People v. White , 41 Mich. App. 370 ( 1972 )

41 Mich. App. 370 (1972) 200 N.W.2d 326

PEOPLE
v.
WHITE.

Docket No. 10125.

Michigan Court of Appeals.

Decided June 26, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.

Robert E. McCall, for defendant on appeal.

Before: LEVIN, P.J., and HOLBROOK and BRONSON, JJ.

Leave to appeal granted, 388 Mich. 780.

BRONSON, J.

Defendant was convicted by a jury in the Detroit Recorder's Court of rape, MCLA 750.520; MSA 28.788 and felonious assault, MCLA 750.82; MSA 28.277. These convictions were based on an information filed on April 15, 1968. Defendant was sentenced to prison terms of 8 to 30 years on the rape conviction and 3 years and 9 months to 4 years on the felonious assault conviction. Defendant appeals of right.

Prior to this trial, defendant was convicted of kidnapping, MCLA 750.349; MSA 28.581, by a jury in the Wayne County Circuit Court. The kidnapping trial was based on the same facts which led to defendant's later trial and convictions for rape and felonious assault. He received a sentence of 5 to 15 years for his kidnapping conviction. Defendant did not appeal that conviction and its validity is not before this Court.^[1]

The record reveals that defendant met the victim and two of her girlfriends at the Windsor Racetrack on the evening of February 15, 1968. After leaving the track, defendant accompanied the victim and her companions to a local nightclub and then to a party. Upon leaving this party, the victim and her friends drove home to Inkster, Michigan. Defendant followed them to one of the friend's homes. When the complaining witness exited her vehicle, defendant apprehended her and asked her to return to downtown Detroit with him. When she refused, defendant struck her with the butt of a gun and forced her into his car, which was occupied by two other males. During the return ride to Detroit, the victim was forced to engage in sexual intercourse with the defendant.

Following defendant's conviction for kidnapping on March 21, 1969, a scheduled trial for March 25, 1969, on the rape charge was adjourned to await his sentencing for kidnapping.

Subsequent to his sentencing for kidnapping, the prosecution proceeded to schedule a trial on the rape charge. Defendant's motion to quash the complaint and warrant were denied. This Court granted his motion for immediate consideration for leave to appeal that denial and denied an application for emergency leave to appeal. Following the instant convictions, defendant moved for a new trial. The motion was denied.

The question presented for review is whether multiple prosecutions for several crimes arising out of the same criminal transaction violates defendant's right not to be placed in jeopardy twice for the same offense in contravention of the Fifth Amendment to the United States Constitution.

The generally stated rule is that there is no double jeopardy unless the offenses are the same both in law and in fact. A second prosecution is barred only when the facts necessary to convict in the second prosecution would necessarily have convicted in the first. This is known as the same evidence test. The rule has been criticized generally by commentators as inconsistent with the objectives underlying the double jeopardy prohibition.^[2]

There are several purposes underlying the double jeopardy prohibition. First, guilt should be established by proving criminal elements to a single jury rather than by allowing a prosecutor to rely on the increased probability of conviction by repeated prosecution. Thus, the rule against reprosecution for the same offense after acquittal. Second, the prosecutor should not be able to go sentence shopping by bringing successive prosecutions for the same offense before different judges. Thus, prosecution after conviction is prohibited. Third, criminal trials should not be instruments of harassment and second trials are forbidden. Finally, a person should not be subject to multiple punishment for a single legislatively defined offense. Judges, therefore, may not impose multiple punishment for the same offense at a single trial. Comment, Twice in Jeopardy, 75 Yale L J 262, 266-267.

As can be seen, the various policies lead to different rules which cover different situations. The courts have applied the same evidence test to both retrial and multiple punishment situations without considering the evil each situation presents. Applying the test in this way ignores the growing sophistication of legislatures in defining criminal activity. The test emphasizes a prosecutor's skill in framing an information rather than the state's interest in vindicating itself against defendant for his antisocial conduct. By applying the limiting definition of same offense inherent in the same evidence test, courts have permitted prosecutors, who have almost unlimited discretion in initiating a prosecution, to circumvent the protection which the double jeopardy clause affords and make the criminal trial an instrument capable of harassment. An examination of defendant's behavior in the instant case in indicative of the problem. It takes little imagination to think of a number of legislatively defined crimes which a prosecutor could have charged defendant with. As Mr. Justice Brennan has noted, in such situations the possibilities for abuse are frightening. Ashe v Swenson, 397 U.S. 436; 90 S. Ct. 1189; 25 L. Ed. 2d 469 (1970) (concurring opinion).

The United States Supreme Court has given some credence to the same evidence test by applying it in other situations.^[3]Blockburger v United States, 284 U.S. 299; 52 S. Ct. 180; 76 L. Ed. 306 (1932). The Court has never used the test in a case involving successive prosecutions following an initial conviction.^[4] The cases in which the test has been used all involved multiple count convictions at a single trial.^[5] In the only cited case dealing with the problem presented by the instant case, the Court applied a transactional test.^[6] In In re Nielsen, 131 U.S. 176; 9 S. Ct. 672; 33 L. Ed. 118 (1889), the Court held that an initial conviction precluded prosecution for a second crime which required proof of different elements than were required in the first trial. The basis of the Court's opinion was that the government was attempting to punish the defendant twice for essentially the same illegal conduct.

The same transaction test has been used in several jurisdictions.^[7] One form of the test has recently been adopted in Alaska. Whitton v State, 479 P2d 302 (Alas, 1970).^[8] In a lengthy discussion of the problem, the Alaska Supreme Court recognized that the problem cannot be solved by easy application of a rigid mechanical formula.

Michigan has implicitly recognized the test in People v Miccichi, 264 Mich. 581, 583-584 (1933). The Court there held that a prosecution for murder which results in acquittal does not bar subsequent prosecution for the robbery in which the murder occurred where the two are not shown to be connected. The clear implication of the opinion is that where two statutorily-defined crimes are committed during the commission of a single criminal transaction and are inextricably intertwined, prosecution for one crime bars a subsequent prosecution for the other. Judge LEVIN has urged full recognition of this test by this Court. People v Noth, 33 Mich. App. 18 (1971) (dissent). The thrust of this formulation is the defendant's purpose in undertaking the criminal activity involved. Where a defendant has one objective and commits several crimes in preparing for and in attaining that objective, the prosecution may initiate only one prosecution.^[9]

One advantage of this test is that it is consistent with double jeopardy's purpose of bringing finality to criminal proceedings. When double jeopardy operates it enables a defendant to consider the matter closed and saves the cost of redundant litigation. It also helps, to some extent, to equalize the adversary capabilities of grossly unequal litigants.

The same transaction test also goes a long way towards preventing harassment and sentence shopping. In doing so, it recognizes that the prohibition of double jeopardy is for the defendant's protection. It is not a device which allows the state, by using legal technicalities, to determine when it has received fair treatment at a trial or when the defendant has received a satisfactory sentence.

We believe harassment occurs whenever a prosecutor acts without legitimate justification. Sentence shopping is not a legitimate justification for reprosecution. In seeking to prohibit these practices, the double jeopardy clause puts an outside limit on a prosecutor's discretion.

In Michigan, the Legislature defines what conduct is considered criminal and the length of prison confinement which may be imposed for such conduct. The judiciary determines the proper sentence, within the legislatively-defined limits, for a convicted defendant based on all relevant considerations before it. MCLA 769.1; MSA 28.1072. In imposing sentence, the judge normally has before him not only the evidence presented at trial but also the circumstances surrounding the crime in a presentence report. Miller, Prosecution: The Decision to Charge a Suspect With a Crime (Little, Brown & Co, 1969), pp 199-200 and fn 21. It is not the prosecutor's function to become involved in the sentencing procedures. To the extent that he does become involved he should seek to assure that a fair and informed judgment is made on the sentence and to avoid unfair sentence disparities. ABA Standards, The Prosecution Function and the Defense Function § 6.1 (Approved Draft, 1971). When the prosecutor is able to reprosecute a defendant for a technically different crime, he is able to do indirectly what he cannot do directly — challenge a judge's discretion in imposing sentence.

By adopting the same transaction test, we are not depriving the state of its right to vindicate itself for each crime an accused commits during one criminal transaction. Liberal joinder rules permit the state to vindicate its interest in one trial when the crimes are committed in the same local jurisdiction.^[10] Even where, as here, the crimes are committed in different jurisdictions within the state, the state is still able to vindicate its interests.

A procedural rule allocating jurisdiction to try offenses between the several courts of the state must be subordinated to a defendant's constitutional right not to be put twice in jeopardy for the same offense. Cf. Gouled v United States, 255 U.S. 298, 313; 41 S. Ct. 261, 266; 65 L. Ed. 647, 654 (1921). This state's judicial power is, under our Constitution, vested in "one court of justice". Const 1963, art 6, § 1. While that power is divided among several courts, all the courts are parts of the same unified judicial system. When two or more such jurisdictions may try a defendant for a criminal transaction, the first to obtain jurisdiction does so to the exclusion of the others. People v Hanrahan, 75 Mich. 611 (1889). Application of the same transaction test does not prohibit separate trials where a defendant is involved in several criminal transactions at different times.^[11] By employing this test we allow substance to govern form and give meaning to a constitutional guarantee which cannot be ignored.

In the instant case, defendant committed three identifiable crimes in one continuous sequence to achieve one purpose — sexual intercourse with his victim. The same witnesses and essentially the same evidence was heard at both trials. A review of that evidence indicates that the assault was necessary to achieve the kidnapping and the kidnapping was merely preparatory in achieving the ultimate goal — rape. None of these crimes can be defined as a separate and independent transaction. They were all the product of a single criminal intent. Under these circumstances the prosecutor acted in violation of defendant's right not to be put in double jeopardy when he sought a second prosecution because of his dissatisfaction with defendant's sentence on the kidnapping conviction. This conduct is contrary to the protection double jeopardy affords an individual. The complaint and warrant should have been quashed.

Reversed.

LEVIN, P.J., concurred.

HOLBROOK, J. (dissenting).

This writer is unable to subscribe to the result obtained in the majority opinion.

The essential sordid facts indicate that the defendant met the complaining witness and two of her girlfriends at the Windsor Race Track during the evening of February 15, 1968. After a night of socializing, the complaining witness and her friends drove to one of the friend's homes in Inkster, Michigan. The defendant and two companions followed them. When the complaining witness exited her vehicle, the defendant stopped her and asked her to return to Detroit with him. She refused. The defendant then struck her with a gun and forced her into his vehicle. Thereafter, inside the corporate limits of the City of Detroit, the defendant forced the complaining witness to engage in sexual intercourse with him.

The defendant was arraigned in Detroit Recorder's Court on February 21, 1968, for the offense of rape. On February 28, 1968, he was arraigned in Inkster, Michigan, on the charge of kidnapping. On March 4, 1968, the preliminary examination on the rape charge was held in the Detroit Recorder's Court. The preliminary examination on the charge of kidnapping was held in Inkster on March 6, 1968. Defendant was bound over to the Recorder's Court on the charge of rape, MCLA 750.520; MSA 28.788, and felonious assault, MCLA 750.82; MSA 28.277, and the Wayne County Circuit Court on the charge of kidnapping, MCLA 750.349; MSA 28.581.

On March 21, 1969, the defendant was convicted by a jury in Wayne County Circuit Court of kidnapping. A scheduled trial for March 25, 1969, in the Detroit Recorder's Court on the charges of rape and felonious assault was adjourned. Thereafter, defendant was sentenced in the Wayne County Circuit Court to 5 to 15 years for kidnapping.

Subsequent to the sentencing for kidnapping, the prosecution proceeded to trial on the rape and felonious assault charges in the Detroit Recorder's Court. Defendant was convicted by a jury of both charges. He was sentenced to prison terms of 8 to 30 years on the rape conviction and 3 years and 9 months to 4 years on the felonious assault conviction.

On appeal, defendant contends that the Detroit Recorder's Court erred in denying defendant's motion to quash on the basis of double jeopardy. The majority opinion concurs, adopting the "same transaction" test for determining whether double jeopardy is applicable.

I

The Const 1963, art 1, § 15 states:

"No person shall be subject for the same offense to be twice put in jeopardy."

The Fifth Amendment of the United States Constitution makes the same provision but adds the words "of life or limb."

The double jeopardy provision of the Fifth Amendment of the United States Constitution 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); People v McPherson, 21 Mich. App. 385 (1970); People v Sharp, 9 Mich. App. 34 (1967). Benton, supra, is retroactive in its effect. Ashe v Swenson, 397 U.S. 436; 90 S. Ct. 1189; 25 L. Ed. 2d 469 (1970); North Carolina v Pearce, 395 U.S. 711; 89 S. Ct. 2072; 23 L. Ed. 2d 656 (1969).

There are two elements of the constitutional interdict: (1) There must be successive subjection to "jeopardy" and (2) in each instance the offense must be the same. People v Wilson, 6 Mich. App. 474 (1967). The second prosecution must be for the identical act and crime both in law and fact for which the first prosecution was instituted. People v Beverly, 247 Mich. 353 (1929). In determining the identity of the offense, one act may constitute several offenses. Unless the offense is a necessary element in and part of another, an acquittal or conviction of one is not a bar to prosecution for the other. People v Wilson, supra.

In the instant case, the crime of kidnapping is not identical in law or fact with the crimes of felonious assault or rape. The elements of kidnapping do not prove the crimes of felonious assault or rape. Thus, the defendant's conviction of kidnapping does not prevent the prosecution from prosecuting the defendant for the crimes of felonious assault or rape.

II

It is necessary to realize that the actions of the prosecutor in prosecuting the defendant and the actions of the trial courts involved in exercising their jurisdiction over the defendant are authorized by law. The crime of kidnapping occurred within Wayne County, but outside the corporate limits of the City of Detroit. Therefore, the Wayne County Circuit Court had jurisdiction over that offense. People v Rosa, 382 Mich. 163 (1969); People v Jackzo, 206 Mich. 183 (1919). The crimes of felonious assault and rape were committed within the corporate limits of the City of Detroit. As such, the Detroit Recorder's Court had exclusive jurisdiction over those offenses. MCLA 726.11; MSA 27.3561; People v Rosa, supra. Thus, the prosecutor acted properly in prosecuting the defendant in the respective trial courts and they properly exercised their jurisdiction.

However, the majority opinion asserts that these rules of jurisdiction are procedural rules that must be subordinated to a constitutional right not to be twice put in jeopardy for the same offense. Cf Gouled v United States, 255 U.S. 298, 313; 41 S. Ct. 261, 266; 65 L. Ed. 647, 654 (1921). A reading of Gouled indicates that the rule involved therein was indeed merely a rule of procedure. However, in the instant case, the rule involved is one of jurisdiction. As far back as Langdon v Wayne Circuit Judges, 76 Mich. 358 (1889), it has been held that jurisdiction, when applied to the courts, is the power to hear and determine a cause or matter. Ward v Hunter Machinery Co, 263 Mich. 445 (1933), pointed out that jurisdiction lies at the foundation of all legal adjudications, and it means the authority which the court has to hear and determine a case. Again in People v Joseph, 384 Mich 24 (1970), the Supreme Court reiterated the rule that jurisdiction deals with the service of process and the power of the court to act in the matter. Thus, it is clear that jurisdiction is not merely a rule of procedure but rather, it is the very power and authority necessary for the court to act. Gouled v United States, supra, is therefore distinguishable on the facts and not here controlling. The jurisdiction of the trial courts here involved is therefore not subordinate to the alleged constitutional right involved on the basis of Gouled v United States, supra.

III

The legislature has the constitutional right to create any court and to vest it with whatever jurisdiction it pleases, provided only that it shall be inferior to the Supreme Court. Detroit v Wayne Circuit Judges, 233 Mich. 356 (1925). Only the Supreme Court has the power to modify the provisions of a legislative enactment in the exercise of its power "by general rules [to] establish, modify, amend, and simplify the practice and procedure in all courts". Const 1963, art 6, § 5; Pressley v Wayne County Sheriff, 30 Mich. App. 300 (1971). Therefore, this Court is without power or authority to modify the jurisdiction of the trial courts here involved by adopting the "same transaction" test.

IV

There are two major shortcomings with the adopted "same transaction" test of the majority opinion. The first problem concerns the definition of "transaction." "Any sequence of conduct can be defined as an `act' or a `transaction.' An act or transaction test itself determines nothing." Notes and Comments, Twice in Jeopardy, 75 Yale L J 262, 276 (1965). For instance, the majority has concluded that the three identifiable crimes occurred in one continuous sequence to achieve the one purpose of sexual intercourse with the victim. None of these crimes, they state, can be defined as a separate and independent transaction. However, at the same time that the majority so concludes, the legislature has defined each of the acts involved as a separate and independent crime. Thus, it is clear that the majority opinion does not indicate any guidelines by which to determine what the "same transaction" would be.

The second problem involved concerns who is to make the determination whether the crimes committed by the defendant are all a part of the "same transaction" and what the standard of review on the appellate level is to be. The majority opinion indicates that the prosecutor and the trial court are responsible for making the determination. Yet, the majority opinion did not review any findings of the trial court or the prosecutor, and they did not establish any standard of review of any decisions made by the trial court or prosecutor. In fact, the majority made their own findings of fact after all the evidence was completed in both trials, and then made their own conclusions of law thereon. There is no authority cited whereby this Court has the power or the authority to hear criminal cases de novo.

V

Even if the "same transaction" test could be properly adopted, there still is no basis for reversing the defendant's convictions under the facts of the instant case. The defendant was arraigned in the Detroit Recorder's Court on the charge of rape on February 21, 1968. He was arraigned in Inkster, Michigan, on February 28, 1968, on the charge of kidnapping. On March 4, 1968, the preliminary examination on the rape charge was held in Detroit Recorder's Court and the preliminary examination on the charge of kidnapping was held in Inkster on March 6, 1968. On none of these occasions did the defendant ask for consolidation of the charges against him, although he definitely knew of all the charges and he had an opportunity to ask for such consolidation. There may be many situations where a defendant may not desire consolidation of charges against him because of their possible prejudicial effect. Because the "same transaction" test is for the benefit of the defendant, he should be required to exercise an option as to whether he wants charges against him consolidated before the first trial commences. Because the defendant waited until after the first trial before he raised the issue of double jeopardy and asserted the new rule of law now adopted by the majority, he should not be allowed to take advantage of his delay in raising his objections.

VI

Assuming without determining that the "one transaction" rule set forth in the majority opinion should be applied to the facts in the instant appeal, it is evident that the Recorder's Court for the City of Detroit would be the only court that could have jurisdiction of all three of the charged offenses, i.e., the rape and felonious assault crimes were committed wholly in the City of Detroit, thus precluding jurisdiction being in the Circuit Court for Wayne County, People v Rosa, supra. Certainly, in applying any "single transaction" rule requiring all charges to be contained in a single indictment or information, such rule should not in all fairness to the people of the State of Michigan permit a court that has jurisdiction of only one of the three committed offenses to preempt a legal proceeding in another court that has exclusive jurisdiction of two of the three charges and concurrent jurisdiction over the remaining charge, by reason of the fact that a part of the kidnapping extended into the City of Detroit. Further, the proceedings and consequent jurisdiction in the Recorder's Court preceded in time by several days the proceedings in the Wayne Circuit Court. The Recorder's Court in criminal cases has the same jurisdiction as a circuit court in like cases. People v Rosa, supra; MCLA 726.11; MSA 27.3561. The Detroit Recorder's Court obtained jurisdiction first. The subsequent Wayne Circuit Court criminal action did not oust the Recorder's Court of its prior lawful jurisdiction. People v Hanrahan, 75 Mich. 611 (1889). Although the issue is not before us, if one of the two court actions must be set aside, that of the circuit court must be that one.

I vote to affirm the convictions in the Detroit Recorder's Court.

NOTES

[1] Defendant bases much of his argument on People v Otis Adams, 34 Mich. App. 546 (1971), which held that a significantly independent asportation is required to constitute forcible kidnapping under MCLA 750.349; MSA 28.851. Defendant argues there was no asportation of significant independence in this case to constitute kidnapping and there is no difference between what he was tried for at his first trial and what he was tried for at his second trial. Adams deals with the validity of a kidnapping charge. For purposes of this appeal we must assume that the defendant's kidnapping conviction was valid. We express no opinion as to whether there was a significantly independent asportation to justify the kidnapping conviction.

[2] See, e.g., Kirchheimer, The Act, the Offense and Double Jeopardy, 58 Yale L J 513 (1949); Comment, Ashe v Swenson: Collateral Estoppel, Double Jeopardy, and Inconsistent Verdicts, 71 Colum L Rev 321 (1971); Comment, Double Jeopardy, Vandercomb to Chicos — Two Centuries of Judicial Failure in Search of a Standard, 45 J Urban Law 405 (1967); Comment, Twice in Jeopardy, 75 Yale L J 262 (1965).

[3] The Federal courts have followed the same evidence test. See, e.g., United States v Buonomo, 441 F2d 922 (CA 7, 1971); Smith v Cox, 435 F2d 453 (CA 4, 1970); United States v Wilshire Oil Co of Texas, 427 F2d 969 (CA 10, 1970) The rule has not been without its critics in the Federal system. See United States v Rollerson, 145 US App DC 338; 449 F2d 1000 (1971); United States v Mirra, 220 F Supp 361 (SD NY, 1963).

[4] In Williams v Oklahoma, 358 U.S. 576; 79 S. Ct. 421; 3 L. Ed. 2d 516 (1959), and Ciucii v Illinois, 356 U.S. 571; 78 S. Ct. 839; 2 L. Ed. 2d 983 (1958) the Supreme Court held that reprosecutions for several crimes arising out of the same criminal transaction did not violate a defendant's right to due process of law. In Benton v Maryland, 395 U.S. 784; 89 S. Ct. 2056; 23 L. Ed. 2d 707 (1969), the Court held that the Fifth Amendment applied to the states through the Fourteenth Amendment. The Court has not decided this problem as a matter of Fifth Amendment law since Benton was decided.

[5] Harris v United States, 359 U.S. 19; 79 S. Ct. 560; 3 L. Ed. 2d 597 (1959); Blockburger v United States, 284 U.S. 299; 52 S. Ct. 180; 76 L. Ed. 306 (1932); Ebeling v Morgan, 237 U.S. 625; 35 S. Ct. 710; 59 L. Ed. 1151 (1915). See Abbate v United States, 359 U.S. 187; 79 S. Ct. 666; 3 L. Ed. 2d 729 (1959) (separate opinion, Brennan, J.); Ashe v Swenson, 397 U.S. 436; 90 S. Ct. 1189; 25 L. Ed. 2d 469 (1970) (concurring opinion, Brennan, J.).

[6] In the only recent case which posed this question to the Supreme Court as a matter of Fifth Amendment law, the Court vacated the second conviction based on the Justice Department's policy of avoiding separate trials involving multiple crimes arising in a single transaction. Petite v United States, 361 U.S. 529; 80 S. Ct. 450; 4 L. Ed. 2d 490 (1960). The Justice Department concurred in this disposition of the case.

[7] See, e.g., State v Richardson, 460 S.W.2d 537 (Mo, 1970); Walton v State, 448 S.W.2d 690 (Tenn Crim App, 1969); People ex rel Micieli v Webster, 269 App Div 887; 56 NYS2d 155 (1945); Burnam v State, 2 Ga App 395; 58 S.E. 683 (1907); State v Bell, 205 NC 225; 171 S.E. 50 (1933). The test is not always applied consistently. Compare Burnam v State, supra, with Harris v State, 193 Ga 109; 17 SE2d 573 (1941). Compare State v Cooper, 13 NJL 361 (Sup Ct 1833) with State v Hoag, 35 NJ Super 555; 114 A2d 573 (1955), aff'd, 21 NJ 496; 122 A2d 628 (1956), aff'd, 356 U.S. 464; 78 S. Ct. 829; 2 L. Ed. 2d 913 (1958).

Some states have reached the same result by statutes which forbid multiple trials and punishment for crimes arising during a single transaction. See, e.g., State v Corning, 289 Minn 383; 184 NW2d 603 (1971); Smith v State, 486 P2d 770 (Okla Crim App, 1971); In re Henry, 65 Cal 2d 330; 54 Cal Rptr 633; 420 P2d 97 (1966).

[8] The Alaska formulation focuses on the quality of differences, if any, between the separate statutory offenses, as such differences relate to the basic interests sought to be vindicated or protected by the statutes, 479 P2d 302, 312. For other variations of the test see, Kirchheimer, supra, note 2; Comment, 43 Notre Dame Lawyer 1017 (Symposium, 1968).

[9] See Irby v United States, 390 F2d 432, 435 (1967) (concurring opinion, Leventhal, J.).

[10] One reason for the original formulation of the same evidence test was the strictness of common law pleading and amendment procedures. Strict application of the test allowed substance to govern over form where the state's initial prosecution was barred by a technical deficiency in the information which could not be cured by amending it. Liberal procedural rules have now cured these problems. Coupled with the burgeoning number of crimes which legislatures have created, the same evidence test, contrary to its original intent, now allows form to govern substance. See Judge LEVIN'S dissent in People v Noth, 33 Mich. App. 18, 29-36 (1971).

[11] It also should be made clear that we do not decide what would happen where defendant, while perpetrating his criminal activity, attempts to accomplish objectives not within his original contemplation. We only decide that a defendant who commits several crimes while attempting to achieve a single criminal objective may be tried only once for crimes committed during that single transaction in the furtherance of that objective.