Is a conviction of a lesser crime necessarily included in the charge of a greater crime set to be overturned?

In California a distinction has been drawn by the courts to the effect that where one is convicted of a lesser offense necessarily included in the charge of a greater offense, he may not be tried again on a charge that he has committed the greater offense. On the other hand, where a crime divided into degrees is concerned, a conviction of a lower degree of the crime has been held not to operate as an acquittal of the higher degree. In other words, it has been held that where one is found guilty of a lesser and necessarily included offense he has been placed in jeopardy and cannot again be tried for the greater offense with which he was originally charged; but where one is found guilty of second degree burglary, for example, the conviction is not considered an acquittal of a charge of first degree burglary or that the defendant has been once in jeopardy. The reasoning appears to be that in the crimes which are divided into degrees but one crime or offense has been charged and that a reversal by an appellate court, or the granting of a new trial operates to set aside the whole verdict leaving the entire matter at [50 Cal.2d 644] large. Petitioners here rely on the cases holding that the conviction of a lesser offense operates as an acquittal of the greater charged offense (People v. Gilmore, 4 Cal.

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