190, n. 10, 78 S.Ct. 221. “The Supreme Court is clear that a defendant may not be retried after an implied acquittal of any offense. The defining fact is that ‘it is a distinct and different offense.’ ” Brazzel v. Washington, 491 F.3d 976, 982 (9th Cir.2007), quoting Green, 355 U.S. at 191, 194, 78 S.Ct. 221. “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.” Green, 355 U.S. at 194, 78 S.Ct. 221. Green indicates that where an appeal is taken, a defendant cannot be prosecuted for the greater offense for which he was already acquitted in the conviction of the lesser included offense. See also Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (<HOLDING>). If Mr. Tomlin had been convicted of indecent
holding larceny conviction was a violation of bar against double jeopardy where defendant was acquitted of larceny at first trial but at retrial was convicted of larceny and burglary holding that possession of stolen property is proper circumstance to consider in determining whether there was evidence tending to connect defendant with crimes of burglary and grand larceny holding under oregons larceny statute which is based on new yorks larceny statute that a partner cannot be charged with the theft of partnership property because oregon adheres to the commonlaw rule that partners cannot steal partnership property holding double jeopardy did not bar retrial where a jury could not render a verdict and a mistrial was granted holding that when jury acquitted defendant on greater offense but deadlocked on lesserincluded offenses double jeopardy did not bar retrial of the lesers