In this piece, Fayetteville Observer senior editorial writing Gene Smith writes that he believes Timothy Hennis is guilty of three murders but nevertheless opposes his prosecution by court-martial.
Mr. Smith argues: “[T]here’s nothing vague or archaic about Amendment V: no one shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ Maybe you liked the process and are delighted with the outcome. Fine. But tell me, honestly, that that’s not precisely what happened to the murderer Timothy Hennis: twice in jeopardy of life and limb.”
Actually, no, it isn’t. The Fifth Amendment doesn’t refer to being twice put in jeopardy for the same act; rather, it refers to being twice put in jeopardy for the same OFFENCE. And, as the Supreme Court has indicated, violating North Carolina General Statute 14-17 isn’t the “same offence” as violating 10 U.S.C. § 918. As the Supreme Court observed in 1852:
Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both. Thus, an assault upon the marshal of the United States, and hindering him in the execution of legal process, is a high offence against the United States, for which the perpetrator is liable to punishment; and the same act may be also a gross breach of the peace of the State, a riot, assault, or a murder, and subject the same person to a punishment, under the State laws, for a misdemeanor or felony. That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other; consequently, this court has decided, in the case of Fox v. The State of Ohio, (5 How. 432,) that a State may punish the offence of uttering or passing false coin, as a cheat or fraud practised on its citizens; and, in the case of the United States v. Marigold, (9 How. 560,) that Congress, in the proper exercise of its authority, may punish the same act as an offence against the United States.