752
Opinion of Souter, J.
187. (The second offense charged in both Morey and the case before the Court in Nielsen was adultery, which, of course, did require an act of sexual intercourse.) But even on the assumption that the continuous crime in Morey necessarily did imply sexual intercourse, rendering the cases indistinguishable on their facts, the Nielsen Court indicated that it would not follow the holding in Morey. To the Nielsen Court, it was "very clear that where, as in this case, a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence." 131 U. S., at 188.
By this last statement, the Court rejected, in a successive prosecution case, the double jeopardy test set out in Morey, which we later adopted in Blockburger; instead of agreeing with Morey that " '[t]he test is not, whether the defendant has already been tried for the same act,' " the Court concluded that a defendant "cannot be a second time tried" for a single act included as one of the "various incidents" of a continuous crime for which he has already been convicted.5 131 U. S., at 188.
The Court then went on to address the contention that adultery, as opposed to sexual intercourse, is not an act included in the continuing offense of cohabitation, because
5 Citing dictionary definitions, the majority claims that "incident," as used in this passage, "obviously" means "element." Ante, at 705, n. 10. This explanation does not make sense, for a defendant is not "tried for" an "element"; a defendant may be "tried for" a crime, such as adultery, that contains certain elements, or may be "tried for" certain acts. The immediate context of this passage from Nielsen indicates that these latter definitions of "incident" are intended. See, e. g., 131 U. S., at 188 (" 'tried for the same act' "). The point is nailed down by the Court's discussion of intercourse as an "incident" of cohabitation, id., at 189, after having indicated that intercourse need not be pleaded or proven under a cohabitation indictment, id., at 187; if "incident" did mean "element," pleading and proof of intercourse would, of course, have been required. "Incident" here clearly means "act."
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