 The errors perceived could have only contributed to the success of the prosecution in obtaining a second degree murder conviction, not to the failure of the state to obtain a verdict of guilty of murder in the first degree.  To permit the state to reprosecute the accused for the greater charge in these circumstances is to provide the prosecution with an opportunity 'to do better a second time,' not because it had been prejudiced by substantial legal error the first time, but because the accused had been prejudiced by substantial legal errors and because these errors had been perceived on appeal.


33
Where, as here, the errors perceived on appeal contributed to the success of the prosecution in obtaining the second degree murder conviction, and could have hadthird trial.  In the second trial he was found guilty of first degree murder and sentenced to death, but that judgment of conviction was reversed by the New York Court of Appeals.  Neither this first reprosecution for first degree murder, nor the fact that it resulted in a conviction for that degree of murder, nor the fact that the conviction was successfully appealed by the accused removed the constitutional restrictions against reprosecuting him for first degree murder following the completion of the first trial.  What was forbidden after the first trial remained so for the third trial, notwithstanding the intervention of the second trial and that appeal.


41
If the third trial had resulted in a verdict of guilty of first degree murder and Hetenyi were presently