Cite as: 509 U. S. 688 (1993)
Opinion of the Court
ately after stating that conviction for felony murder, a "greater crime," "cannot be had without conviction of the lesser crime," the Harris Court quotes Nielsen's statement that " 'a person [who] has been tried and convicted for a crime which has various incidents included in it, . . . cannot be a second time tried for one of those incidents.' " 433 U. S., at 682-683, quoting from 131 U. S., at 188. It is clear from that context that Harris regarded "incidents included" to mean "offenses included"—a reference to defined crimes rather than to conduct.
Finally, Justice Souter misdescribes Vitale. Despite his bold assertion to the contrary, see post, at 757, Vitale unquestionably reads Harris as merely an application of the double jeopardy bar to lesser and greater included offenses.11
Justice Souter instead elevates the statement in Vitale that, on certain hypothetical facts, the petitioner would have a "substantial" "claim" of double jeopardy on a Grady-type theory, see post, at 756-757, into a holding that the petitioner would win on that theory. Post, at 757, 763. No Justice, the Vitale dissenters included, has ever construed this passage as answering, rather than simply raising, the question on which we later granted certiorari in Grady. See 447 U. S., at 426 (Stevens, J., dissenting) (in addition to finding the same-conduct claim "substantial," dissent would find it "dispositive"). See also Grady, 495 U. S., at 510 (Vitale "suggested" same-conduct test adopted in Grady).
In contrast to the above-discussed dicta relied upon by Justice Souter, there are two pre-Grady (and post-Nielsen) cases that are directly on point. In both Gavieres v. United States, 220 U. S., at 343, and Burton v. United States, 202 U. S. 344, 379-381 (1906), the Court upheld subse-11 There is, for example, no other way to read the following passage in Illinois v. Vitale, quoted by Justice Souter, post, at 757: "[In Harris] we treated a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-included offense." 447 U. S. 410, 420 (1980).
707
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