The opinion
GALBREATH, Judge
(dissenting).
I must respectfully dissent.
The majority opinion cites the controlling case on the question of whether increased punishment on a subsequent trial may be constitutionally inflicted, but has apparently misconstrued, as I see it, the plain holding of the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (June, 1969).
Instead of approving the imposition of a more severe punishment following a successful attack on the first conviction Pearce declares that unless there affirmatively appears in the record a reason and justification for the increased penalty, it must be considered unconstitutional.
Following the language cited by the majority from Pearce , which merely reiterates the accepted principle that increased punishment does not in and of itself amount to double jeopardy, Justice Potter Stewart, speaking for a remarkably united court (only two dissents in part) then goes on to explain how such an imposition of a greatly enhanced penalty without ex *246 planation as encountered here is unconstitutional. Not because of the proscription against double jeopardy but because placing such an intolerable burden or risk upon a person seeking to overturn an unjust conviction robs him of due process:
“It can hardly be doubted that it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside. Where, as in each of the cases before us, the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, ‘penalizing those who choose to exercise’ constitutional rights, ‘would be patently unconstitutional.’ United States v. Jackson, 390 U.S. 570, 581 , 88 S.Ct. 1209, 1216 , 20 L.Ed.2d 138 . And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to ‘chill the exercise of basic constitutional rights.’ Id., at 582 , 88 S.Ct., at 1216 . See also Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 ; cf. Johnson v. Avery, 393 U.S. 483 , 89 S.Ct. 747 , 21 L.Ed.2d 718 . But even if the first conviction has been set aside for nonconstitutional error, the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law. ‘A new sentence, with enhanced punishment, based upon such a reason, would be a flagrant violation of the rights of the defendant.’ *247 Nichols v. United States, 106 F. 672, 679 . A court is ‘without right to * * * put a price on an appeal. A defendant’s exercise of a right of appeal must be free and unfettered. * * * [I]t is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice.’ Worcester v. Commissioner of Internal Revenue, 1 Cir., 370 F.2d 713, 718 . See Short v. United States, 120 U.S.App.D.C. 165 , 344 F.2d 550, 552 . ‘This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 ; Douglas v. California, 372 U.S. 353 , 83 S.Ct. 814 , 9 L.Ed.2d 811 ; Lane v. Brown, 372 U.S. 477 , 83 S.Ct. 768 , 9 L.Ed.2d 892 ; Draper v. Washington, 372 U.S. 487 , 83 S.Ct. 774 , 9 L.Ed.2d 899 .’ Rinaldi v. Yeager, 384 U.S. 305, 310-311 , 86 S.Ct. 1497, 1500-1501 , 16 L.Ed.2d 577 .
“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
“In order to assure the absence of such a motivation, *248 we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” North Carolina v. Pearce, supra.
No reason appears in this case for imposition of a harsher penalty and the only reason suggested in the briefs before this Court is that of the petitioner that he was being punished for exercising his right to a new trial.
It is abundantly clear to me that the part of the sentence imposed in this case over and beyond the twenty years first fixed is void. It matters not that the sentence was fixed by a jury rather than the judge. The judge had to approve the sentence and pronounce judgment on it. A jury should not be allowed to violate the constitution any more than a court. In this, I must further disagree with my brethren who in the majority opinion said “it is practically inconceivable that the second jury had such knowledge” (of the original conviction for raping a child). To me, it is completely, not practically, inconceivable that in rural Maury County a jury impaneled some two weeks after the first trial and a few days after the setting aside of its result (the first trial was April 6, 1948; the second April 24, 1948) did not know of the prior proceeding! That there might exist a *249 strong resentment on the part of members of the second jury that the defendant was trifling with justice and should be severely punished for his audacity in trying to escape his just deserts is too strong a probability to dismiss lightly. If the United States Supreme Court does not believe it proper for a judge to double or triple a man’s punishment without some affirmative showing that facts not known during the first trial justify such increase, I cannot agree that such awesome power of vindictiveness should be entrusted to laymen.
The prisoner has paid the debt imposed constitutionally and should be released.