Opinion of the Court by
Mr. Justice Black,
announced by Mr. Justice Douglas.
This case presents a serious question concerning the meaning and application of that provision of the Fifth Amendment to the Constitution which declares that no person shall
“. . . be subject for the same offence to be twice put in jeopardy of life or limb . . .
The petitioner, Everett Green, was indicted by a District of Columbia grand jury in two counts. The first charged that he had committed arson by maliciously setting fire to a house. The second accused him of causing the death of a woman by this alleged arson which if true amounted to murder in the first degree punishable by death. Green entered a plea of not guilty to both counts and the case was tried by a jury. After each side had presented its evidence the trial judge instructed the jury that it could find Green guilty of arson under the first count and of either (1) first degree murder or (2) second degree murder under the second count. The trial judge treated second degree murder, which is defined by the District Code as the killing of another with malice aforethought and is punishable by imprisonment for a term of years or for life, as an offense included within the language charging first degree murder in the second count of the indictment.
The jury found Green guilty of arson and of second degree murder but did not find him guilty on the charge of murder in the first degree. Its verdict was silent on that charge. The trial judge accepted the verdict, entered the proper judgments and dismissed the jury. Green was sentenced to one to three years’ imprisonment for arson and five to twenty years’ imprisonment for murder in the second degree. He appealed the conviction of second degree murder. The Court of Appeals reversed that conviction because it was not supported by evidence and remanded the case for a new trial. 95 U. S. App. D. C. 45, 218 F. 2d 856.
On remand Green was tried again for first degree murder under the original indictment. At the outset of this second trial he raised the defense of former jeopardy but the court overruled his plea. This time a new jury found him guilty of first degree murder and he was given the mandatory death sentence. Again he appealed. Sitting en banc, the Court of Appeals rejected his defense of former jeopardy, relying on Trono v. United States, 199 U. S. 521, and affirmed the conviction. 98 U. S. App. D. C. 413, 236 F. 2d 708. One judge concurred in the result, and three judges dissented expressing the view that Green had twice been placed in jeopardy in violation of the Constitution. We granted certiorari, 352 U. S. 915. Although Green raises a number of other contentions here we find it necessary to consider only his claim of former jeopardy.
The constitutional prohibition against “double jeopardy” was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. In his Commentaries, which greatly influenced the generation that adopted the Constitution, Blackstone recorded:
“. . . the plea of auterjoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.”
Substantially the same view was taken by this Court in Ex parte Lange, 18 Wall. 163, at 169:
“The common law not only prohibited a second punishment for the same offence, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted.”
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
In accordance with this philosophy it has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant’s jeopardy, and even when “not followed by any judgment, is a bar to a subsequent prosecution for the same offence.” United States v. Ball, 163 U. S. 662, 671. Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous. United States v. Ball, supra; Peters v. Hobby, 349 U. S. 331, 344-345. Cf. Kepner v. United States, 195 U. S. 100; United States v. Sanges, 144 U. S. 310.
Moreover it is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge. This Court, as well as most others, has taken the position that a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again. Wade v. Hunter, 336 U. S. 684; Kepner v. United States, 195 U. S. 100, 128. In general see American Law Institute, Administration of The Criminal Law: Double Jeopardy 61-72 (1935). This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict. At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where “unforeseeable circumstances . . . arise during [the first] trial making its completion impossible, such as the failure of a jury to agree on a verdict.” Wade v. Hunter, 336 U. S. 684, 688-689.
At common law a convicted person could not obtain a new trial by appeal except in certain narrow instances. As this harsh rule was discarded courts and legislatures provided that if a defendant obtained the reversal of a conviction by his own appeal he could be tried again for the same offense. Most courts regarded the new trial as a second jeopardy but justified this on the ground that the appellant had “waived” his plea of former jeopardy by asking that the conviction be set aside. Other courts viewed the second trial as continuing the same jeopardy which had attached at the first trial by reasoning that jeopardy did not come to an end until the accused was acquitted or his conviction became final. But whatever the rationalization, this Court has also held that a defendant can be tried a second time for an offense when his prior conviction for that same offense had been set aside on appeal. United States v. Ball, 163 U. S. 662.
In this case, however, we have a much different question. At Green's first trial the jury was authorized to find him guilty of either first degree murder (killing while perpetrating a felony) or, alternatively, of second degree murder (killing with malice aforethought). The jury found him guilty of second degree murder, but on his appeal that conviction was reversed and the case remanded for a new trial. At this new trial Green was tried again, not for second degree murder, but for first degree murder, even though the original jury had refused to find him guilty on that charge and it was in no way involved in his appeal. For the reasons stated hereafter, we conclude that this second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution.
Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury’s verdict as an implicit acquittal on the charge of first degree murder. But the result in this case need not rest alone on the assumption, which we believe legitimate, that the jury for one reason or another acquitted Green of murder in the first degree. For here, the jury was dismissed without returning any express verdict on that charge and without Green’s consent. Yet it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seems clear, under established principles of former jeopardy, that Green’s jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense. Wade v. Hunter, 336 U. S. 684. In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: “We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.”
After the original trial, but prior to his appeal, it is indisputable that Green could not have been tried again for first degree murder for the death resulting from the fire. A plea of former jeopardy would have absolutely barred a new prosecution even though it might have been convincingly demonstrated that the jury erred in failing to convict him of that offense. And even after appealing the conviction of second degree murder he still could not have been tried a second time for first degree murder had his appeal been unsuccessful.
Nevertheless the Government contends that Green “waived” his constitutional defense of former jeopardy to a second prosecution on the first degree murder charge by making a successful appeal of his improper conviction of second degree murder. We cannot accept this paradoxical contention. “Waiver” is a vague term used for a great variety of purposes, good and bad, in the law. In any normal sense, however, it connotes some kind of voluntary knowing relinquishment of a right. Cf. Johnson v. Zerbst, 304 U. S. 458. When a man has been convicted of second degree murder and given a long term of imprisonment it is wholly fictional to say that he “chooses” to forego his constitutional defense of former jeopardy on a charge of murder in the first degree in order to secure a reversal of an erroneous conviction of the lesser offense. In short, he has no meaningful choice. And as Mr. Justice Holmes observed, with regard to this same matter in Kepner v. United States, 195 U. S. 100, at 135: “Usually no such waiver is expressed or thought of. Moreover, it cannot be imagined that the law would deny to a prisoner the correction of a fatal error, unless he should waive other rights so important as to be saved by an express clause in the Constitution of the United States.”
It is true that in Kepner, a case arising in the Philippine Islands under a statutory prohibition against double jeopardy, Mr. Justice Holmes dissented from the Court’s holding that the Government could not appeal an acquittal in a criminal prosecution. He argued that there was only one continuing jeopardy until the “case” had finally been settled, appeal and all, without regard to how many times the defendant was tried, but that view was rejected by the Court. The position taken by the majority in Kepner is completely in accord with the deeply entrenched principle of our criminal law that once a person has been acquitted of an offense he cannot be prosecuted again on the same charge. This Court has uniformly adhered to that basic premise. For example, in United States v. Ball, 163 U. S. 662, 671, a unanimous Court held:
“The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting [the defendant] twice in jeopardy, and thereby violating the Constitution.”
And see Peters v. Hobby, 349 U. S. 331, 344-345; United States v. Sanges, 144 U. S. 310.
Using reasoning which purports to be analogous to that expressed by Mr. Justice Holmes in Kepner, the Government alternatively argues that Green, by appealing, prolonged his original jeopardy so that when his conviction for second degree murder was reversed and the case remanded he could be tried again for first degree murder without placing him in new jeopardy. We believe this argument is also untenable. Whatever may be said for the notion of continuing jeopardy with regard to an offense when a defendant has been convicted of that offense and has secured reversal of the conviction by appeal, here Green was not convicted of first degree murder and that offense was not involved in his appeal. If Green had only appealed his conviction of arson and that conviction had been set aside surely no one would claim that he could have been tried a second time for first degree murder by reasoning that his initial jeopardy on that charge continued until every offense alleged in the indictment had been finally adjudicated.
Reduced to plain terms, the Government contends that in order to secure the reversal of an erroneous conviction of one offense, a defendant must surrender his valid defense of former jeopardy not only on that offense but also on a different offense for which he was not convicted and which was not involved in his appeal. Or stated in the terms of this case, he must be willing to barter his constitutional protection against a second prosecution for an offense punishable by death as the price of a successful appeal from an erroneous conviction of another offense for which he has been sentenced to five to twenty years’ imprisonment. As the Court of Appeals said in its first opinion in this case, a defendant faced with such a “choice” takes a “desperate chance” in securing the reversal of the erroneous conviction. The law should not, and in our judgment does not, place the defendant in such an incredible dilemma. Conditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy.
The Government argues, however, that we should accept Trono v. United States, 199 U. S. 521, as a conclusive precedent against Green’s claim of former jeopardy. The Trono case arose in the Philippine Islands, shortly after they had been annexed by the United States, under a statutory prohibition against double jeopardy. At that time a sharply divided Court took the view that not all constitutional guarantees were “applicable” in the insular possessions, particularly where the imposition of these guarantees would disrupt established customs. Downes v. Bidwell, 182 U. S. 244. In Trono the defendants had been charged with murder but were acquitted by the trial court which instead found them guilty of the lesser offense of assault. They appealed the assault conviction to the Philippine Supreme Court. That court, acting under peculiar local procedures modeled on pre-existing Spanish practices, which allowed it to review the facts and law and to substitute its findings for those of the trial judge, set aside their acquittal, found them guilty of murder and increased their sentences.
On review by this Court, Mr. Justice Peckham, writing for himself and three other Justices, took the position that by appealing the conviction for assault the defendants waived their plea of former jeopardy with regard to the charge of murder. He said:
“We do not agree to the view that, the accused has the right to limit his waiver as to jeopardy, when he appeals from a judgment against him. As the judgment stands before he appeals, it is a complete bar to any further prosecution for the offense set forth in the indictment .... No power can wrest from him the right to so use that judgment, but if he chooses to appeal from it ... he thereby waives, if successful, his right to avail himself of the former acquittal of the greater offense . . . .” 199 U. S., at 533.
Mr. Justice Holmes refused to join the Peckham opinion but concurred in the result. Just the year before, in Kepner v. United States, 195 U. S. 100, 135, he had sharply denounced the notion of “waiver” as indefensible. There is nothing which indicates that his views had changed in the meantime. As pointed out above, he did dissent from the holding in Kepner — that the Government could not appeal an acquittal — on the ground that a new trial after an appeal by the Government was part of a continuing jeopardy rather than a second jeopardy. But that contention has been consistently rejected by this Court.
Chief Justice Fuller and Justices Harlan, White, and McKenna dissented in Trono. Mr. Justice McKenna wrote a dissent which was concurred in by Justices White and Harlan. During the course of this opinion he stated:
“It is, in effect, held that because the defendants . . . appealed and sought a review, as authorized by the statute, of the minor offense for which they were convicted, the United States was given the right to try them for the greater offense for which they were acquitted. ... I think that the guarantees of constitutions and laws should not be so construed. . . . I submit that the State seeks no convictions except in legal ways, and because it does not it affords means of review of erroneous rulings and judgments, and freély affords such means. It does not clog them with conditions or forfeit by their exercise great and constitutional rights.
“Here and there may be found a decision which supports the exposition of once in jeopardy expressed in the [Peckham] opinion. Opposed to it is the general consensus of opinion of American text books on criminal law and the overwhelming weight of American decided cases.” 199 U. S., at 538-539, 540.
We do not believe that Trono should be extended beyond its peculiar factual setting to control the present case. All that was before the Court in Trono was a statutory provision against double jeopardy pertaining to the Philippine Islands — a territory just recently conquered with long-established legal procedures that were alien to the common law. Even then it seems apparent that a majority of the Court was unable to agree on any common ground for the conclusion that an appeal of a lesser offense destroyed a defense of former jeopardy on a greater offense for which the defendant had already been acquitted. As a matter of fact, it appears that each of the rationalizations advanced to justify this result was rejected by a majority of the Court. As Mr. Justice Holmes, who concurred in the result, effectively demonstrated, the “waiver theory” is totally unsound and indefensible. On the other hand Mr. Justice Holmes’ theory of continuing jeopardy has never outwardly been adhered to by any other Justice of this Court.
We believe that if either of the rationales offered to support the Trono result were adopted here it would unduly impair the constitutional prohibition against double jeopardy. The right not to be placed in jeopardy more than once for the same offense is a vital safeguard in our society, one that was dearly won and one that should continue to be highly valued. If such great constitutional protections are given a narrow, grudging application they are deprived of much of their significance. We do not feel that Trono or any other decision by this Court compels us to forego the conclusion that the second trial of Green for first degree murder was contrary to both the letter and spirit of the Fifth Amendment.
Reversed.
D. C. Code, 1951, §22-401.
D. C. Code, 1951, § 22-2401. “Whoever, being of sound memory and discretion . . . without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-401 ... is guilty of murder in the first degree.”
Section 22-2404 provides that the “punishment of murder in the first degree shall be death by electrocution.”
D. C. Code, 1951, § 22-2403. “Whoever with malice aforethought except as provided in [§] 22-2401 . . . kills another, is guilty of murder in the second degree.”
§ 22-2404. “The punishment of murder in the second degree shall be imprisonment for life, or for not less than twenty years.”
4 Blackstone’s Commentaries 335.
And see United States v. Ball, 163 U. S. 662, 669:
“The prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial.”
See 1 Stephen, History of the Criminal Law of England, c. x; United States v. Gibert, 25 Fed. Cas. 1287.
Under English law the appellate court has no power to order a new trial after any appeal except in certain cases where the first trial was a complete “nullity,” as for example when the trial court was without jurisdiction over the person or subject matter. See 4 Stephen, Commentaries on the Laws of England (21st ed. 1950), 284. The English appellate court does have power to substitute a finding of guilt of a lesser offense if the evidence warrants, but it cannot find the defendant guilty of an offense for which he was acquitted or increase his sentence. See 10 Halsbury, Laws of England (Simonds ed. 1955), 539-541, and the cases cited there.
See, e. g., Brewster v. Swope, 180 F. 2d 984; State v. McCord, 8 Kan. 232, 12 Am. Rep. 469; Cross v. Commonwealth, 195 Va. 62, 77 S. E. 2d 447; Smith v. State, 196 Wis. 102, 219 N. W. 270.
See, e. g., State v. Aus, 105 Mont. 82, 69 P. 2d 584. Cf. Griffin v. Illinois, 351 U. S. 12, 18.
In substance the situation was the same as though Green had been charged with these different offenses in separate but alternative counts of the indictment. The constitutional issues at stake here should not turn on the fact that both offenses were charged to the jury under one count.
It should be noted that Green’s claim of former jeopardy is not based on his previous conviction for second degree murder but instead on the original jury's refusal to convict him of first degree murder.
Many of the state courts which have considered the problem have concluded that under circumstances similar to those of this case a defendant cannot be tried a second time for first degree murder. Other state cases take a contrary position. In general see the Annotations at 59 A. L. R. 1160, 22 L. R. A. (N. S.) 959, and 5 L. R. A. (N. S.) 571. Of course, many of the state decisions rest on local constitutional or statutory provisions.
See cases collected in the Annotations cited in n. 12, supra, and the Annotation at 114 A. L. R. 1406.
The suggestion is made that under the District Code second degree murder is not an offense included in a charge of first degree murder for causing a death in the course of perpetrating a felony (commonly referred to as “felony murder”) because it involves elements different from those necessary to establish the felony murder, and that therefore Green could not legally have been convicted of second degree murder under the indictment. We fail to comprehend how this suggestion aids the Government. In the first place, the District of Columbia Court of Appeals has expressly held that second degree murder is a lesser offense which can be proved under a charge of felony murder. Goodall v. United States, 86 U. S. App. D. C. 148, 180 F. 2d 397; Green v. United States, 95 U. S. App. D. C. 45, 218 F. 2d 856. Even more important, Green’s plea of former jeopardy does not rest on his conviction for second degree murder but instead on the first jury’s refusal to find him guilty of felony murder.
It is immaterial whether second degree murder is a lesser offense included in a charge of felony murder or not. The vital thing is that it is a distinct and different offense. If anything, the fact that it cannot be classified as “a lesser included offense” under the charge of felony murder buttresses our conclusion that Green was unconstitutionally twice placed in jeopardy. American courts have held with uniformity that where a defendant is charged with two offenses, neither of which is a lesser offense included within the other, and has- been found guilty on one but not on the second he cannot be tried again on the second even though he secures reversal of the conviction and even though the- two offenses are related offenses charged in the same indictment. See, e. g., Annotation, 114 A. L. R. 1406.
With the exception of Trono, the Government appears to concede in its brief, pp. 38-39, that the double jeopardy problem raised in this case has not been squarely before this Court. Palko v. Connecticut, 302 U. S. 319, Brantley v. Georgia, 217 U. S. 284, and Kring v. Missouri, 107 U. S. 221, are not controlling here since they involved trials in state courts. Stroud v. United States, 251 U. S. 15, is clearly distinguishable. In that case a defendant was retried for first degree murder after he had successfully asked an appellate court to set aside a prior conviction for that same offense.
In the course of his opinion Mr. Justice Peckham made some' general observations to the effect that he regarded the statutory provision as having the same effect as the Fifth Amendment. Those remarks were not essential to the decision so that even if they had been accepted by the full Court they would not be conclusive in this case where the interpretation of the Fifth Amendment is necessarily decisive. Cf. Cohens v. Virginia, 6 Wheat. 264, 399; Humphrey’s Executor v. United States, 295 U. S. 602, 626-627.
Mr. Justice White and Mr. Justice McKenna who dissented with Mr. Justice Holmes in Kepner refused to agree with the Court in Trono. In his dissent in the latter case Mr. Justice McKenna attributed his vote in Kepner to the fact that the Philippine Islands had a system of jurisprudence which was totally different from ours in that it provided no trial by jury and traditionally had permitted appellate courts to review both the law and the facts in criminal cases and to substitute their findings for those made by the trial judge. Justice Peckham, in his opinion, also recognized the peculiar nature of these Philippine procedures.
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