"criminal liability as such," and since petitioner's motion was not attributable to "prosecutorial or judicial overreaching," the court applied the rule permitting retrials after a prosecution is terminated by a defendant's request for a mistrial. Id., at 7-8, citing United States v. Dinitz, 424 U. S. 600 (1976). There being no double jeopardy bar to a new trial, the court went on to resolve the merits of the appeal in the Government's favor. It held, based on an intervening First Circuit decision," that the District Court had erred in "dismissing" the numbers theory. Accordingly, the judgment of acquittal was "vacated" and the case "remanded so that the government may try defendant on that portion of the indictment that charges a violation of § 1955 based upon numbering [sic] activities." 548 F. 2d, at 8.

We granted certiorari, 433 U. S. 907 (1977),12 limiting our review to the related issues of appealability and double jeopardy. 13 We now reverse.

11 United States v. Morrison, 531 F. 2d 1089, 1094, cert. denied, 429 U. S. 837 (1976). Morrison held a failure to cite Mass. Gen. Laws Ann., ch. 271, §7 (West 1970), in a similarly worded indictment to be harmless error. Based on Morrison, the court below concluded that the indictment was sufficient to give "notice that numbers activity was a basis upon which the government sought to establish criminal liability under § 1955." 548 F.2d, at 4.

12 The petition for certiorari was filed one day out of time. The time requirement of this Court's Rule 22 (2) is not jurisdictional, Schacht v. United States, 398 U. S. 58, 63-65 (1970), and petitioner has filed a motion, supported by affidavits, seeking waiver of this requirement. We now grant petitioner's motion.

13 The petition for certiorari presented four questions for review, the first three relating to whether the Government's appeal was authorized by statute and not barred by the Double Jeopardy Clause. The fourth question sought review of the Court of Appeals' ruling that the indictment gave sufficient notice of the Government's intent to rely on evidence of numbers betting. Our order limited the grant of certiorari to the first three questions. 433 U. S. 907 (1977). Accordingly, we must assume that the District Court erred in ruling that the indictment did not

In United States v. Wilson, 420 U. S. 332 (1975), we found that the primary purpose of the Double Jeopardy Clause was to prevent successive trials, and not Government appeals per se. Thus we held that, where an indictment is dismissed after a guilty verdict is rendered, the Double Jeopardy Clause did not bar an appeal since the verdict could simply be reinstated without a new trial if the Government were successful.14 That a new trial will follow upon a Government appeal does not necessarily forbid it, however, because in limited circumstances a second trial on the same offense is constitutionally permissible.1 Appealability in this case therefore turns on whether the new trial ordered by the court below would violate the command of the Fifth Amendment that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." 16

encompass the numbers allegation because of its failure to cite Mass. Gen. Laws Ann., ch. 271, § 7 (West 1970).

14 United States v. Jenkins, 420 U. S. 358 (1975), by contrast, held that appeal of an order dismissing an indictment after jeopardy had attached, but before verdict, was barred because a successful appeal would require "further proceedings. . . devoted to the resolution of factual issues going to the elements of the offense charged." Id., at 370. See Lee v. United States, 432 U. S. 23, 29-30 (1977).

15 A new trial is permitted, e. g., where the defendant successfully appeals his conviction, United States v. Ball, 163 U. S. 662, 672 (1896); where a mistrial is declared for a "manifest necessity," Wade v. Hunter, 336 U. S. 684 (1949); where the defendant requests a mistrial in the absence of prosecutorial or judicial overreaching, United States v. Dinitz, 424 U. S. 600 (1976); or where an indictment is dismissed at the defendant's request in circumstances functionally equivalent to a mistrial, Lee v. United States, supra. See also Jeffers v. United States, 432 U. S. 137 (1977).

16 We have on several occasions observed that the jurisdictional statute authorizing Government appeals, 18 U. S. C. § 3731 (1976 ed.), was "'intended to remove all statutory barriers"" to appeals from orders terminating prosecutions. United States v. Martin Linen Supply Co., 430 U. S. 564, 568 (1977), quoting United States v. Wilson, 420 U. S. 332, 337 (1975). We therefore turn immediately to the constitutional issues.

In deciding whether a second trial is permissible here, we must immediately confront the fact that petitioner was acquitted on the indictment. That "[a] verdict of acquittal... [may] not be reviewed... without putting [the defendant] twice in jeopardy, and thereby violating the Constitution,'" has recently been described as "the most fundamental rule in the history of double jeopardy jurisprudence." United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977), quoting United States v. Ball, 163 U. S. 662, 671 (1896). The fundamental nature of this rule is manifested by its explicit extension to situations where an acquittal is "based upon an egregiously erroneous foundation." Fong Foo v. United States, 369 U. S. 141, 143 (1962); see Green v. United States, 355 U. S. 184, 188 (1957). In Fong Foo the Court of Appeals held that the District Court had erred in various rulings and lacked power to direct a verdict of acquittal before the Government rested its case." We accepted the Court of Appeals' holding that the District Court had erred, but nevertheless found that the Double Jeopardy Clause was "violated when the Court of Appeals set aside the judgment of acquittal and directed that petitioners be tried again for the same offense." 369 U. S., at 143. Thus when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous.

The Government does not take issue with these basic principles. Indeed, it concedes that the acquittal for insufficient evidence on what it refers to as the horse-betting theory of liability is unreviewable and bars a second trial on that charge.18 The disputed question, however, is whether a retrial

17 In re United States, 286 F. 2d 556 (CA1 1961).

18 It is without constitutional significance that the court entered a judgment of acquittal rather than directing the jury to bring in a verdict of acquittal or giving it erroneous instructions that resulted in an acquittal. United States v. Martin Linen Supply Co., supra, at 567 n. 5, 573; United States v. Sisson, 399 U. S. 267, 290 (1970).

on the numbers theory of liability would be on the "same offense" as that on which petitioner has been acquitted.

The Government contends, in accordance with the reasoning of the Court of Appeals, that the numbers theory was dismissed from the count before the judgment of acquittal was entered and therefore that petitioner was not acquitted of the numbers theory. Petitioner responds that the District Court did not "dismiss" anything but rather struck evidence and acquitted petitioner on the entire count; further, assuming arguendo that there was a "dismissal" of the numbers theory, he urges that a retrial on this theory would nevertheless be barred as a second trial on the same statutory offense. We first consider whether the Court of Appeals correctly characterized the District Court's action as a "dismissal" of the numbers theory.

A

In the Government's view, the numbers theory was "dismissed" from the case as effectively as if the Government had actually charged the crime in two counts and the District Court had dismissed the numbers count. The first difficulty this argument encounters is that the Government did not in fact charge this offense in two counts. Legal consequences ordinarily flow from what has actually happened, not from what a party might have done from the vantage of hindsight. See Central Tablet Mfg. Co. v. United States, 417 U. S. 673, 690 (1974). The precise manner in which an indictment

19

19 The difficulty in allowing a defendant's rights to turn on what the Government might have done is illustrated by considering that, had the Government alleged each "theory of liability" in a separate count, the indictment would have been subject to objection on grounds of multiplicity, the charging of a single offense in separate counts. See n. 20, infra. The Government might then have been forced to elect on which count it would proceed against petitioner, United States v. Universal C. I. T. Credit Corp., 344 U. S. 218 (1952), and probably would have chosen to proceed on the numbers theory as to which its evidence was apparently stronger. In that

is drawn cannot be ignored, because an important function of the indictment is to ensure that, "in case any other proceedings are taken against [the defendant] for a similar offence, . . . the record [will] sho[w] with accuracy to what extent he may plead a former acquittal or conviction." Cochran v. United States, 157 U. S. 286, 290 (1895), quoted with approval in Russell v. United States, 369 U. S. 749, 764 (1962); Hagner v. United States, 285 U. S. 427, 431 (1932).2o With regard to the one count that was in fact charged, as to which petitioner has been at least formally acquitted, we are not persuaded that it is correct to characterize the trial court's action as a "dismissal" of a discrete portion of the count. While form is not to be exalted over substance in determining the double jeopardy consequences of a ruling terminating a prosecution, Serfass v. United States, 420 U. S. 377, 392-393 (1975); United States v. Jorn, 400 U. S. 470, 478 n. 7 (1971); United States v. Goldman, 277 U. S. 229, 236 (1928), neither is it appropriate entirely to ignore the form of order entered by the trial court, see United States v. Barber, 219 U. S, 72, 78 (1911). Here the District Court issued only two orders, one excluding certain evidence and the other entering a judgment of acquittal on the single count charged. No language in the indictment was ordered to be stricken, compare United States v. Alberti, 568 F. 2d 617, 621 (CA2 1977), nor was the indictment amended. The judgment of acquittal was entered on the entire count and found petitioner not guilty of

event, however, petitioner could not have been acquitted of the horsebetting count, and the instant problem would not have arisen.

20 The Court of Appeals erred in its apparent view that the Government should have drawn the indictment in two counts because the single count was duplicitous. 548 F. 2d, at 5 n. 4. Only a single gambling business was alleged, and hence only a single offense. See infra, at 70-71. A single offense should normally be charged in one count rather than several, even if different means of committing the offense are alleged. See Fed. Rule Crim. Proc. 7 (c) (1); Advisory Committee's Notes on Fed. Rule Crim. Proc. 7, 18 U. S. C. App., p. 1413 (1976 ed.); n. 19, supra.