dissenting.
I respectfully dissent from the majority opinion because the prosecution of Smith for murder after his acquittal of federal offenses is not prohibited by either the Kentucky Constitution, the federal constitution or by K.R.S. 505.050.
Smith sought a writ of prohibition permanently preventing the Pike Circuit judge from trying him for allegedly murdering the truck driver. Smith claimed that double jeopardy prevented his trial in state court for murder because it arose out of the same course of conduct as the federal charge of endangering the safety of a person in a motor vehicle while attempting to disable the motor vehicle. Smith was acquitted of the federal charge. The Court of Appeals refused to grant prohibition and their decision was correct.
Both federal and state law, without violating any prohibition against double jeopardy, provide that a defendant may be separately prosecuted for several offenses arising out of a single course of conduct as long as the proof of the violation of each criminal statute requires the proof of an additional fact which the other does not. Cf. Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Wager v. Commowealth, Ky., 751 S.W.2d 28 (1988); Jordan v. Commonwealth, Ky., 703 S.W.2d 870 (1985); Wilson v. Commonwealth, Ky., 695 S.W.2d 854 (1985); Polk v. Commonwealth, Ky., 679 S.W.2d 231 (1984); K.R.S. 505.020 and K.R.S. 505.050.
Smith was acquitted of having violated 18 U.S.C. § 33, destruction of motor vehicles or motor vehicle facilities. The alleged violation of the federal statute resulted in a death and 18 U.S.C. § 34 would have permitted the imposition of the death penalty or life imprisonment. K.R.S. 507.-020, the Kentucky murder statute, would require only proof of the defendant’s intentional conduct resulting in the death of a person.
Clearly proof of death is not necessary to a conviction under the federal law. There need be only proof of an intent to endanger the safety of a person in the motor vehicle while attempting to or successfully, damaging or disabling the vehicle. K.R.S. 507.-020 requires no proof regarding an attempt to damage motor vehicles. Consequently, because each statute requires proof of a fact which the other does not, Smith’s acquittal under the federal law does not exempt him from a subsequent murder prosecution under Kentucky law.
Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) is not applicable because the second indictment differs from the first in material facts other than the identity of the victim. The fact that the federal indictment may have listed a criminal act such as the alleged murder, proof of which was not required to prove the federal charge, does not bring such criminal conduct within the prohibition against double jeopardy. Polk, supra.
Obviously murder and attempted destruction of a motor vehicle and the endangerment of a passenger are not the same offense and do not involve proof of the same criminal elements. Collateral estop-pel of the facts in the federal prosecution does not bar a prosecution for murder under Kentucky law.
I would affirm the decision of the Court of Appeals denying prohibition and allow the Kentucky prosecution to proceed to a jury determination.
VANCE, J., joins in this dissent.