(specially concurring).
I concur with the majority opinion, and consider it correct under present New Mexico law, but in view of the result, add the following comments:
State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975), discusses the various tests that can be applied in the determination of double jeopardy, and include “collateral estoppel,” “necessarily included offenses,” “same offense” or “same evidence,” and “same transaction” tests. However, Justice Sosa, in a concurring opinion, recommends the adoption of an exception to the “necessarily included offense” rule: “If the court does not have jurisdiction to try the crime, double jeopardy cannot attach. Double jeopardy requires that a court have sufficient jurisdiction to try the charge.” 88 N.M. 333 at 337, 540 P.2d 813 at 817. I agree with this approach to the jeopardy question and do not consider Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) reh. denied 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 79 (1970), to bar application of this test.
In Waller, the issue was whether the municipality and State could charge the same person with the identical crime on a theory of separate sovereigns. The opinion is premised on the assumption that the felony charge was based on the same acts which were the violation of the city ordinance and on the assumption that the ordinance violations were included offenses of the felony charge. Such an analysis supports the decision herein, but fails to address the jurisdiction issue. While some courts have held that Waller precludes discussion of the jurisdictional issue, see State v. Trivisonno, 112 R.I. 1, 307 A.2d 539 (R.I. 1973); Benard v. State, 481 S.W.2d 427 (Tex.Cr.App.1972); others have considered the issue to be separate from that of “necessarily included offenses.” See, e. g., People v. Williams, 61 Mich.App. 642, 233 N.W.2d 122 (1975); State v. Arnold, 115 Ariz. 421, 565 P.2d 1282 (1977); People v. Mendoza, 190 Colo. 519, 549 P.2d 766 (1976); People v. Pinyan, 190 Colo. 304, 546 P.2d 488 (1976); Commonwealth v. Lovett, - Mass.-, 372 N.E.2d 782 (1978); and State v. Ramirez, 83 Wis.2d 150, 265 N.W.2d 274 (1978).
Mr. Justice Brennan, concurring in Waller and Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), decided the same day, refers to “exceptions to the ‘same transaction’ rule” in both opinions. See Waller v. Florida, 397 U.S. 387, at 396, 90 S.Ct. 1184, at 1189, 25 L.Ed.2d 435 and Ashe v. Swenson, 397 U.S. 436, at 453, n. 7, 90 S.Ct. 1189, at 1199, n. 7, 25 L.Ed.2d 469. He reads the Double Jeopardy Clause to require joinder in one trial of all charges arising from a single “criminal act, occurrence, episode, or transaction,” except in most limited circumstances. Relying on Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912), he finds such a circumstance where a crime is not completed or not discovered before the commencement of a prosecution for other crimes arising from the “same transaction” and believes that here, a rule should be made to permit a separate prosecution. Further, he states “[ajnother exception would be necessary if no single court had jurisdiction of all the alleged crimes.” 397 U.S., at 453, n. 7, 90 S.Ct., at 1199, n. 7.
That exception should be available in the instant case where the district court did not have jurisdiction over the municipal charges and the municipal court did not have jurisdiction over the homicide charge. Reason and logic do not support any other rule. See State v. Tanton, supra; State v. Goodson, 54 N.M. 184, 217 P.2d 262 (1950).