The Fifth Amendment to the Constitution of the United States provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb ’ ’. This has become commonly known as a prohibition against double jeopardy and is applicable to the States through the Fourteenth Amendment (Benton v. Maryland, 395 U. S. 784). The protection of the individual against double jeopardy is also safeguarded by our own State Constitution (N. Y. Const., art. I, § 6); and, where a defendant in a criminal action will be put in double jeopardy by a second prosecution of the same offense, a writ of prohibition will issue to bar the second prosecution (Matter of Kraemer v. County Court of Suffolk County, 6 N Y 2d 363; Matter of Ferraro v. Supreme Court, County of Queens, 36 A D 2d 841). The facts here set forth compel the issuance of a writ of prohibition.
The two-count Federal indictment under which the petitioners were previously tried charged a violation of section 1952 of title 18 of the United States Code, also known as the Travel Act, and 'a conspiracy to commit the same. In essence, the Travel Act makes it a Federal crime to travel, or use any facility, in- interstate or foreign commerce, to promote any “ unlawful activity ”. The term “ unlawful activity ” is defined to include bribery in violation of the laws of the State in which committed. The Federal indictment here alleged a conspiracy to use and unlawful .use of a facility in interstate and foreign commerce, to wit, the telephone, with intent to promote and carry on an unlawful activity, to wit, bribery in violation of sections 200.00 and 200.10 of the New York .State Penal Law. Thus, because of the very nature and language of the Travel Act, the Federal indictment necessarily charged, and, more important, the evidence upon the Federal trial necessarilv New York State Penal Law. ' Federal prosecution .was a State crime, .which allegedly became a Federal offense only because the telephone was used to aid in committing it, the calls, themselves, not constituting any independent crime. The subsequent reversal of the petitioners’ convictions and the dismissal of the indictment being based solely upon the failure to prove a crime against the United States, ’ it is manifest that the instant ¡State indictment now charges the ‘ ‘ same pífense ’ ’ as that upon which the petitioners were tried and convicted in the Federal District 'Court. Since proved, the express violation *475any further prosecution of1 the former .will subject the petitioners to double jeopardy in violation of their constitutional and statutory rights ,(IT. S. Const., 5th Arndt.; N. Y. Const., art. I, § 6; CPL 40.20, subd. 1), an order in the nature of prohibition should issue. The exception to the bar against successive prosecutions embraced iby the majority herein is simply inapplicable to the peculiar facts of this case.
Fundamental fairness demands that a prohibition order issue. The bar against successive prosecutions for the same act dr criminal transaction, much less for the same offense, is the general rule in this 'State, not the exception (CPL 40.20). It is, of course, undisputed that the State and Federal indictments are based upon the same act or criminal transaction and it was conceded, upon oral argument, that the evidence upon the .State trial will be almost identical to that presented upon the Federal trial. The great power of the State and Federal Governments, respectively, to compel an individual to defend himself before the bar of criminal justice does not legitimize the old adage: If at first you don’t succeed, try, try again. The petitioners have already once been forced to defend themselves on the very charge now alleged in the State indictment. That was a lengthy and, no doubt, expensive trial. Now, they are faced with another lengthy and expensive trial in a State court and, perhaps, further appeals, too. To .permit this second prosecution to proceed would be totally unjust, especially as, to use the words of the Second 'Circuit Court of Appeals, the Federal Government, itself, “ set up ” this crime by “ causing the bribery of a state assistant district attorney by a scheme which involved lying to New York police officers and perjury before New York judges and grand jurors ” (United States v. Archer, 486 F. 2d 670, 672).1 The petitioners have a constitutional right “not to be harassed, or perhaps even impoverished, by successive prosecutions for the same offense ” (Matter of Ferlito v. Judges of County Court, Suffolk County, 39 A D 2d .17, 21, affd. 31 N Y 2d 416).
Shapibo, Acting P. J., and Cohalan, J., concur with Mundeb, J., Shapibo, Acting P. J., with a separate opinion, in which Cohalan and Mundeb, JJ., concur. Chbist, J., dissents and votes to grant the petitions, with an opinion, in which Benjamin, J., concurs.
Petitions dismissed on the merits, without costs.