Johnson v. United States

Apr 5, 1971
5247
Versions:401 U.S. 846
91 S. Ct. 1258
28 L. Ed. 2d 523
27 A.F.T.R.2d (RIA) 1006
1971 U.S. LEXIS 62

Lead Opinion

Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

The Chief Justice took no part in the consideration or decision of this case.



Dissenting Opinion

Mr. Justice Stewart, with whom Mr. Justice Douglas joins,

dissenting.

In the petitioner’s trial on a charge of rape, the District Judge instructed the jury that it could return a verdict of guilty with the death penalty. Yet that verdict was constitutionally impermissible in light of this Court’s decision in United States v. Jackson, 390 U. S. 570. See Bailey v. United States, 132 U. S. App. D. C. 82, 86 and n. 3, 405 P. 2d 1352, 1356 and n. 3. I think the extreme prejudice arising from this erroneous instruction requires reversal of the judgment of conviction and a remand of this case for a new trial. Cf. Price v. Georgia, 398 U. S. 323, 331-332.