Collateral Estoppel in Criminal Cases

What happens when a defendant is acquitted of one charge but hung on the other? Can the state prosecute the defendant again on the second charge, or would that be double jeopardy?


In this SC Court of Appeals case, a defendant was charged with Burglary and Petit Larceny. At his first trial, he was acquitted of the larceny and hung on the burglary. Before the start of his second trial on the burglary, the defense moved to dismiss the burglary because of double jeopardy. The argument was that because the jury acquitted on the larceny, then the next jury cannot convict on burglary because the larceny is an essential element of the burglary charge. However, the court disagreed and distinguished between "larceny" and "intent to commit a crime therein" and held:

Because Henley's acquittal for larceny did not settle the critical issue of ultimate fact as to whether he entered Victim's home without consent with the intent to commit a crime, the State was not precluded from retrying him for first degree burglary.



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