In Ball v. United States 163 U.S. 662 (1896), three defendants were prosecuted for murder.
One was acquitted, the other two were convicted.
The judgments of the latter two were reversed because the indictments were defective for not alleging "when and where" the victim died.
The State then prosecuted all three again for the same murder.
The prosecution which concerns us is the one against the defendant who had been previously acquitted.
On the appeal of the convicted defendants, the Supreme Court held that the indictment by which they were charged was fatally defective for failing to allege either the time or place of the victim's death, and the Court therefore reversed the judgments of conviction. Another indictment was then obtained against all three defendants, each of whom raised a plea of former jeopardy. Those pleas were overruled by the trial court, and the three defendants were tried and found guilty. The matter was again appealed to the Supreme Court.
As to the defendant who had been acquitted in the first trial, the Court held that the verdict of acquittal was a bar to a second indictment for the same killing, notwithstanding the jurisdictional flaw in the indictment. As to the other two defendants, however, the Court held that a second prosecution was permissible.
The Court stated, "It is quite clear that a defendant who procures a judgment against him upon an indictment to be set aside may be tried anew upon the same indictment, or upon another indictment, for the same offense of which he had been convicted." Id. at 672.
The Supreme Court recognized the old English law that "if any person, who is indicted for an offence, shall on his trial be acquitted upon the ground of a variance between the indictment and the proof, or upon any exception to the form or to the substance of the indictment, he may be arraigned again on a new indictment, and may be tried and convicted for the same offence, notwithstanding such former acquittal." Id. at 669.
But the Court explicitly rejected this doctrine as being "unsatisfactory in the grounds on which it proceeds, as well as unjust in its operation upon those accused of crime." Id.
The Court emphasized that the Fifth Amendment's "prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial." Id.
In Ball, the first indictment did not allege the "where and when" of the murder, and the second indictment did. This did not create a new offense.
There was only one offense in Ball - the murder - regardless of the particulars of the second indictment as compared with the first.