considered prior to 1937 was the Supreme
Court able to discern the existence of any factual situation amounting
to double jeopardy, and accordingly it was never confronted with the
necessity of determining whether the guarantee that no person be put
twice in jeopardy of life or limb, expressed in the Fifth Amendment as a
limitation against the Federal Government, had been absorbed in the due
process clause of the Fourteenth Amendment. Thus, in Dreyer _v._
Illinois,[975] after declaring that a retrial after discharge of a hung
jury did not subject a defendant to double jeopardy, the Court concluded
as follows: If "* * * what was said in United States _v._ Perez [(9
Wheat. 579 (1824)) embracing a similar set of facts], * * * is adverse
to the contention of the accused that he was put twice in jeopardy,"
then "we need not now express an opinion" as to whether the Fourteenth
Amendment embraces the guarantee against double jeopardy. Similarly, in
Murphy _v._ Massachusetts[976] and Shoener _v._ Pennsylvania[977] the
Court held that where the original conviction of the prisoner was, on
appeal, construed by the State tribunal to be legally defective and
therefore a nullity, a subsequent trial, conviction, and sentence of the
accused deprived him of no constitutional right, notwithstanding the
fact that under the invalidated original conviction, the defendant had
spent time in prison. In both instances the Court found it unnecessary
to discuss "any question of a federal nature." With like dispatch, "the
propriety of inflicting severer punishment upon old offenders" was
sustained on the ground that they were not being "punished * * * [a]
second time for the earlier offense, but [that] the repetition of
criminal conduct aggravates their guilt and justifies heavier penalties
when they are again convicted."[978]

In Palko _v._ Connecticut,[979] however, the Court appeared to have
been presented with issues, the disposition of which would preclude
further avoidance of a decision as to whether the double jeopardy
provision of the Fifth Amendment had become operable as a restraint upon
the States by reason of its incorporation into the due process clause of
the Fourteenth Amendment. By the terms of the Connecticut statute at
issue, the State was privileged to appeal any question of law arising
out of a criminal prosecution, and did appeal a conviction of second
degree murder and sentence to life imprisonment of one Palko, who had
been