355 U.S. 184 (1957)
Everett Green was indicted by a District of Columbia grand jury in two counts.1 The first count charged that he had committed arson by maliciously setting fire to a house.2 The second count 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.3
Green entered a plea of not guilty to both counts and the case was tried by a jury.4 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 first degree murder or second degree murder under the second count.5 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.6 Its verdict was silent on that charge.7 The trial judge accepted the verdict, entered the proper judgments and dismissed the jury.8 Green was sentenced to one to three years' imprisonment for arson and five to twenty years' imprisonment for murder in the second degree.9
Green appealed the conviction of second degree murder.10 The Court of Appeals reversed that conviction because it was not supported by evidence and remanded the case for a new trial.11
On remand Green was tried again for first degree murder under the original indictment.12 At the outset of this second trial he raised the defense of former jeopardy but the court overruled his plea.13 This time a new jury found him guilty of first degree murder and he was given the mandatory death sentence.14
Green appealed again.15 Sitting en banc, the Court of Appeals rejected his defense of former jeopardy and affirmed the conviction.16 The Supreme Court granted certiorari.17
Whether the Double Jeopardy Clause of the Fifth Amendment prohibits retrying a defendant for first degree murder after a jury at the first trial was instructed on that charge but returned a verdict of guilty only on second degree murder, which conviction was later reversed on appeal for insufficient evidence?18
The Double Jeopardy Clause of the Fifth Amendment declares that no person shall be subject for the same offence to be twice put in jeopardy of life or limb.19 This provision was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.20 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.21 An implied acquittal on a greater charge occurs when the jury is instructed on both greater and lesser offenses, convicts only on the lesser, and remains silent on the greater.22
Yes. At Green's first trial the jury was authorized to find him guilty of either first degree murder or second degree murder.23 The jury found him guilty of second degree murder but remained silent on first degree murder.24 This silence constituted an implied acquittal on the first degree murder charge.25
Although Green appealed and obtained reversal of the second degree murder conviction for insufficient evidence, the reversal did not permit retrial on the first degree murder charge.26 Jeopardy on that charge had terminated when the jury was discharged without returning a verdict on it and without Green's consent.27 The government's contention that Green waived his double jeopardy defense by appealing the lesser conviction is untenable.28 He had no meaningful choice and the waiver theory is wholly fictional.29
The second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Fifth Amendment.30
Related opinions on this issue
Joined by Justices Burton, Clark, And Harlan
Justice Frankfurter dissented on the ground that the question presented was effectively indistinguishable from that decided in Trono v. United States.31 He maintained that by appealing the conviction for the lesser offense the defendant waived the defense of former jeopardy with respect to the greater offense.32 Frankfurter emphasized the principle of stare decisis.33 He observed that the jury's silence on the greater offense should not be treated as an express acquittal, particularly where the erroneous instruction on second degree murder had permitted an irrational compromise verdict.34
He concluded that the reversal justified a complete new trial on the original indictment without violating the Double Jeopardy Clause.35