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.
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.
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.
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).
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. 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. The cases in which the test has been used all involved multiple count convictions at a single trial. In the only cited case dealing with the problem presented by the instant case, the Court applied a transactional test. 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 Federal courts have followed the same evidence test. See, e.g., United States v. Buonomo, 441 F.2d 922 (CA 7, 1971); Smith v. Cox, 435 F.2d 453 (CA 4, 1970); United States v. Wilshire Oil Co of Texas, 427 F.2d 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 F.2d 1000 (1971); United States v. Mirra, 220 F. Supp. 361 (SD NY, 1963).
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.
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.).
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.
The same transaction test has been used in several jurisdictions. One form of the test has recently been adopted in Alaska. Whitton v. State, 479 P.2d 302 (Alas, 1970). 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.
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 N.Y.S.2d 155 (1945); Burnam v. State, 2 Ga. App. 395; 58 S.E. 683 (1907); State v. Bell, 205 N.C. 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 S.E.2d 573 (1941). Compare State v. Cooper, 13 N.J.L. 361 (Sup Ct 1833) with State v. Hoag, 35 N.J. Super. 555; 114 A.2d 573 (1955), aff'd, 21 N.J. 496; 122 A.2d 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 N.W.2d 603 (1971); Smith v. State, 486 P.2d 770 (Okla Crim App, 1971); In re Henry, 65 Cal.2d 330; 54 Cal.Rptr. 633; 420 P.2d 97 (1966).
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 P.2d 302, 312. For other variations of the test see, Kirchheimer, supra, note 2; Comment, 43 Notre Dame Lawyer 1017 (Symposium, 1968).
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.
See Irby v. United States, 390 F.2d 432, 435 (1967) (concurring opinion, Leventhal, J.).
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. Even where, as here, the crimes are committed in different jurisdictions within the state, the state is still able to vindicate its interests.
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).
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. By employing this test we allow substance to govern form and give meaning to a constitutional guarantee which cannot be ignored.
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.
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.