Thus, the exception would only apply in an autrefois convict factual scenario where the accused was convicted on a lesser offense but the victim dies after the trial and the prosecution seeks to try the accused for the greater offense.
Since Diaz operates as an exception to an autrefois convict scenario, the original assault conviction does not bar subsequent prosecution.
Under this rationale, Diaz only exists as an exception to an autrefois convict scenario.
Finally, looking at Diaz as an exception to autrefois convict makes more sense from a policy perspective because the original holding was not trying to create an exception to a double jeopardy autrefois acquit scenario.
33) Sigler, supra note 12, at 20; 2 Matthew Hale, The History of the Pleas of the Crown *248 (stating that "But autrefois convict or autrefois acquit by verdict .
202) Citing Lord Devlin's opinion in Connelly, the lower court denied the landlord's motion to dismiss the manslaughter charge on the basis of autrefois convict
75) With no pertinent statutes or constitutional provisions of their own, all of the other colonies/states relied instead on the more limited common law pleas of autrefois acquit and autrefois convict
52) And so the Double Jeopardy Clause does not, for example, give Robert the right to plead autrefois convict to a first-degree murder charge merely because he has already been convicted of a robbery that grew out of the same set of events.
Whereas the formal rules of the Double Jeopardy Clause apply equally to autrefois acquit and autrefois convict, the collateral estoppel principle aids a defendant who is in effect acquitted on some contested issue.
Unless judges sharply distinguish between the core double jeopardy "rules"--autrefois acquit de meme felonie and autrefois convict de meme felonie--and various penumbral double jeopardy "principles," there is a real risk that the penumbra will be applied too rigidly (Brown, Corbin, and Dixon, for example) and/or that the core will be applied too mushily (the curtailment effect).
Before this event, of course, there is simply no criminal charge on the table, and thus no way to decide whether an offense is la meme felonie as the offense for which a person was autrefois convict or acquit.
160) The case introduces the problem of defining a punishable event: the defendant did engage in two acts, opening the door and selling the porter,(161) but to define acts according to the elements of the statute would make the statute a mere restatement of the autrefois convict
plea: all acts or omissions would be different if they were defined as different elements of a crime.