dissenting.
My own views on the issue presented by this case were expressed when I wrote for the Court of Appeals in Ashe v. Swenson, 399 F. 2d 40 (CA8 1968), reversed and remanded, 397 U. S. 436 (1970). I am not persuaded as to the rightness of the Court’s imposing in that case— as a Fifth Amendment-Fourteenth Amendment imperative — the concept of collateral estoppel upon a state *58criminal proceeding. I could have understood a flat overruling of Hoag v. New Jersey, 356 U. S. 464 (1958), and of Ciucci v. Illinois, 356 U. S. 571 (1958), despite the interim appearance of Benton v. Maryland, 395 U. S. 784 (1969). But overruling those two cases was a step the Court, for reasons that escape me, refused to take or felt it could not take.
Neither am I persuaded by the “single frolic” or “one criminal episode” or “same transaction” theory espoused by the Justices in concurrence in Ashe v. Swenson, 397 U. S., at 448-460. That approach would place multiple but separate-shot murders under the protective umbrella of double jeopardy. I cannot subscribe to reasoning that would necessarily produce a result of that kind.
I therefore dissent.