 In three opinions , the Marshall Court considered questions of double jeopardy , without ever clearly referring to the Double Jeopardy Clause of the Fifth Amendment . First , in United States v. Perez ( 1824 ) , the Court held that there was no bar to a second prosecution after a mistrial was declared for " manifest necessity . " ( Justice Story authored the opinion of the Court , espousing the position taken by Justice Thompson below . ) Next , in United States v. Wilson ( 1833 ) , the Court held that the protection of prior jeopardy extended to lesser included offenses ; " [ a ] fter the judgment [ of conviction ] , no subsequent prosecution could be maintained for the same offence , nor for any part of it . " But , Wilson held that , in order to receive the protection of a pardon , a defendant must accept the pardon and affirmatively plead its existence in court . And , finally , in United States v. Randenbush ( 1834 ) — where the defendant had first been acquitted of counterfeiting one note , and then convicted of counterfeiting a different note ( which had been introduced as evidence at the first trial ) — the Court held that double jeopardy did not run from the use of the same evidence for " entirely a distinct offence . " 
