# Commonwealth v. Campana > Supreme Court of Pennsylvania · May 4, 1973 · 452 Pa. 233 URL: https://www.frixlaw.com/law-library/cases/9750080 ## Case - **Full name:** Commonwealth v. Campana, Appellant; Commonwealth v. Doe Et Al., Appellants; Commonwealth v. King, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** May 4, 1973 - **Citations:** 452 Pa. 233; 304 A.2d 432 - **Precedential status:** Published - **Opinion:** Concurrence by Nix - **Judges:** Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino - **Cited by:** 256 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Vacated by Pennsylvania v. Campana, 414 U.S. 808 (1973). - Negative treatments: 2 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9750080 ## Opinion text Concurring Opinion by Mr. Justice Nix: I agree that the offenses at issue here, with the exception of appellant King’s conviction for aggravated assault and battery, should have been joined in a single trial. I do not agree with the opinion of those members of this court who would base such joinder on constitutional grounds. A review of the historical basis of the double jeopardy clause convinces me that the suggested extension of that clause would be totally unwarranted. At the time of Blaclcstone, the common law principle governing two trials for the same offense was the plea of autrefois acquit. That plea was “grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offense. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime.” 4 Blackstone’s Commentaries *335. By the time of the drafting of the state and federal constitutions in this country, the concept of double jeopardy had been expanded in two ways: (1) It applied to felony and non-felony offenses *261 and thus was no longer limited to jeopardy of life; 1 and (2) It could be invoked after a prior verdict of guilty as well as an acquittal. Kirk, “Jeopardy” During The Period Of The Year Books, 82 U. Pa. L. Rev. 602 (1934). Thus, the double jeopardy prohibition has two functions: (1) It denies the government an opportunity to convict a defendant of an offense after he has once been acquitted of that offense; and (2) It prohibits the government from exacting multiple punishments for the same offense. Note, Statutory Implementation Of Double Jeopardy Clauses: New Life For a Moribund Constitutional Guarantee, 65 Yale L.J. 339 (1956). While these principles are easily stated, their implementation is difficult. Less than a year after extending the reach of the Double Jeopardy Clause to the states, 2 the United States Supreme Court held that where an issue of ultimate fact has been resolved in the defendant’s favor by a valid judgment, it would constitute double jeopardy to permit the government to relitigate that fact. Ashe v. Swenson, 397 U.S. 436 (1970). Ashe dealt with the situation where a defendant is acquitted of one charge and is subsequently tried on a second charge involving the same “ultimate fact”. Thus, Ashe is concerned with the first function of the double jeopardy clause noted above—i.e., the prohibition against allowing the government to re-litigate that which has already been resolved in the defendant’s favor. Ashe has not been interpreted as determining that the government may not re-litigate issues which were resolved against the defendant at a previous trial. Un *262 der the facts of the Ashe case, if the defendant had been convicted at the first robbery trial, there is no suggestion that he could not have been subsequently tried on the remaining robbery charges. 3 Thus, I cannot read Ashe or the Double Jeopardy Clause as prohibiting the government from bringing a defendant to trial on an offense after obtaining a conviction for a different offense arising from the same transaction, so long as punishment for both of the offenses would not run afoul of the second function of the double jeopardy prohibition (i.e., double punishment). Of course, where a defendant is charged with several offenses that involve the same factual issues, the Commonwealth would be well advised to try the cases together rather than risk falling within Ashe’s prohibition should the first trial result in an acquittal Even if Ashe could be interpreted to require joinder, such joinder would be necessary only where the two offenses have factual issues in common. The opinion of my brother Mr. Justice Roberts expressly disavows the same evidence test, and would compel joinder where the offenses arise from the same criminal episode. Such a result has no basis in the policy of the Double Jeopardy Clause. As a matter of public policy this court should adopt the joinder rule advocated by the American Law Institute Model Penal Code (§107(2)): “[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. ...” I agree that this test “protects vital societal interests” in avoiding *263 piecemeal litigation thereby conserving “precious judicial and professional manpower as well as the time of jurors, witnesses and the use of public resources.” While such a rule could appropriately be applied prospectively as suggested by my brother Mr. Justice Pomeroy, it would not be inconsistent with the policy of giving litigants an incentive to raise new issues before the bar of this court to grant these appellants the benefit of the rule. See generally, Willis v. Department of Conservation & Economic Development, 55 N.J. 534 , 264 A. 2d 34, 37-38 (1970). I therefore concur in this court’s reversal of the judgments of sentence imposed at No. 151 September Term, 1968, Lycoming County, No. 255 September Sessions, 1968, Berks County, and No. 520 April Sessions, 1969, Allegheny County. Pennsylvania was unique in continuing to limit the Double Jeopardy Clause to capital offenses. See Hall, Kamisar, LaFave, Israel, Modern Criminal Procedure (1969) at 1213. Benton v. Maryland, 395 U.S. 784 (1969). A minority of the Ashe court, Justices Brennan, Douglas and Marshall, would have adopted the same criminal episode test expressed by Mr. Justice Roberts. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9750080. Public record. Not legal advice.