(concurring): I concur in the views expressed in the opinion of the court on the subject of waiver of former jeopardy. I also concur entirely in the view that the question of waiver of former jeopardy is the only issue which the court is compelled to determine in this appeal. In view, however, of the closely related subject of identity of offenses, and also' by reason of the fact that appellant under the judgment rendered is required to serve the three sentences consecutively, I prefer to state frankly some of my views on the subject of identity of offenses.
*678At the outset it candidly should be conceded that on the general subject of identity of offenses the decisions are in great, if not hopeless, conflict. Touching, however, the factual situation presented in the instant case, it is my opinion the weight of modern authority is that three separate and distinct offenses were committed by the same act of culpable negligence. Irrespective, however, of where the balance of the weight of authority may rest, I am persuaded the better reasoning compels that view.
With respect to the subject of second jeopardy it is clear that confusion of thought and hence conflict in decisions has resulted from a failure to properly distinguish between the act — in this case the culpable negligence — and the completed offense — in this case the killing of an individual. The constitution does not prohibit putting a person in jeopardy twice for the same act. It gives the citizen immunity from being put in jeopardy twice for the same offense. Two things, not one, are necessary to constitute the offense in this case. The first is the act of culpable negligence. The second is the killing of a person. Until the second thing occurs, no offense has been committed. The correct principle was accurately stated in The People v. Allen, 368 Ill. 368, 14 N. E. 2d 397, as follows:
“Our constitution commands that no person shall be twice put in jeopardy for the same offense. A distinction obtains between an offense and the unlawful act out of which it arises. The act is the cause of the offense which, conversely, is the result of the act. The constitutional inhibition is directed to the identity of the offense and not to the act.” (p. 378.)
The test of identity of offenses is whether proof of the facts alleged in one count will necessarily constitute proof of the offenses charged in another count, or counts, of the information. (The People v. Allen, supra.) Manifestly proof of the death of “A” charged in count one .would not necessarily constitute proof of the death of “B” or “C” charged in counts two and three. It follows that no verdict or plea of guilty on count one would support a judgment of sentence on the offense charged in counts two or three. No acquittal on the charge contained in count one for the killing of “A” would necessarily constitute an acquittal for the killing of “B” or “C,” charged in counts two and three.
In State v. Ragan, 123 Kan. 399, 256 Pac. 169, this court, following its former decision in State v. Schmidt, 92 Kan. 457, 140 Pac. 843, held:
“In criminal cases the ultimate test applied in determining the validity of *679a plea of former conviction or former acquittal is identity of offenses, and it is not necessarily decisive that the two offenses may, have some material fact in common.” (Syl. ¶ 2.)
In the course of the opinion in the Ragan case the court stated:
“If the facts which will convict upon the second prosecution would not necessarily have convicted on the first, then the first will not be a bar to the second, although the offense charged may have been committed under the same state of facts. (8 R. C. L. 143, 144.) A putting in jeopardy for one act is not a bar to a prosecution for a separate and distinct act, merely because they are so closely connected in point of time that it is impossible to separate the evidence relating to them on the trial for the one of them first had. Consequently a plea of former jeopardy will not be sustained where it appears that in one transaction, two distinct crimes were committed. (8 R. C. L. 151.)” (p. 401.)
See, also, State v. Finney, 141 Kan. 12, 25, 40 P. 2d 411.
The views heretofore stated are in harmony with well-reasoned decisions and carefully guarded statements of principle as reflected by opinions in the following cases dealing with automobile collisions: (State v. Fredlund, 200 Minn. 44, 273 N. W. 353, 113 A. L. R. 215 [1937], Anno. 113 A. L. R. 222; Fay v. State, 62 Okla. Cr. 350, 71 P. 2d 768 [1937]; The People v. Allen, supra, [1938]; Fleming v. Commonwealth, 284 Ky. 209, 144 S. W. 2d 220 [1940]). This list of cases is not intended to be exhaustive. In the cases cited are contained many decisions from the states of California, Ohio, South Carolina, Vermont and perhaps a few other states which have applied, the same principle to similar factual situations. In the Minnesota case, it was held:
“Before a defendant may avail himself of the plea of former jeopardy it is necessary for him to show that the present prosecution is for the identical act and that the crime both in law and in fact was settled by the first prosecution. (Emphasis supplied.)
“It is the identity of the offense, and not of the act, which is referred to in the constitutional guarantee against putting a person twice in jeopardy. Where two or more persóns are injured in their persons, though it be by a single act, yet, since the consequences affect, separately, each person injured, there is a corresponding number of distinct offenses.” (Syl. HU 2, 5.)
In the Illinois casé it was held:
“A distinction obtains between an offense and the unlawful act out of which it arises, it being possible that two or more distinct offenses may grow out of the same transaction or act, and the rule that a person cannot be twice put in jeopardy for the same offense has no application where two separate and distinct crimes are committed by one and the same act, as the constitutional *680inhibition is directed to the identity of the offense and not to the act.” £Syl. ¶ 2.)
In the course of the Minnesota opinion it was stated:
“In view of present-day conditions, where murderous gangs by means of high-powered machine guns, sawed-off shotguns, and the like often cause death to our citizens, and where great bodily injury or death to many may be the result of a single discharge of such weapons, it would indeed be a sad condition of affairs were we to give a narrow construction to the state’s right to protect its people. The maxim for which defendant contends was not designed to foster crime but to protect the accused from double jeopardy where in point of jact the criminal act caused a particular individual the harm against which the law is directed. Obviously, we think, it was not intended to be a shield for the murderer behind which he may hide. Other illustrations can easily be made. Thus one might poison a well from which many persons might die because the water therefrom was used by many persons residing in that locality. - One might throw a bomb into a large crowd of people and thereby injure many and possibly kill several. Is it reasonable that such well poisoner and bomb thrower should be held immune’ to prosecutions for the death of his other victims because on the trial of one so killed he was acquitted? The answer is obvious. No reasonable person would be likely to consider such a result possible.” (p. 54.)
So in the instant case the culpable negligence with which defendant was charged in propelling her vehicle into the vehicle of another, if established — and it was by her plea — disclosed an utter disregard for the life of each and every individual who occupied the latter car. No one would contend the death of each of the three persons caused by appellant’s single act of culpable negligence would form the basis of only one civil liability and that it would constitute only one cause of action for damages. No one would contend that a money judgment recovered from appellant by the administrator of the estate of one of the deceased persons would constitute a bar to a similar action by the administrators of the estates of other persons who were killed instantly by means of the same identical negligent act. (State v. Fredlund, supra, p. 50.) No valid basis exists, it seems to me, for declaring that the death of three persons by the same negligent act constitutes three separate and distinct causes of action for civil liability but only one offense against society. Three separate and distinct rights to live have been invaded and destroyed. Three wrongs, three separate and distinct offenses, have been committed. In the Illinois case the principle was aptly stated thus:
“A conviction or acquittal under one charge is a bar to a prosecution for another crime growing out of the same act only where the offense for which *681the accused was tried and acquitted or convicted is but one of the degrees of the same offense for which it is later attempted to put him on trial. (People v. Fox, supra.) In order for one prosecution to be a bar to another it is not sufficient to show that the act is the same, but it must be shown that the offense, also, is the same in law and in fact.” (p. 380.)
Appellant contends the following Kansas cases are authority for the view that only one offense was committed or that they at least tend to support that view: (State v. Taylor, 138 Kan. 407, 26 P. 2d 598; State v. Phelps, 153 Kan. 337, 110 P. 2d 755.) Some other similar decisions of our own might be cited. For my present purposes it is unnecessary to prolong this opinion by a detailed analysis of the facts involved in the various Kansas cases. In my opinion an analysis of our decisions will disclose this court has not, definitely aligned itself with either view insofar as the subject of identity of offenses in this exact type of action is concerned. It has, however, definitely adopted the well-established general rule relative to the test of identity of offenses as previously indicated herein. An application of that principle to the facts in this case, in my opinion, clearly requires the conclusion that three separate and distinct offenses were charged in the instant information. I am persuaded appellant pleaded guilty to counts which charged three separate and distinct offenses. It follows the defense of former jeopardy would have been of no avail even if effectually raised and consisfp.nf.lv maintained.