with intent to steal, take, or carry away the personal goods of another. See Md.Code Ann., Art. 27, § 30 (a) (1967) . 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. ”

“ No such consequences can reasonably be predicted. The Court itself notes that only a 'few States' would allow petitioner's larceny conviction to be used against him for purposes of sentencing as a habitual offender, and concedes that 'this possibility may well be a remote one.' Ante, at 790-791. When it is recalled that petitioner had been convicted of three felonies even prior to his present burglary conviction, this possibility is reduced to the vanishing point. ”

“ 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. ”