Jordan v. Warden
265 A.2d 568
Md. Ct. Spec. App.
1970
Check Treatment
Thompson, J.,

delivered the opinion of the Court.

Daniel Jordan applies for leave to appeal from a denial of relief prayed in his second post conviction petition.

On March 4, 1966, applicant’s original conviction for murder in the second degree and 18 year sentence was voided at his election under Schowgurow v. State, 240 *486 Md. 121, 213 A. 2d 475. He was later reindicted and on October 31, 1966, in the Criminal Court of Baltimore, he was reconvicted of murder in'the second degree and was sentenced to a term of 15 years. This conviction was affirmed by this Court in Jordan v. State, 2 Md. App. 415, 234 A. 2d 783. On March 27, 1969, this Court, in an unreported opinion, denied his application for leave to appeal from a denial of relief prayed in his first post conviction petition.'

Jordan now contends:

(1) That petitioner’s constitutional rights were violated when he was indicted without members of his own race on the Grand Jury.
(2) That the law of Maryland which requires all candidates for public office, including the judge and the jury, to take a religious oath, is unconstitutional.
(3) That, because of this religious oath, the-judge and jury had no legal right to pass judgment in this case.
(4) That his constitutional rights were violated when he was indicted twice for the same crime.
(5) That a statement made by petitioner to the police before being advised of his constitutional rights was erroneously admitted into evidence.

The first contention was found by the hearing judge to be factually incorrect, and we are given no reason, and see no reason, to disturb the finding. The second and third contentions were considered and rejected by this Court in Hartley v. State, 4 Md. App. 450, 243 A. 2d 665, insofar as they relate to the disqualification of judges. Insofar as they relate to juries, the record shows the applicant was reindicted and retried after juries were selected in accordance with Schowgurow v. State, supra. The fifth contention was raised in Jordan’s first post conviction petition and became finally litigated when this Court denied the application for leave to appeal therefrom, Md. Code, Art. 27, § 645A (b).

Jordan’s fourth contention requires more discussion. In Austin v. Director, 237 Md. 314, 206 A. 2d 145 the Court *487 of Appeals held double jeopardy was not grounds for post conviction relief. See also Nixon v. Director, 1 Md. App. 14, 226 A. 2d 352 and Williams v. Director, 4 Md. App. 721, 245 A. 2d 105. When the Supreme Court in Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 for the first time held double jeopardy to be applicable to the states under the fourteenth amendment to the Constitution of the United States, the question of double jeopardy was elevated to a federal constitutional question and is now a ground for post conviction relief, if not previously waived or finally litigated. 1 See Jackson v. Warden, 236 Md. 634, 204 A. 2d 566.

In Benton v. Maryland, supra, the Court held an acquittal under a voidable indictment precluded a subsequent prosecution for the same offense. This is not to say, however, that a conviction under a voidable indictment bars a subsequent prosecution under a second indictment after the first conviction has been declared void at the election of the accused. We so held and fully discussed the question in Presley v. State, 6 Md. App. 419, 251 A. 2d 622, Hartley v. State, supra and Gee v. State, 2 Md. App. 61, 233 A. 2d 336.

Application denied.

Notes

1

. The retroactivity of Benton v. Maryland, supra, may be open to some slight question. Compare Waller v. Florida, 7 CrL 3018, n.2 and Ashe v. Swenson, 7 CrL 3020, n. 1. It appears the issue will be most likely resolved in favor of retroactivity in Price v. Georgia, No. 269 October Term, 1969, argued April 27, 1970. See Md. Code, Art. 27; § 645A (d) as to availability of retroactive constitutional decisions as grounds for post conviction relief.