# State v. Black

> Tennessee Supreme Court · June 16, 1975 · 524 S.W.2d 913

URL: https://www.frixlaw.com/law-library/cases/9767947

## Case

- **Full name:** STATE of Tennessee, Petitioner, v. John Edward BLACK, Respondent
- **Court:** Tennessee Supreme Court
- **Decided:** June 16, 1975
- **Citations:** 524 S.W.2d 913; 1975 Tenn. LEXIS 676
- **Precedential status:** Published
- **Opinion:** Dissent by Henry
- **Judges:** Harbison, Fones, Cooper, Brock, Henry
- **Cited by:** 127 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9767947

## How later opinions describe it (automated extraction)

- holding that the facts supported two distinct offenses of armed robbery and assault with intent to commit murder in the second degree
- recognizing and applying the “identity of offenses” test of Blockburger v. United States, 284 U.S. 299, 302-04, 52 S.Ct. 180, 181-82, 76 L.Ed. 306 (1932)

## Opinion text

HENRY, Justice
(dissenting).
While I concur in the ultimate holding that Black was guilty of two separate and distinct offenses, I respectfully dissent from the remainder of the opinion.
The majority opinion of the Court of Criminal Appeals proceeds upon the assumption that reversal is demanded by the ruling of this Court in Acres v. State, 484 S.W.2d 534 (Tenn.1972).
Judge Robert K. Dwyer concurred in the results, but not the reasoning, of Judge Galbreath’s majority opinion. Judge Dwyer reasoned that since the elements of force and violence were involved in both offenses, there could be but one punishment and concluded that he would affirm the robbery conviction under the rationale found in Walton v. State, 1 Tenn.Cr.App. 668, 448 S.W.2d 690, 697 (1969).
Judge Charles H. O’Brien dissented, being of the opinion that the case was controlled by Duchac v. State, 505 S.W.2d 237 (Tenn.1973).
Both sides petitioned this Court for cer-tiorari. In the State’s petition, it is argued that “the writ of certiorari must issue so that this Honorable Court can resolve the apparent, or perhaps real, conflict between the Acres and Duchae cases”.
We granted the State’s petition. The grant was only in a very limited sense “in order to deal with the issue of convictions for multiple offenses in a single trial”, as asserted by the majority. Actually, we *921 granted certiorari in order that this Court might take a new and fresh look at the considerations involved in cases involving prosecutions and convictions arising out of a “single frolic”, or “one criminal episode”, or the “same transaction”, or arising from any other set of facts, however designated, giving rise to two or more prosecutions, conducted either successively or simultaneously.
Phrasing the matter another way, we granted the writ to clear up the conflict between Acres and Duchac , and their respective underlying cases, involving both successive prosecutions and multiple prosecutions in a single trial. We have been beseeched to address this vexatious and recurring problem. In my view it is the clear duty of this Court to speak to the issue and provide sorely needed guidance to the bench and bar of the State.
The majority, in effect, says we do not like Acres ; but we do not find it necessary to overrule it; however, “we are not inclined to extend its application.”
The majority follows Duchac , but says: It is also somewhat difficult to agree with the actual result reached in the Du-chac case.
Convicting Duchac of burglary and carrying the instruments of the burglary is in the same precise category with convicting a defendant of murder and for “toting” the pistol used in the murder. There is something about such a ruling that curdles and corrodes reason, and is offensive to elemental standards of justice. Phrasing it in the vernacular, “these two dogs won’t hunt together”.
The majority says:
The cases, from their nature, have to be dealt with by analysis of the particular situations as they arise. (Emphasis added).
In other words, we will approach each case on an ad hoc basis, and let the facts of the case determine the disposition sans guidelines, standards or principles, preserving Acres with statements which “cannot be reconciled”, and Duchac , in the face of actual results with which it is “somewhat difficult to agree”.
A court of last resort is not an ad hoc committee. One of its primary functions is to clarify law for the guidance of the profession by the articulation of rules, principles and procedures designed to create a body of established and reliable precedent. The importance of settling the law was considered by Justice Brandéis to be a paramount consideration, prompting his remark that “(i)n most matters it is more important that the applicable rule of law be settled than that it be settled right”. 1 We are under a duty to adopt rational standards, governing principles and precedential procedures. The majority opinion leaves the bar to speculate as to how we will apply the ad hoc standards of Black to the Acres-Du-chac controversv.
I.
It is precisely this ad hoc approach that created the confusion, chaos and conflicts that we now decline to correct.
The majority looks with favor upon Dowdy Rules. So do I. But Dowdy presents a two-fold problem.
Under the fourth rule of Dowdy, Acres was guilty of two offenses. Under the first rule of Dowdy, Duchac was guilty of one offense. We should point out that there is a distinction in the application of these rules between cases involving multiple prosecutions in a single trial and those involving successive prosecutions. Failure to observe this distinction has been the basic cause of the confusion we are called upon to clarify. Actually, the Dowdy rules apply only to successive prosecutions although their rationale may be persuasive in cases involving multiple, simultaneous prosecutions. Subsequent cases have tended to ignore this *922 distinction as does the majority in the instant case. Ignoring the distinction renders the rules confusing.
The ad hoc standard we today adopt — the same standard we have applied since this Court released its opinion in Fiddler v. State, 26 Tenn. 508 (1847), has produced a hodge-podge of decisions which defy logical analysis. In Fiddler the Court held that a conviction for running a horse along a public road barred a prosecution for betting on the race.
In State v. Chaffin, 32 Tenn. 493 (1852), the Court held a conviction for assault bars a further prosecution for a battery committed at the same time.
In Ramsey v. State, 37 Tenn. 653 (1858), the Court held that a conviction for betting upon an election bars further prosecutions for other bets on the same election.
In State v. Covington, 142 Tenn. 659 , 222 S.W. 1 (1920), the Court held that an acquittal of transporting liquor bars a subsequent prosecution for driving while drunk at the same time.
In English v. State, 219 Tenn. 568 , 411 S.W.2d 702 (1966) the Court held that a conviction of larceny bars a prosecution for gaming arising out of the same transaction.
These successive prosecution cases all rest upon the application of the “same transaction” test which, according to Duchac is not the law in Tennessee.
I applaud the reasoning and results of these cases. They would be supportive of Acres had it involved successive as opposed to multiple or simultaneous prosecutions.
In other successive prosecution cases, our courts have also held that an assault to murder is not barred by a conviction for simultaneously disturbing religious worship, (State v. Ross, 72 Tenn. 442 (1880)); an acquittal of driving while intoxicated does not bar a subsequent prosecution of careless driving (Usary v. State, 172 Tenn. 305 , 112 S.W.2d 7 (1938)); an acquittal of disposing of mortgaged property does not bar prosecution for obtaining money under false pretenses in the same transaction (McClure v. State, 174 Tenn. 140 , 124 S.W.2d 240 (1939)); a dismissal of charge of rape does not bar prosecution for violation of the age of consent, involving the same female (Hamblen v. State, 183 Tenn. 221 , 191 S.W.2d 537 (1945)); an acquittal of failing to stop after an accident does not bar a prosecution for second degree murder arising from the same events (Eager v. State, 205 Tenn. 156 , 325 S.W.2d 815 (1959)); a burglary conviction does not bar subsequent prosecution for assault to commit rape committed simultaneously (Harris v. State, 206 Tenn. 276 , 332 S.W.2d 675 (1960)); a conviction of robbing a store does not bar subsequent conviction for robbing a customer of the store who entered during the robbery (Wilkerson v. State, 211 Tenn. 32 , 362 S.W.2d 253 (1962)); and a conviction for voluntary manslaughter does not bar a prosecution for carrying a pistol (Arterburn v. State, 216 Tenn. 240 , 391 S.W.2d 648 (1965)).
These subsequent prosecutions are allowed under the “same transaction” or “same offense” test and on the basis that the offenses were distinct and separate. Generally, they involved trials for lesser offenses committed simultaneously but not necessarily lesser included offenses.
These cases do not necessarily conflict with the first group.
They involve successive trials after convictions or acquittals and present no problem that a compulsory joinder rule would not correct.
The difficulty arises when the “same transaction” or “same offense” rules, or the Dowdy rules, as applied in successive prosecution cases, are invoked in cases involving multiple indictments or multi-count indictments. I group these cases together for the purposes of this opinion and hereafter refer to them as dual or multiple prosecutions or convictions.
*923 In Patmore v. State, 152 Tenn. 281 , 277 S.W. 892 (1925), the Court applied the same transaction test and permitted only one conviction under an indictment charging possession of a still and unlawful manufacture of whiskey.
Applying the same transaction rule this Court in Smith v. State, 159 Tenn. 674 , 21 S.W.2d 400 (1929), refused to permit simultaneous convictions for assault and battery on one person and manslaughter on another, in the same incident.
We applied the same transaction test in Coffey v. State, 207 Tenn. 260 , 339 S.W.2d 1 (1960) and held that two offenses of the same nature arising from the same act could not stand.
We applied the same test in Jackson v. State, 216 Tenn. 13 , 390 S.W.2d 202 (1965), with the same results.
But in Arterbum v. State, supra, we permitted two convictions, i. e., voluntary manslaughter and carrying a pistol, to stand.
In Morgan v. State, 220 Tenn. 247 , 415 S.W.2d 879 (1967), we permitted multiple prosecutions growing out of the same act by reason of their being separate and distinct acts.
In Walton v. State, 1 Tenn.Cr.App. 668, 448 S.W.2d 690 (1969), the Court of Criminal Appeals permitted only one conviction to stand because the two offenses charged resulted from one continuing act, inspired by the same criminal intent.
In Carr v. State, 2 Tenn.Cr.App. 568, 455 S.W.2d 619 (1970), the Court of Criminal Appeals followed the same reasoning and reached the same conclusion, allowing only one conviction to stand.
However, in Hayes v. State, 4 Tenn.Cr.App. 360, 470 S.W.2d 950 (1971), the Court of Criminal Appeals permitted two convictions on the basis of their being two distinct and unconnected offenses.
In Rochett v. State, 475 S.W.2d 561 (Tenn.Cr.App.1971), two convictions were permitted on the basis of being separate and distinct offenses with separate intents.
In Simmons v. State, 483 S.W.2d 590 (Tenn.Cr.App.1972), two convictions were permitted on the basis of one continuous transaction requiring separate actions.
Then, in Acres , this Court rejected convictions for armed robbery and murder on the basis of their commission being “a single continuing act inspired by the same criminal intent”, in effect, applying the “same transaction” test.
In Ward v. State, 486 S.W. 292 (Tenn.Cr.App.1972), the Court of Criminal Appeals went back to the “same evidence” rule and permitted two convictions to stand.
In Young v. State, 487 S.W.2d 305 (Tenn.1972), this Court based its ruling on a single continuous intent, and permitted only one conviction.
In Russell v. State, 499 S.W.2d 945 (Tenn.Cr.App.1973), the Court based its decision on different elements and, in a sense on the “same evidence” rule.
Then in Duchac , this Court embraced the “same evidence” and rejected the “same transaction” test.
II.
Our approach to this problem area of the law has been inconsistent both as to the rules and as to their application. There is no escape from the conclusion that these rules and the Dowdy rules have not been uniformly applied. No logical pattern emerges.
In my view, our approach to a solution of the problem of successive and multiple prosecutions and convictions necessarily entails a separation and isolation of the problem areas in a two-step analysis.
First, we must focus on the procedural aspects of the problem and determine the number of prosecutions the state may bring (successive prosecutions); secondly, we *924 must establish guidelines to govern cases involving multiple charges in a single trial.
It is the failure to take this analytical approach that has created the confusion I would seek to correct.
At the very outset I recognize that the issues here addressed are rooted in the double jeopardy provisions of the Federal and State Constitutions.
The Fifth Amendment to the Constitution of the United States provides, in part:
(N)or shall any person be subject for the same offense to be twice put in jeopardy of life or limb .
This is a “fundamental ideal in our constitutional heritage” and it applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969).
In Green v. United States, 355 U.S. 184, 187-188 , 78 S.Ct. 221 , 2 L.Ed.2d 199, 204 (1957), the Court said:
. (t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing- the possibility that even though innocent he may be found guilty. This underlying notion has from the very beginning been part of our constitutional tradition. Like the right to trial by jury, it is clearly “fundamental to the American scheme of justice”.
Article 1, Sec. 10 of the Constitution of Tennessee provides:
That no man shall, for the same offence (sic) be twice put in jeopardy of life or limb.
It will be noted that Tennessee’s Double Jeopardy clause differs only stylistically from that contained in the Fifth Amendment.
III.
I necessarily digress at this point in order to proceed to a discussion of the various “tests”, since such a discussion forms a necessary predicate to the solutions that I have earnestly, but vainly, urged upon the Court.
The “same evidence” test was first enunciated in 1796 in the English case of Rex v. Vandercomb & Abbott, 168 Eng.Rep. 455, 461 (Ex.1796) in these terms:
(U)nless the first indictment were such as the prisoner might have been convicted upon by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second.
England has since abandoned this rule and has adopted the “same transaction” test. Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970).
The “same evidence” test was enunciated in this country in Morey v. Commonwealth, 108 Mass. 433, 434 (1871) wherein the test is
* * * not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each offense requires proof of an additional fact which the other does not, an acquittal, or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.
The Supreme Court of the United States has never applied the “same evidence” test in a case involving the Fifth Amendment double jeopardy guarantee against successive prosecutions. It has, however, applied the test in cases involving multiple charges in a single trial and has held that multiple convictions and cumulative punishments are *925 permissible if the offenses charged are not the same under the test.
In Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932) the Court said:
Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.
This, in effect, is the same evidence test.
In Gore v. United States, 357 U.S. 386 , 78 S.Ct. 1280 , 2 L.Ed.2d 1405 (1958) the Supreme Court adhered to this holding.
The Supreme Court has laid down what has been called a variation of the “same evidence” rule, known as the “distinct elements” test. 2 In Gavieres v. United States, 220 U.S. 338 , 31 S.Ct. 421 , 55 L.Ed. 489 (1911) the Court, dealing with a successive prosecution case, said:
A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.
Another variation was developed in Burton v. United States, 202 U.S. 344 , 26 S.Ct. 688 , 50 L.Ed. 1057 (1906) where the Court laid down an “identity test”, holding that offenses are the same only if they are identical in law and in fact.
The “same evidence” test has been strongly criticized. In Ashe v. Swenson, supra, the majority opinion did not reach the proposition of identity of offenses, the majority holding that Ashe’s second trial (for a multiple armed robbery) was barred by collateral estoppel, a part of the constitutional guaranty against double jeopardy.
Justice Brennan, in his concurring opinion (joined by Justices Douglas and Marshall), commented on the “same evidence” test as follows:
(I)ts deficiencies are obvious. It does not enforce but virtually annuls the constitutional guarantee. For example, where a single criminal episode involves several victims under the “same evidence” test a separate prosecution may be brought as to each. (Citations omitted). The “same evidence” test permits multiple prosecutions where a single transaction is divisible into chronologically discrete crimes. (Citations omitted). Even a single criminal act may lead to multiple prosecutions if it is viewed from the perspectives of different statutes. (Citations omitted). Given the tendency of modern criminal legislation to divide the phases of a criminal transaction into numerous separate crimes, the opportunities for multiple prosecutions for an essentially unitary criminal episode are frightening. And given our tradition of virtually unreviewable prosecutorial discretion concerning the initiation and scope of a criminal prosecution, the potentialities for abuse inherent in the “same evidence” test are simply intolerable.
Justices Brennan, Douglas and Marshall would reject the “same evidence” test and adopt the “same transaction” test.
*926 However, the Chief Justice, dissenting, would have applied the “same evidence” test.
I am convinced that the “same evidence” test does not provide adequate protection, under modern conditions, from the evils contemplated by the double jeopardy prohibitions. The development of the criminal law and the “criminal law explosion” of the last decade have shed a new light on the constitutional prohibition against double jeopardy. Time was when our criminal code contained relatively few offenses and a single course of conduct was unlikely to produce multiple offenses. As our state has progressed the number, complexity and intricacy of criminal statutes have undergone a corresponding change. One only needs to look at our present criminal code and the proposed code prepared by the Tennessee Law Revision Commission to validate the conclusion that we have witnessed a veritable proliferation of penal statutes.
As stated in Ashe ,
As the number of statutory offenses multiplied the potential for unfair and abusive reprosecutions became far more pronounced.
The Oregon Supreme Court, in State v. Brown, infra, in this regard, commented:
A prosecutor is limited only by the number of ways in which the legislature has made the defendant’s conduct punishable, and may indulge in the harassment against which the double jeopardy guarantee should protect. He may split his case, so that if the first trial results in an acquittal he can try the defendant again, for essentially the same conduct, before a different jury or, in case of a conviction, he can prosecute further to obtain what he considers a suitable punishment. He can use the first prosecution as a “trial run”, planning on refining his case if the first prosecution is unsuccessful. As a consequence, a defendant is deprived of the assurance that an acquittal is the end of the matter or that a conviction and sentence is the final measure of his guilt and punishment. Moreover, repeated prosecutions strain the resources of defendants and dissipate those of the courts and prosecutors, and deprive judgments of their finality. Modern commentators are, for these reasons, justly critical of the “same evidence” test.
I cannot join with the majority in the adoption of the “same evidence” rule, permitting, as it does, multiple prosecutions where a single transaction is devisible into chronologically discrete crimes. See Johnson v. Commonwealth, 201 Ky. 314 , 256 S.W. 388 (1923) (each of 75 poker hands a separate offense). 3
The most commonly proposed alternative to the “same evidence” rule is some form of compulsory joinder of charges arising out of the same act or transaction. State v. Brown, 262 Or. 442 , 497 P.2d 1191 (1972).
The “same transaction” test proceeds upon the theory that double jeopardy attaches when a second trial is attempted for crimes arising out of the same transaction.
Under this test a prosecution is barred if in a previous prosecution the defendant was charged with an offense grounded in the same factual transaction.
This test was applauded by Justice Brennan in his concurring opinion in Ashe, supra, in these words:
This “same transaction” test or “same offense” not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy clause, but responds well to the increasingly undisputed recognition that the consolidation in one lawsuit of all issues arising out of a single transaction *927 or occurrence best promotes justice, economy, and convenience.
IV.
Having discussed the various tests, I now return to step one of the analysis, dealing with successive prosecutions. The compulsory joinder approach has been adopted by the American Law Institute in its Model Penal Code, 4 as an answer to this problem.
The Federal Rules of Criminal Procedure encourage the joinder of parties and charges in a single trial. 5 These rules represent the best of modern thought in structuring criminal trials.
Michigan adopted the “same transaction” test in a most excellent opinion by Justice Swainson, in People v. White, 390 Mich. 245 , 212 N.W.2d 222 (1973).
See also another comprehensive opinion by the Pennsylvania Supreme Court in Commonwealth v. Campana, 452 Pa. 233 , 304 A.2d 432 (1973), holding that the Double Jeopardy clause requires a prosecutor to bring in a single proceeding all known charges against a defendant stemming from a “single criminal episode”.
I would hold that the Double Jeopardy clauses of the Constitution of the United States and of the State of Tennessee require that the prosecutor join at one trial, either in multiple indictments or, in proper cases, in multi-count indictments, all the charges against a defendant that grow out of a single act, event, occurrence, episode, transaction or behavioral incident.
Subject to the right of the trial judge to grant a severance if the ends of justice so require, I would hold that:
“(A) defendant shall not be subject to separate trials for multiple offenses based upon 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.”
This is the standard promulgated by the American Law Institute in its Model Penal Code, Sec. 1.07(2) (P.O.D.1962).
It should be noted that these standards are procedural in nature and do not preclude multiple convictions, separate convictions or cumulative punishments, nor do they require single indictments. Conduct may be divisible for purposes of punishment and yet unitary for purposes of prosecution.
Further these standards do not preclude the trial judge from granting a severance and ordering separate trials, at the behest of either party, upon his determination that the ends of justice so require.
The objective of these standards is the formulation of limitations upon unfair, expensive, court-clogging and constitutionally suspect multiplicity of prosecutions based upon essentially the same conduct.
These same standards do not require that the District Attorney General prosecute for all known offenses. His discretion remains. All that is required is that all known charges be determined in a single prosecution. The penalty for failure to do so is that the State is forever barred from subsequent prosecutions violative of these standards.
The formulation of these rules would result in better structured trials and will substantially reduce the chaos and confusion which now enshrouds Tennessee criminal procedure.
I fully appreciate the fact that the compulsory joinder of criminal charges is a matter upon which the legislature might properly act; however, it is not exclusively within the legislative domain.
We are concerned with the minimum protection required by the State and Federal Constitutions.
*928 In my judgment, the Double Jeopardy clauses of each constitution demand a limitation on successive prosecutions.
Hence the necessity for the formulation of these standards.
Y.
Having suggested a compulsory joinder procedure to safeguard and protect basic constitutional rights it becomes necessary to lay down rules relating to multiple convictions.
Again I would adopt the provisions of the ALI Model Penal Code 6 as follows;
When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other; or
(b) one offense consists only of a conspiracy or other form of preparation to commit the other; 7 or
(c) inconsistent findings of facts are required to establish the commission of the offenses; or
(d) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or
(e) the offense is defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.
Tennessee, as heretofore pointed out, has a felony-murder statute. These standards should not be construed to prevent dual convictions in felony-murder cases.
The felony-murder rule is not at issue in this case. I reserve a full discussion and conclusion for subsequent consideration. I point out in passing that the majority opinion takes the position that the felony-murder rule, as enunciated in Acres , precludes a second conviction, and only one conviction may stand. I disagree with this result and point that it is hopelessly at variance with the “same evidence test,” as impliedly adopted by the majority. Under the main opinion, Acres was guilty of two offenses under the “same evidence” test. In the same opinion, he was guilty of one offense under the felony-murder rule.
Nor should these standards be construed to prevent a severance when the interests of justice require.
The fact that crimes occur at substantially the same time and place does not in itself preclude multiple convictions.
When we consider multiple convictions resulting from a single trial we must do so in the light of the fact that our constitutional provisions are not aimed at convictions but trials. As Chief Justice Burger noted, in Price v. Georgia, 398 U.S. 323 , 90 S.Ct. 1757 , 26 L.Ed.2d 300 (1970):
“The prohibition is not against being twice punished, but against being twice put in jeopardy . . ..” ... The “twice put in jeopardy” language of the Constitution thus relates to a potential, i. e., the risk that an accused for a second time will be convicted of the “same offense” for which he was initially tried. (Emphasis ours).
Nothing I have said in this dissent relates to the form, manner or extent of punishments. They are not here involved.
*929 VI.
I apply these rules, first to Acres .
All offenses were charged and tried in a single proceeding.
They were committed as a part of the same transaction.
But he did not fall within any of the exceptions.
Hence, Acres was subject to conviction both for murder and armed robbery.
I would abandon Acres .
I apply them next to Duchac .
All offenses were charged and tried in a single proceeding.
They were committed as a part of the same transaction.
However, the burglarious tools were possessed in preparation for the commission of the burglary or in order to accomplish the same.
Hence, Duchac’s conviction should have been restricted to third degree burglary.
I would depart from Duchac .
I apply the standards lastly to the case at bar.
All charges against Black were presented in one indictment and he was proceeded against in a single trial.
The charges grew out of a single transaction.
He committed two wholly separate and distinct offenses for which he was properly convicted. There was a break or pause in continuity. The robbery had been fully and finally accomplished. Thereafter, he committed the assault.
His offenses do not fall within any of the exceptions.
I file this dissent out of an honest belief that my brothers have erred in their failure to come to grips with the issues presented to the Court for solution, and because I conceive it to be my duty to make known my views. I sincerely hope the Bench and Bar of this State will carefully and critically examine these comments and conclusions and will unite in an effort to achieve solutions. If this dissent challenges the interest of those who preside over and participate in criminal trials, it shall have been well worth the time and effort expended in its preparation. Hopefully we will soon resolve the old Acres-Duchac controversy and the newly created Acres-Duchac-Black problem.
. A. Barth, Prophets with Honor, p. 13 (1974).
. 75 Yale L.J. 262 , 273 (1965).
. As a minimum, having adopted the “same evidence” rule the majority should have excepted from its application lesser included offenses, and should have recognized the doctrine of collateral estoppel.
. American Law Institute, Model Penal Code, 1.07(2) (P.O.D.1962).
. See Rules 8 and 13, Federal Rules of Criminal Procedure.
. American Law Institute, Model Penal Code, Sec. 1.07(1) (P.O.D.1962).
. As pointed out in the comment under Sec. 1.08 (now 1.07) of the Code, “the limitation of the draft is confined to the situation where the completed offense was the sole criminal objective of the conspiracy. Therefore, there may be conviction of such a conspiracy if the prosecution shows that the objective of the conspiracy was the commission of additional offenses.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9767947. Public record. Not legal advice.