This section contains the nature of the case and procedural background.

Benton (D) was tried for burglary and larceny. D was convicted of burglary and found not guilty of larceny. Both the juries, in this case, had been selected under an invalid state law. D was given the option of demanding re-indictment and retrial or accepting the results of the first trial. D chose retrial. A new indictment and new trial followed for larceny and burglary. D moved to have the larceny charge set aside because of double jeopardy. D was convicted of both charges in the second trial.

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