ON APPELLANT’S MOTION FOR REHEARING EN BANC AND MOTION FOR REHEARING
PEEPLES, Justice.The opinion of this Court issued April 19, 1989, is withdrawn, and this opinion is substituted.
Appellant Williams contends that the fifth amendment’s double jeopardy clause and its Texas counterpart bar an indictment for attempted capital murder because he was earlier held in contempt of court and punished for the same episode, which violated a civil injunction against physical contact or bodily injury. The trial court denied his request for a writ of habeas corpus, and he appeals.
The essential facts are not disputed. In a civil lawsuit Thomas Williams was enjoined in March of 1987 from “causing or threatening to cause physical contact or bodily injury to the Defendants [Robert and Robbie Buffington].” On June 18, 1987, Williams shot both Buffingtons with a shotgun, and on November 24, 1987 he was held in contempt of court for causing bodily injury in violation of the March 1987 order. The district attorney’s office became aware of the contempt proceedings after the judge had ruled from the bench on November 24 but before he signed a written order of contempt and commitment on January 25, 1988, sentencing Williams to 30 days’ confinement, which he has served. On January 6, 1988, Williams was indicted on two counts of attempted capital murder of the Buffingtons based upon the shooting incident.
Williams sought a writ of habeas corpus in district court, asking that the indictment be dismissed because the contempt adjudication and sentence should bar the criminal prosecution under double jeopardy principles.1 He is entitled to appellate review of his jeopardy plea in this habeas corpus proceeding prior to undergoing the *814trial that he contends would expose him to double jeopardy. Ex parte Rathmell, 717 S.W.2d 33, 34 (Tex.Crim.App.1986); Ex parte Robinson, 641 S.W.2d 552, 553-54 (Tex.Crim.App.1982). For the reasons set forth below, we affirm the denial of Williams’ request for a writ of habeas corpus and allow the prosecution to proceed.
Williams relies on Ex parte Englutt, 619 S.W.2d 279 (Tex.Civ.App. — Tex-arkana 1981, no writ), and Ex parte Brown, 574 S.W.2d 618 (Tex.Civ.App.— Waco 1978, no writ). Both of those cases hold that the double jeopardy clause bars a contempt proceeding after the State has already prosecuted the respondent and obtained a criminal conviction for the same conduct.2 The present appeal involves the reverse sequence; here a contempt conviction preceded the State’s criminal case. That a private litigant brought the first case is an important difference between the present appeal and Englutt and Brown. If a contempt action pursued by a private litigant will bar a later criminal prosecution brought by the State, one of two things will happen: (1) private citizens who pursue motions for contempt will thereby waive society’s right, acting through the district attorney, to enforce the State’s criminal statutes involving the incident; or (2) judges and private litigants might hesitate to enforce court orders by contempt, at least in cases of violence, for fear of barring later criminal cases.3
The statutes of Texas certainly do not give private litigants this kind of power to abort criminal cases. Only the district at-tomey is given the authority to represent the State in criminal cases in district court. TEX.CODE CRIM.PROC.ANN. art. 2.01 (Vernon Supp.1989). Moreover, only “the attorney representing the State” — that is, the district attorney and not a private citizen — may dismiss felony criminal prosecutions. Id. art. 32.02.
We question whether a private litigant should be able to waive a State’s right to prosecute a crime when even separate governmental entities do not have that power. A criminal conviction by one governmental entity does not waive a different sovereign’s right to prosecute the same conduct. See Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (Georgia murder conviction does not bar Alabama from bringing capital murder charge based on same homicide); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) (state-federal); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (federal-state); United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) (Indian tribal conviction does not bar federal prosecution of same conduct); cf. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) (because city and state are not separate sovereignties, both cannot prosecute same offense).
In Wheeler, a unanimous Supreme Court stated that “undesirable consequences” would result from imposing a double jeopardy bar to successive prosecutions by different sovereignties: “Prosecution by one *815sovereign for a relatively minor offense might bar prosecution by the other for a much graver one, thus effectively depriving the latter of the right to enforce its own laws.” 435 U.S. at 318, 98 S.Ct. at 1083.
We believe that Brown and Englutt do not apply to the present case because the State has not yet prosecuted Williams for the shooting incident. As the Supreme Court has said in a different context, to hold otherwise “would deny the State its right to one full and fair opportunity to convict those who have violated its laws.” Ohio v. Johnson, 467 U.S. 493, 502, 104 S.Ct. 2536, 2542, 81 L.Ed.2d 425 (1984). See also, Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978) (“prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial”).
In addition, we decline to follow Englutt and Brown because they rest on a palpable misreading of Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), and because they fail to consider and apply settled double jeopardy principles. In Men-na the defendant, who had been held in contempt of court for refusal to testify to a grand jury, was later indicted for the offense of refusing to testify before a grand jury. He pleaded guilty to the criminal offense, and then appealed his conviction on double jeopardy grounds. The state courts affirmed his conviction by refusing to consider his jeopardy contention on the sole ground that his guilty plea had waived it. The Supreme Court disagreed with the waiver ruling, reversed, and remanded with instructions to consider Menna’s double jeopardy claim, “a claim,” said the Court, “on which we express no view.” 423 U.S. at 62, 96 S.Ct. at 242. Although Justices Brennan and Marshall, concurring, would have sustained Menna’s double jeopardy argument, seven members of the court did not. To say the least, under these circumstances, Menna certainly does not announce a general rule that a criminal prosecution bars all subsequent contempt proceedings arising from the same incident, as Englutt and Brown held.
The Court’s opinion in Menna does state in a footnote that Menna’s “double jeopardy claim is a strong one,” suggesting that the contempt holding against him was “for the same crime as the one charged in the instant indictment.” 423 U.S. at 62 n. 1, 96 S.Ct. at 242 n. 1 (emphasis added). Menna was indicted for refusal to answer questions before a grand jury, having been held in contempt for failure to testify before the grand jury, precisely the same offense. Nevertheless, seven members expressed no view on the double jeopardy contention.4
After diligent research we have not found a single reported decision from any state or federal court in this country, with the exceptions of Englutt and Brown, that has cited Menna for the proposition that a contempt ruling bars a subsequent criminal proceeding, or vice versa. We respectfully submit that Englutt and Brown mistakenly accepted the Brennan-Marshall view on this important double jeopardy issue, even though the remaining seven members of the Menna court considered it an open question and went out of their way to say so.5
*816Most of the other jurisdictions that have considered this question have concluded that a contempt conviction does not bar a later criminal prosecution. See generally Annot, 26 A.L.R.4th 950 (1983). Some courts have held that a criminal contempt ruling concerning conduct in open court does not bar a subsequent criminal prosecution concerning the same conduct. See, e.g., United States v. Rollerson, 449 F.2d 1000 (D.C.Cir.1971) (contempt sentence for assaulting prosecutor during trial did not bar later assault prosecution); United States v. Mirra, 220 F.Supp. 361 (S.D.N.Y.1963) (contempt sentence for assaulting prosecutor during trial did not bar later assault prosecution); State v. Warren, 186 N.J.Super. 35, 451 A.2d 197 (1982) (summary contempt ruling for failure to testify before grand jury did not bar criminal charge of hindering prosecution); Maples v. State, 565 S.W.2d 202 (Tenn.1978) (contempt fine for false testimony did not bar prosecution for perjury).
Several courts have held that constructive contempt — based upon acts committed outside the court’s presence that violated a court order — does not bar a later criminal prosecution. See, e.g., People v. Matheson, 671 P.2d 968 (Colo.App.1983) (contempt sentence for violating order that restrained husband from going near wife’s residence did not bar criminal prosecution for sexual assault during same incident); State v. Newell, 532 So.2d 1114 (Fla.App.1988) (contempt conviction for damaging spouse’s car did not bar criminal mischief prosecution based upon same act);6 People v. Totten, 118 Ill.2d 124, 113 Ill.Dec. 47, 514 N.E.2d 959 (1987) (contempt for violating protective order did not bar prosecution for aggravated battery; overruling People v. Gray, 69 Ill.2d 44, 12 IlLDec. 886, 370 N.E.2d 797 (1977)); Commonwealth v. Gallarelli, 372 Mass. 573, 362 N.E.2d 923 (1977) (contempt of court for jury tampering did not bar prosecution for conspiracy to influence juror); People v. McCartney, 141 Mich.App. 591, 367 N.W.2d 865 (1985) (contempt for violation of probate court orders did not bar prosecution of trustee for embezzlement); State v. Kimbler, 31 Ohio App.3d 147, 509 N.E.2d 99 (1986) (contempt for violating visitation order did not bar criminal prosecution for child stealing); Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984) (contempt for spouse abuse did not bar prosecution for simple assault, criminal trespass, and rape), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985); State v. Sammons, 656 S.W.2d 862 (Tenn.Crim.App.1982) (contempt for violating visitation order did not bar kidnapping prosecution).
A few jurisdictions have held that the double jeopardy clause bars the later criminal proceeding. See, e.g., United States v. Haggerty, 528 F.Supp. 1286, 1295-1300 (D.Colo.1981) (contempt conviction of air traffic controller for violating restraining order against strike barred subsequent prosecution for striking against United States in violation of federal law); People v. Lombardo, 50 Cal.App.3d 849, 123 Cal. Rptr. 755 (1975) (contempt conviction for refusal to testify before grand jury barred criminal prosecution for same offense); State v. Hope, 449 So.2d 633 (La.App.1984) (contempt of court for violation of child visitation order barred later kidnapping charge); People v. Colombo, 31 N.Y.2d 947, 341 N.Y.S.2d 97, 293 N.E.2d 247 (1972) (contempt conviction for refusal to testify before grand jury barred criminal prosecution for refusal to obey court order to testify, where both required identical proof). See also State v. Thompson, 294 Or. 528, 659 P.2d 383 (1983) (discussing double jeopardy clause but apparently basing decision on statute that forbids separate prosecutions for multiple offenses arising from same episode if appropriate prosecutor knew of the offenses when first case was commenced).
Our review of the double jeopardy principles established by the Supreme Court and *817the Court of Criminal Appeals convinces us that the better-reasoned cases are those that hold there is no double jeopardy bar.7 Decisions such as Garrett v. United States, 471 U.S. 773, 778-79, 786, 105 S.Ct. 2407, 2411, 2415, 85 L.Ed.2d 764 (1985), Ex parte Peterson, 738 S.W.2d 688, 689-91 (Tex.Crim.App.1987), and May v. State, 726 S.W.2d 573, 574-76 (Tex.Crim.App.1987), set forth a two-step inquiry:
1. Initially the court must determine whether the legislature intended to create two separate offenses, both of which could be punished.
2. If it did, the court must next decide whether the second prosecution is barred by the double jeopardy clause.
On the question of legislative intent, it cannot be seriously argued that the Texas legislature meant for contempt proceedings to bar attempted murder indictments. Nothing in the wording or background of TEX.PENAL CODE ANN. § 19.03 (Vernon 1989) (capital murder) or TEX.GOVT CODE ANN. § 21.002 (Vernon 1988) (contempt) suggests that it did. Pursuant to Garrett, 471 U.S. at 778-79, 105 S.Ct. at 2411, May, 726 S.W.2d at 574-76, and Peterson, 738 S.W.2d at 689-90, we apply the well-settled analysis of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which has been reaffirmed repeatedly by the Supreme Court. The Blockburger test is a rule of statutory construction. Missouri v. Hunter, 459 U.S. 359, 366-69, 103 S.Ct. 673, 681, 74 L.Ed.2d 535 (1983). Under Blockburger, a court must determine whether each offense requires proof of a fact that the other does not. If so, they are not considered the “same offense” for double jeopardy purposes. The court focuses on the elements of the two offenses, not the evidence actually presented at trial. Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980). The Blockburger test “emphasizes the elements of the two crimes. ‘If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes_Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225-2226, 53 L.Ed.2d 187 (1977) (quoting Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975)).
In view of these principles, it is obvious that the contempt case does not bar the criminal prosecution. The present attempted capital murder indictment will require proof that Williams attempted to cause the death of both Buffingtons. TEX.PENAL CODE ANN. § 19.03(a)(6) (Vernon 1989). That element of the criminal case was not an element of the contempt proceeding which involved the causing of physical contact or bodily injury in violation of a court order. Conversely, the contempt case required proof that a written court order existed, Ex parte Wilkins, 665 S.W.2d 760 (Tex.1984), and that Williams had notice of it. Ex parte Conway, 419 S.W.2d 827, 828 (Tex.1967). The criminal case will not require such proof. Thus the Blockburger analysis, and a comparison of the two statutes involved, leads to but one conclusion: the Texas legislature did not consider contempt of court and attempted capital murder to be the “same offense” for double jeopardy purposes, and did not intend that a contempt adjudication would bar the murder case.
Nevertheless the constitution may prevent some prosecutions that a state would be willing to allow. As a general rule, the double jeopardy clause bars “successive prosecutions” for a lesser included offense when the defendant has already been convicted of the greater offense. Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); May v. State, 726 S.W.2d at 574-77. It also bars prosecution for the greater offense when he has previously been convicted of a lesser included offense. Brown v. Ohio, 432 U.S. at 168-*81869, 97 S.Ct. at 2226-27; Ex parte Peterson, 738 S.W.2d at 690-91. But contempt of court is clearly not a lesser included offense of attempted capital murder.8 Under Illinois v. Vitale, 447 U.S. at 417-21, 100 S.Ct. at 2265-67, if each offense can be established without also proving the other — considering the elements of the offenses and not the actual proof — they are not the “same offense” within the meaning of the double jeopardy clause.9 This case would present an entirely different question, for example, if the State had prosecuted Williams for simple assault and then pursued the present indictment.
The purposes underlying the double jeopardy clause prohibition against successive prosecutions10 simply are not implicated in this case because the State has not yet prosecuted Williams for anything. The clause manifests a “willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws.” United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (emphasis added). Here there is no effort by prosecutors to obtain more than one punishment, see Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. at 2225, or to bring repeated prosecutions until they obtain a conviction. See Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).11 This *819case does not involve “the principles of finality and prevention of prosecutorial overreaching.... [N]or has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial.” Ohio v. Johnson, 467 U.S. 493, 501, 104 S.Ct. 2536, 2541-42, 81 L.Ed.2d 425 (1984). To permit the present indictment to proceed will not afford the prosecution “another opportunity to supply evidence which it failed to muster in the first proceeding.” United States v. DiFrancesco, 449 U.S. 117, 128, 101 S.Ct. 426, 432, 66 L.Ed.2d 328 (1980), quoting Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978). Here there have been no “repeated prosecutorial sallies [that] would unfairly burden the defendant and create a risk of conviction through sheer governmental perseverance.” Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2217, 72 L.Ed.2d 652 (1982).
In summary, we hold that the legislature did not intend for contempt of court convictions to bar prosecutions for attempted murder involving the same incident. Nor does the constitution bar the present indictment. The lesser included-greater offense cases do not apply because contempt of court is not a lesser included offense of attempted murder. It is of no consequence that the contempt proceeding and the pending murder case arose from the same incident, because the “same episode” test has never been accepted as a matter of federal or Texas constitutional law.
For the reasons stated, we hold that the trial court correctly denied the request for a writ of habeas corpus and correctly refused to dismiss the indictment.
The judgment is affirmed.
. The Fifth Amendment provides "... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb_" U.S. CONST, amend. V. Article I, § 14 of the Texas Const, provides as follows:
§ 14. Double Jeopardy
Sea 14. No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.
TEX.CONST. art. I, § 14.
Concerning the Fifth Amendment, the Supreme Court has said:
That guarantee has been said to consist of three separate constitutional protections. [1] It protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense.
North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (citations omitted). See also Ex parte Peterson, 738 S.W.2d 688, 689 (Tex.Crim.App.1987). Only the second protection is involved in this appeal.
. Williams' contempt proceeding is considered criminal (or punitive) and not civil (or coercive) because he was imprisoned as punishment for a completed act and not to coerce him to perform some act in the future. See Ex parte Werblud, 536 S.W.2d 542, 545-46 (Tex.1976).
. We share the similar concerns voiced by Justice Ryan in dissent in People v. Gray, 69 Ill.2d 44, 12 Ill.Dec. 886, 892, 370 N.E.2d 797, 803 (1977) (Ryan, J., dissenting), which were quoted with approval in Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363, 369 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985):
The necessity of criminal contempt as a tool for deterring abuse of the judiciary demands that a judge not be required to consider the consequences of foreclosing subsequent criminal prosecutions. As the People note in their brief, the majority holding, in effect, gives the trial judge the power to decide whether a contumacious party will be charged with a criminal offense, thus usurping the function of the State's Attorney. It might also be noted that in most cases of a violation of a court order, the criminal contempt is really initiated or prosecuted by the aggrieved party; the contempt is not prosecuted in the name of the People and the State's Attorney is not even notified or aware of the proceedings.
The Illinois Supreme Court overruled Gray in People v. Totten, 118 Ill.2d 124, 113 Ill.Dec. 47, 514 N.E.2d 959 (1987).
. The dissent is correct in saying the Supreme Court in Menna avoided the constitutional question. We simply do not understand how a case that avoids a constitutional question can be cited as having decided the very issue that was avoided.
On remand, the New York Court of Appeals, in a two-paragraph memorandum opinion that did not discuss the issues, concluded (with the State’s concurrence) that Menna’s jeopardy plea should be sustained. The court did not suggest in any way that as a matter of state or federal law contempt convictions bar all criminal prosecutions arising from the same incident. People v. Menna, 38 N.Y.2d 850, 382 N.Y.S.2d 56, 345 N.E.2d 599 (1976).
. In Ashe v. Swenson, 397 U.S. 436, 449-60, 90 S.Ct. 1189, 1197-1202, 25 L.Ed.2d 469 (1970), Brown v. Ohio, 432 U.S. 161, 170, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977), and other cases, Justices Brennan and Marshall have urged a "same transaction” or “same episode” test instead of a “same evidence” test. But that view has never commanded a majority of the Court. See Garrett v. United States, 471 U.S. 773, 790, 105 S.Ct. 2407, 2417, 85 L.Ed.2d 764 (1985) ("We have steadfastly refused to adopt the ‘single transaction’ view of the Double Jeopardy Clause.”); Albernaz v. United States, 450 U.S. 333, 344 n. 3, 101 S.Ct. 1137, 1145 n. 3, 67 L.Ed.2d 275 (1981) ("It is well settled that a single transaction can give rise to distinct of*816fenses under separate statutes without violating the Double Jeopardy Clause").
. In Newell the Florida court reconsidered and decided to “recede" from its earlier decision in Yarbro v. State, 402 So.2d 599, 26 A.L.R. 4th 945 (Fla.App.1981), which had held that a contempt conviction bars a later criminal prosecution.
. The State relies on Ex parte Allison, 99 Tex. 455, 90 S.W. 870 (1906), and Ex parte Looper, 61 Tex.Crim. 129, 134 S.W. 345 (1910). Allison and Looper do support the State’s position, but we prefer not to rest our decision on them because the law of double jeopardy has undergone such great change since they were decided.
. The Code of Criminal Procedure defines a lesser included offense as follows:
An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included of-
TEX.CODE CRIM.PROC.ANN. art. 37.09 (Vernon 1981).
. We agree with the dissent that the Blockburger test is not the sole standard for determining when two offenses are the "same” under the double jeopardy clause. But it does not follow, and the cases have not held, that a second prosecution is barred simply because it involves relitigation of factual issues resolved in the first case. A fair reading of Brown v. Ohio, 432 U.S. at 166-68 n. 6, 97 S.Ct. at 2225-26 n. 6, Ex parte Peterson, and May v. State, yields these two well-settled principles: First, the State may not prosecute a defendant for a lesser included offense after it has prosecuted him for the greater offense, and vice versa. Second, in certain unusual fact situations a second prosecution will be barred even though each offense requires different proof. See, e.g., Ashe v. Swenson, supra, note 5, (double jeopardy guarantee includes collateral estoppel principles); Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889) (conviction for unlawful cohabitation, which occurred from October 15, 1885 until May 13, 1888, barred later prosecution for adultery committed on May 14, 1988; conviction of continuing greater crime bars prosecution for lesser one). Nielson expressly states the "familiar learning” that “a conviction or an acquittal of a greater crime is a bar to a subsequent prosecution for a lesser one.” 131 U.S. at 189, 9 S.Ct. at 676. Recently the court has characterized Nielsen as a greater offense-lesser included offense case. Illinois v. Vitale, 447 U.S. at 421, 100 S.Ct. at 2267; Brown v. Ohio, 432 U.S. at 168, 97 S.Ct. at 2226-27.
In light of these authorities, we cannot accept the dissent’s argument that May and Peterson prevent the State from litigating the same conduct that was punished in the contempt case. The Court of Criminal Appeals in Peterson squarely rejected that view when it confirmed the rule set forth in Vitale: “If the State is able to prove (the second offense] without also proving [the first offense, for which the defendant has already been convicted], a successive prosecution would not be for the ‘same offense’ within the meaning of the Double Jeopardy Clause.” 738 S.W.2d at 691. Accord, Illinois v. Vitale, 447 U.S. at 417-21, 100 S.Ct. at 2265-67. It bears repeating that the courts have not accepted the Brennan-Marshall “one episode-one offense” view. See note 5 supra.
. This case involves the second double jeopardy protection (against "second prosecutions”) and not the first and third protections (against retrial after acquittal and multiple punishments). See note 1, supra.
. In Green the Court gave the following oft-quoted reason for the double jeopardy clause:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
*819355 U.S. at 187-88, 78 S.Ct. at 223-24 (emphasis added).