disapproving adoption of “same transaction” rule and concluding that court was not “inclined as a matter of policy to modify [its] approval of the ‘same evidence’ rule as first clearly enunciated in Morey”
How later courts described this case
- disapproving adoption of “same transaction” rule and concluding that court was not “inclined as a matter of policy to modify [its] approval of the ‘same evidence’ rule as first clearly enunciated in Morey”
- “same evidence test,” which permits conviction under two statutes based on evidence of single act, does not offend prohibition against double jeopardy where each statute requires proof of additional fact which other does not
- discussing separate prosecutions of conspiracy and substantive act
- contempt finding not a bar to prosecution for interference with administration of justice and conspiracy to influence a jury when charges arose from the same incident
Written by the judges who cited it.
The opinion
Kaplan, J.
(concurring, with whom Liacos, J., joins). On the question what offenses should be joined for pur *581 poses of trial, the “same evidence” doctrine works out as an arid and inadequate doctrine. It is somewhat ameliorated by the court’s direction to prosecutors not to abuse their discretion by engaging in harassing multiple prosecutions. That is good as far as it goes, but we should take the benefit of the better thought on the subject embodied in Model Penal Code § 1.07 (2), (3) (Proposed Official Draft 1962) (set out following this opinion). There is no need to claim that such provisions are constitutionally compelled. They are sound and should be accepted as a general standard for the Commonwealth, subject to supersession by a more particularized rule to be adopted after study and recommendation in the usual course by our Advisory Committee on Rules of Criminal Procedure. This suggestion follows in the tracks of an opinion by Jacobs, J., who led his court to a like conclusion in State v. Gregory, 66 N.J. 510 (1975). See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance § 1.3 (Approved Draft 1968); 7 Colo. Rev. Stat. Ann., Rules of Criminal Procedure 8 (a) (1973); SmithHurd Ill. Ann. Stat. c. 38, § 3-3 (1972); People v. Golson, 32 Ill. 2d 398 (1965), cert. denied, 384 U.S. 1023 (1966). Cf. People v. White, 390 Mich. 245 (1973); State v. Brown, 262 Ore. 442 (1972); Commonwealth v. Campana, 452 Pa. 233 , vacated and remanded, 414 U.S. 808 (1973), on remand, 455 Pa. 622 , cert. denied, 417 U.S. 969 (1974); Regina v. Connelly, [1964] A.C. 1254 (especially Lord Devlin’s judgment, 1338,1347).
As to G. L. c. 278, § 2A, which looks to separate trials of a substantive offense and a related conspiracy, we have said, “The legislative history affords no indication of why § 2A, which may add new complications to enforcement of the criminal law, was adopted at all____” Commonwealth v. French, 357 Mass. 356 , 375 n.20 (1970). Surely § 2A does not represent a definite expression of a legislative preference for a general procedure incompatible with the Model Penal Code. The Federal-State problem need not be instantly solved.
As it happens, the present case is an extraordinary one *582 which does not fall within the policy of the recommended practice because, as the court intimates, the successive proceedings served different interests. But this is an appropriate occasion for announcing a standard, as indeed the court is doing in the main opinion.
Model Penal Code (Proposed Official Draft 1962)
“Section 1.07. Method of Prosecution When Conduct Constitutes More Than One Offense.
“(2) Limitation on Separate Trials for Multiple Offenses. Except as provided in Subsection (3) of this Section, a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.
“(3) Authority of Court to Order Separate Trials. When a defendant is charged with two or more offenses based on the same conduct or arising from the same criminal episode, the Court, on application of the prosecuting attorney or of the defendant, may order any such charge to be tried separately, if it is satisfied that justice so requires.”