The petition for writ of certiorari is denied.
Justice REHNQUIST, with whom Justice O'CONNOR joins, dissenting.
Respondent Hamilton was tried for the crimes of rape and incest, in which he was charged with having had sexual intercourse with his 10-year- old daughter. He was found guilty on both [468 U.S. 1217 , 1218] counts and was sentenced to life imprisonment on the rape charge and 10 years on the incest charge, the sentences to be served concurrently. The Supreme Court of Kentucky affirmed his conviction for rape and his sentence of life imprisonment, but reversed his conviction for incest. 659 S.W.2d 201 (1983). That court was of the view that sentencing respondent for two different crimes based on the single act of intercourse with his daughter violated the constitutional guarantee against double jeopardy.
The Supreme Court of Kentucky believed that the closest analogy to the present case was our decision in Harris v. Oklahoma, 433 U.S. 682 (1977), in which we held that petitioner Harris, who had earlier been tried and convicted of the felony murder of a grocery clerk, could not be later tried for the armed robbery of the store which was the predicate offense for the felony-murder prosecution. In the present case, however, it is undisputed that the State defines rape as sexual intercourse with one who is less than 12 years old, Ky.Rev.Stat. 510.040(1)(b)(2) (1975), and defines incest as sexual intercourse with a member of one's family, Ky.Rev.Stat. 530.020 (1975). Thus while both offenses require the element of sexual intercourse, each requires an additional element which the other does not. Although the Kentucky Supreme Court purported to rely on our decision in Blockburger v. United States, 284 U.S. 299 (1932), its ruling is directly contrary to this language from Blockburger.
Earlier this Term, we reiterated the traditional definition of the protection of the Double Jeopardy Clause of the Fifth Amendment:
I believe that the decision of the Supreme Court of Kentucky is so obviously mistaken that it should be summarily reversed on the authority of Ohio v. Johnson, supra, and Missouri v. Hunter, supra, but at the very least I would grant the State's petition for certiorari, vacate the judgment below, and remand this case to the Supreme Court of Kentucky for reconsideration in the light of those cases.