(concurring).
While collateral estoppel under guarantee against double jeopardy (United States Constitution, Fifth Amendment, and Louisiana Constitution, Article I, Section 9) may be a valid plea at some point in this proceeding, the merit of that plea cannot now be determined. Double jeopardy per se cannot be pleaded since the two offenses charged in the different jurisdictions (city court, district court) are not the same and do not require the same elements. See Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). Although the offense charged here is a separate and distinct offense from the one of which the defendant has been acquitted, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), may apply if on the trial it is established that the essential elements used for conviction here are identical with the elements used in the prior charge which resulted in an acquittal. Double jeopardy may be pleaded at any time, even after conviction, but our Code of Criminal Procedure Articles 594 and 859 and the redactors’ comments state that it can be pleaded only once. Our denial of the plea here, however, on this record will not bar a consideration of the plea based upon a different record, i. e., the trial record when the latter is necessary for the proper determination of the validity of the plea. Simpson v. Florida, 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549 (1971).
I respectfully concur.