(dissenting in part).
I dissent from that portion of the main opinion which negatives the applicability and rationale of the Supreme Court decisions in Waller and Ashe to the circumstances of this case.
To me, it seems clear that Bell has been twice prosecuted by a single sovereign and twice convicted for but a single substantive crime, the unlawful possession of a pistol. The evidence concerning the factual possession and the circumstances of such possession was identical in each prosecution. In simple summation and as reflected in the majority opinion, Bell had a pistol in his pocket which he withdrew and threw upon the back seat of his car when approached by officers. This evidence resulted in his conviction for carrying a concealed weapon in violation of the municipal ordinance. Admittedly the element of concealment was necessary to support this conviction. Bell was subsequently convicted of possession of a pistol having previously been convicted of a felony (burglary) in violation of Kansas state law. Proof of concealment was not required.
Since Bell was convicted rather than acquitted at the first prosecution the collateral estoppel doctrine enunciated in Ashe has no direct compulsion in the subject case. However, in Ashe the Supreme Court indicated that the evidentiary record of Ashe’s first trial established that his acquittal was the result of the jury’s rejection of the quality of the prosecution’s evidence that was offered to establish Ashe’s presence at the robbery. The court then reasoned that, since the acquittal established the non-participation of Ashe in the robbery, the constitution prohibited a further effort *794by the prosecution to present a stronger case on this determinative issue in the second trial. So, and admittedly I now rationalize, had Bell been acquitted of the municipal offense I would consider Ashe to be potentially dispositive of the instant case. Acquittal would have rejected the prosecution’s proof of concealed possession of the weapon under the particular circumstances that we here consider. Acquittal would have been fatal to the second prosecution unless it could be said that the jury rejected only the element of concealment, thus crediting the officer’s testimony in part and discrediting it in part. Such a view would seem judicially unrealistic to me and a resort to technicality which the rationale of Ashe rejects. In any event, I reject the emphasis in the majority opinion of the concealment element as negativing the existence of double jeopardy and point to Ashe as firmly establishing that the substance of dual prosecutions controls the application of the constitutional prohibition against double jeopardy and its corollary termed collateral estoppel.
I must, of course, agree with the majority that the Supreme Court decision in Waller is not dispositive here. But Waller and the case at bar are not complete strangers. Each case considers the application of double jeopardy to successive prosecutions by a municipality and a state arising from the same acts of the accused. However the offenses considered in Waller were misdemeanors of destroying public property and breach of the peace with a subsequent prosecution for grand larceny. The High Court held the dual prosecutions to present the potential of double jeopardy but understandably left open to the Florida state court the initial determination of whether the several offenses and prosecutions did constitute double jeopardy under current guidelines. But in the case at bar the connection between the subject prosecutions is undisputably clear. The substance of the two prosecutions is the same, the proof of that substance is identical, and the criminal act is identical. The only difference is one of status not substance — proof of Bell’s previous conviction was required in the state prosecution. I cannot consider this entirely independent factor as one negativing the application of a constitutional right. The hard fact remains that the procedure followed by the state allowed a dry run and, of course of much more importance, that Bell has been forced to serve two sentences not only for the same act but under what I must term to be the same charge. I would grant him relief.