opinion: PRESNELL v. GEORGIA
  No. 77-6885.
  Decided November 6, 1978
  Per Curiam.
  Petitioner was indicted and found guilty by a jury of three capital offenses — rape, kidnaping with bodily injury, and murder with malice aforethought. Under Georgia law, a jury may impose the death penalty if it finds that the offender committed a capital felony under at least 1 of 10 statutorily enumerated aggravating circumstances. Ga. Code § 27-2534.1 (b) (1975). The only such circumstance relevant here is that
  “[t]he [capital] offense . . . was committed while the offender was engaged in the commission of another capital felony . . . §27-2534.1 (b)(2).
  At the penalty phase of petitioner’s trial, the jury was instructed that it could impose the death penalty (1) for rape if that offense was committed while petitioner was engaged in the commission of murder, (2) for kidnaping with bodily injury if that offense was committed while petitioner was engaged in the commission of rape, or (3) for murder if that offense was committed while petitioner was engaged in the commission of “kidnapping with bodily harm, aggravated sodomy.” The jury found that all three offenses were committed during the commission of the specified additional offenses, and it imposed three death sentences on petitioner.
  On appeal, the Supreme Court of Georgia held that the first two death sentences imposed by the jury could not stand. 241 Ga. 49, 52, 64, 243 S. E. 2d 496, 501, 508 (1978). Both sentences depended upon petitioner’s having committed forcible rape, and the court determined that the jury had not properly convicted petitioner of that offense.
  In addition, the Supreme Court of Georgia held that the State could not rely upon sodomy as constituting the bodily injury associated with the kidnaping. Nonetheless, despite the fact that the jury had been instructed that the death penalty for murder depended upon a finding that it was committed while petitioner was engaged in “kidnapping with bodily harm, aggravated sodomy” (emphasis added), the Georgia Supreme Court upheld the third death penalty imposed by the jury. It did so on the theory that, despite the lack of a jury finding of forcible rape, evidence in the record supported the conclusion that petitioner was guilty of that offense, which in turn established the element of bodily harm necessary to make the kidnaping a sufficiently aggravating circumstance to justify the death sentence.
  In Cole v. Arkansas, 333 U. S. 196 (1948), petitioners were convicted at trial of one offense but their convictions were affirmed by the Supreme Court of Arkansas on the basis of evidence in the record indicating that they had committed another offense on which the jury had not been instructed. In reversing the convictions, Mr. Justice Black wrote for a unanimous Court:
  “It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made. . . .
  “To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court.” Id., at 201-202.
  These fundamental principles of procedural fairness apply with no less force at the penalty phase of a trial in a capital case than they do in the guilt-determining phase of any criminal trial. Cf. Gardner v. Florida, 430 U. S. 349 (1977). In light of these principles, the death sentence for the crime of murder with malice aforethought cannot stand.
  Insofar as the petition for certiorari challenges the conviction for kidnaping with bodily injury and the imposition of the death sentence, it is granted along with petitioner’s motion to proceed in forma pauperis. The judgment of the Supreme Court of Georgia affirming the conviction for kid-naping with bodily injury and the death sentence for murder is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Insofar as the petition challenges the convictions for murder, kidnaping, and statutory rape, it is denied.
  It is so ordered.
  Petitioner was indicted and found guilty by the jury of “rape.” Because the jury had been instructed both on forcible and statutory rape, but did not in its verdict specify which offense it had found, the Supreme Court of Georgia interpreted the “rape” conviction as one for statutory rape — an offense that includes no element of bodily harm. Moreover, there was no jury finding of forcible rape at the penalty phase of the trial.
  Although the Georgia Supreme Court did not explain this holding, the holding itself is unambiguous. First, the Georgia court unequivocally stated:
  “The only evidence of bodily injury, to support the crime of the kidnapping with bodily injury of the older child, is the bodily injury which resulted from the rape of that child.” 241 Ga., at 52, 243 S. E. 2d, at 501. Second, after concluding that the evidence of forcible rape could supply the bodily injury element of the crime of kidnaping, the Georgia court added:
  “The state’s attempted reliance upon sodomy as constituting the bodily injury associated with the kidnapping of the older child is not ground for retrial.” Ibid., 243 S. E. 2d, at 502.
  In the present case, when the Supreme Court of Georgia ruled on petitioner’s motion for rehearing it recognized that, prior to its opinion in the case, petitioner had no notice, either in the indictment, in the instructions to the jury, or elsewhere, that the State was relying on the rape to establish the bodily injury component of aggravated kidnaping:
  “On motion for rehearing the defendant urges, among other things, that he was not on notice that evidence as to the older child’s injuries which resulted from her being raped would provide the evidence of her bodily injury to convict him of her kidnapping with bodily injury. He was on notice, however, that he was charged with forcible rape as well as kidnapping with bodily injury of the older child.
  “Motion for rehearing denied." Id., at 67, 243 S. E. 2d, at 510.
  Because the jury convicted petitioner of the same offense that it relied upon to find the statutory aggravating circumstances necessary to impose the death penalty — kidnaping with bodily injury, to wit, aggravated sodomy — the Georgia Supreme Court’s affirmance of that conviction on the basis of the bodily injury resulting from the rape is also unconstitutional under Cole v. Arkansas, 333 U. S. 196 (1948). Accordingly, under the dictates of that case, id., at 200, 202, the conviction must be reversed.
choices: involuntary confession habeas corpus plea bargaining: the constitutionality of and/or the circumstances of its exercise retroactivity (of newly announced or newly enacted constitutional or statutory rights) search and seizure (other than as pertains to vehicles or Crime Control Act) search and seizure, vehicles search and seizure, Crime Control Act contempt of court or congress self-incrimination (other than as pertains to Miranda or immunity from prosecution) Miranda warnings self-incrimination, immunity from prosecution right to counsel (cf. indigents appointment of counsel or inadequate representation) cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty) cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts) line-up discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations) double jeopardy ex post facto (state) extra-legal jury influences: miscellaneous extra-legal jury influences: prejudicial statements or evidence extra-legal jury influences: contact with jurors outside courtroom extra-legal jury influences: jury instructions (not necessarily in criminal cases) extra-legal jury influences: voir dire (not necessarily a criminal case) extra-legal jury influences: prison garb or appearance extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment) extra-legal jury influences: pretrial publicity confrontation (right to confront accuser, call and cross-examine witnesses) subconstitutional fair procedure: confession of error subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy) subconstitutional fair procedure: entrapment subconstitutional fair procedure: exhaustion of remedies subconstitutional fair procedure: fugitive from justice subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case) subconstitutional fair procedure: stay of execution subconstitutional fair procedure: timeliness subconstitutional fair procedure: miscellaneous Federal Rules of Criminal Procedure statutory construction of criminal laws: assault statutory construction of criminal laws: bank robbery statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy) statutory construction of criminal laws: escape from custody statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury) statutory construction of criminal laws: financial (other than in fraud or internal revenue) statutory construction of criminal laws: firearms statutory construction of criminal laws: fraud statutory construction of criminal laws: gambling statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951 statutory construction of criminal laws: immigration (cf. immigration and naturalization) statutory construction of criminal laws: internal revenue (cf. Federal Taxation) statutory construction of criminal laws: Mann Act and related statutes statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol statutory construction of criminal laws: obstruction of justice statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements) statutory construction of criminal laws: Travel Act, 18 USC 1952 statutory construction of criminal laws: war crimes statutory construction of criminal laws: sentencing guidelines statutory construction of criminal laws: miscellaneous jury trial (right to, as distinct from extra-legal jury influences) speedy trial miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)