750
Opinion of Souter, J.
Nielsen and Caroline Nielsen during the period from October 15, 1885, to May 13, 1888, in violation of a federal antipolygamy law. See Act of Mar. 22, 1882, ch. 47, § 3, 22 Stat. 31. Nielsen served his sentence of three months' imprisonment and paid a $100 fine. He then came to trial on a second indictment charging him under another federal antipolygamy law with committing adultery with Caroline Nielsen on the day following the period described in the first indictment, May 14, 1888, based on the fact that he was married and had a lawful wife, and was not married to Caroline Nielsen. See Act of Mar. 3, 1887, ch. 397, § 3, 24 Stat. 635. Nielsen pleaded former jeopardy to the second indictment, arguing first that the true period of the cohabitation charged in the first indictment extended well beyond May 13 until the day of the indictments, September 27, 1888, and that "the offence charged in both indictments was one and the same offence and not divisible." 131 U. S., at 178. The Government argued that the two crimes were not the same because the elements of the two offenses differed.
The Nielsen Court first considered the question whether the offense of unlawful cohabitation included, in a temporal sense, the single act of adultery subsequently prosecuted. On this question, the Court first noted, following In re Snow, 120 U. S. 274 (1887), that although the indictment for cohabitation listed May 13, 1888, as the end of that offense, cohabitation is a " 'continuing offence . . . [that] can be committed but once, for the purposes of indictment or prosecution, prior to the time the prosecution is instituted.' " 131 U. S., at 186 (quoting Snow, supra, at 282). Thus, the Nielsen Court interpreted the indictment for cohabitation as covering a single continuing offense that ended on the day the indictment was handed up. See 131 U. S., at 187.
Having concluded that the offense of cohabitation was a "continuous" one, "extending over the whole period, including the time when the adultery was alleged to have been committed," id., at 187, the Court then considered the ques-
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