Cite as: 509 U. S. 688 (1993)
Opinion of White, J.
stems, I believe, from a "hypertechnical and archaic approach," Ashe v. Swenson, 397 U. S. 436, 444 (1970).
"Archaic" might not quite be the word, for even as far back as 1907 the Court appeared to hold a more pragmatic view. Defendant's court-martial in Grafton was authorized under the 62d Article of War, pursuant to which Congress granted military courts the power to try "officers and soldiers" in time of peace "for any offense, not capital, which the civil law declares to be a crime against the public." 206 U. S., at 341-342, 348, 351. Grafton faced the following charge: " 'In that Private Homer E. Grafton . . . being a sentry on post, did unlawfully, willfully, and feloniously kill Florentino Castro, a Philippino . . . [and] Felix Villanueva, a Philippino.' " Id., at 341. He was acquitted. Id., at 342. Some three months later, Grafton was prosecuted in a civil criminal court. He was charged with the crime of "assassination," defined as a killing accompanied by any of the following: "(1) With treachery; (2) For price or promise of reward; (3) By means of flood, fire, or poison; (4) With deliberate premeditation; (5) With vindictiveness, by deliberately and inhumanly increasing the suffering of the person attacked." Id., at 343. Grafton ultimately was found guilty of homicide, a lesser included offense. Id., at 344.
To convict Grafton in the first proceeding, then, it had to be established that (1) he was an officer or a soldier, and (2) he unlawfully killed. In the civil tribunal, the prosecution was required to prove (1) the killing, and (2) some further element, as specified. Had Grafton been tried in 1993 rather than 1907, I suppose that an inflexible Blockburger test, which asks whether "each provision requires proof of a fact the other does not," 284 U. S., at 304, would uncover no double jeopardy problem. At the time, though, the Court looked at matters differently: Both trials being for the same killing, and "[t]he identity of the offenses [being] determined,
which his client is entitled. But to place a defendant before such a choice hardly strikes me as a satisfactory resolution.
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