In the 1904 case of Burton v. United States, the U.S. Supreme Court ruled that a defendant cannot be tried and convicted for two crimes when one crime is lesser but included in the other more serious offense. The court held that this constituted double jeopardy, which is prohibited by the Fifth Amendment to the Constitution. In this case, Burton was charged with both robbery and larceny arising from a single act of stealing money from another person's pocket without their consent or knowledge; he was subsequently convicted on both counts. However, because larceny is considered a lesser included offense within robbery (as all elements necessary to prove larceny are also required to prove robbery), his conviction for both offenses violated his constitutional protection against double jeopardy.

In the dissenting opinion for Burton v. United States, Justice Brewer argued that the defendant's conviction should be overturned because of a lack of evidence proving his guilt beyond reasonable doubt. He contended that the prosecution failed to provide substantial proof linking Burton directly to any criminal activity or conspiracy against the government. Furthermore, he criticized the majority's decision as being based on mere suspicion and conjecture rather than concrete evidence. Brewer also expressed concern over potential violations of due process rights, arguing that an individual cannot be convicted solely based on association with others who may have committed illegal acts without clear proof of personal involvement in those actions.