concurring.
I concur in the result reached. I am bound by the numerosity of opinions in this circuit and elsewhere which construe Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), as barring a double jeopardy claim under the dual sovereignty doctrine.
Upon further reflection, however, I am not convinced that subsequent decisions1 of the Supreme Court have not fully eroded Bartkus and Abbate and that the double jeopardy defense should be sustained under the facts of this case. Recent state court decisions have explored the question of successive federal-state prosecutions for the same crime and have found the underpin*843nings of Bartkus and Abbate unconvincing. See People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976); Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971); and State v. Fletcher, 22 Ohio App.2d 83, 259 N.E.2d 146 (1970), reversed, 26 Ohio St.2d 221, 271 N.E.2d 567 (1971), cert. denied sub nom., Walker v. Ohio, 404 U.S. 1024, 92 S.Ct. 699, 30 L.Ed.2d 675 (1972).
The facts are significant here; they eloquently plead the petitioner’s case. They serve to demonstrate the fallacy in barring the claim of double jeopardy under the dual sovereignty doctrine. The interests sought to be protected by the federal law are not substantially different than those sought to be protected by the state law. The result of applying the dual sovereignty doctrine in this case is that the interests of the state and federal government are amply protected and the interests of the individual are ignored. The double jeopardy clause was written for the protection of the individual not the state or federal government.
In the instant case around noon on June 11, 1970, the Laddonia State Bank was robbed of approximately $13,000 by two armed robbers wearing stocking masks. The first robber forced a bank employee to fill a sack with money from the cash drawer, while the second robber covered him from the lobby. After three bank employees tentatively identified the petitioner as strongly resembling the second robber, the FBI arrested him. A federal grand jury indicted the petitioner with robbing the Laddonia State Bank in violation of 18 U.S.C. § 2113(a) and (d).
At the trial four bank employees identified petitioner as the second robber. Two other witnesses placed petitioner in Laddonia the day and morning before the rob-Three defense witnesses testified that petitioner was in St. Louis the day of the robbery. The alibi was supported by documentary evidence. The federal jury acquitted petitioner. He was subsequently arrested on a state charge of robbery. Mo. Rev.Stat. §§ 560.120 and 560.135 (1969). At the state trial the same six witnesses identified the petitioner and the three defense witnesses testified that the petitioner was in St. Louis the day of the robbery. The same documentary proof corroborating petitioner’s alibi was given. The state jury found the petitioner guilty. bery.
In Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638, 641 (1971), the court barred successive federal-state prosecutions for bank robbery stating:
It appears to us that the only penological justification for permitting a second prosecution and punishment for the same offense even where different sovereigns are involved is out and out punishment, and we certainly hope that at this late date in the history of the development of the penal system of this Commonwealth and the Nation, that incarceration for a criminal act stands on stronger footing than — an eye for an eye.2
The court in Mills perceived that the underlying rationale of Bartkus was federalism — the need to maintain strong state as well as federal systems of justice. This concern arises from a fear that without recognition of the dual sovereignty doctrine either the state or federal government could prevent the effective administration of justice by the other.3
In his dissenting opinion in Bartkus, supra, 359 U.S. at 155-58, 79 S.Ct. at 698-699, Justice Black soundly criticized this argument:
*844The Court, without denying the almost universal abhorrence of such double prosecutions, nevertheless justifies the practice here in the name of “federalism.” This, it seems to me, is a misuse and desecration of the concept. Our Federal Union was conceived and created “to establish Justice” and to “secure the Blessings of Liberty,” not to destroy any of the bulwarks on which both freedom and justice depend. We should, therefore, be suspicious of any supposed “requirements” of “federalism” which result in obliterating ancient safeguards. I have been shown nothing in the history of our Union, in the writings of its Founders, or elsewhere, to indicate that individual rights deemed essential by both State and Nation were to be lost through the combined operations of the two governments. Nor has the Court given any sound reason for thinking that the successful operation of our dual system of government depends in the slightest on the power to try people twice for the same act.
Ultimately the Court’s reliance on federalism amounts to no more than the notion that, somehow, one act becomes two because two jurisdictions are involved. Hawkins, in his Pleas of the Crown, long ago disposed of a similar contention made to justify two trials for the same offense by different counties as “a mere Fiction or Construction of Law, which shall hardly take Place against a Maxim made in Favour of Life.” It was discarded as a dangerous fiction then, it should be discarded as a dangerous fiction now.
Where the interests of the state and federal governments coincide in the prosecution of a criminal act, as they do here, the federalism rationale is completely unavailing. When this occurs the accommodation of the interest of the individual should be paramount.
I find the examination of the problem by the Supreme Court of Michigan in People v. Cooper, supra, to be determinative. In analyzing whether the federal prosecution for robbing a federally insured state bank “sufficiently protects” the state’s interest in prosecuting the robbery, the Supreme Court of Michigan listed these factors,.“whether the maximum penalties of the statutes involved are greatly disparate, whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction’s interest in securing a conviction, and whether the difference in the statutes are merely jurisdictional or are more substantive.” 247 N.W.2d at 871.
The State of Missouri argues that even if the Mills and Cooper rationale was adopted that it would not be applicable in this case since the state and federal governments did not share the same interest when they prosecuted the petitioner. Missouri asserts that the federal government’s interest in a prosecution under 18 U.S.C. § 2113 is to insure that “the integrity of the federal banking system is preserved,” whereas the state’s interest is to protect its citizens “from violence and to insure that their money is not lost.” This argument misconceives the rationale of Mills and Cooper. The focus is not whether the interests are similar, but whether they are so “substantially different” that a prosecution by the federal government would not “sufficiently protect” the state’s interest. Moreover the laws of both jurisdictions are not dissimilar as both seek to insure the safety of persons and protect private property.. Cooper, supra, 247 N.W.2d at 871.
Missouri additionally argues that the disparity of the penalties between the state and federal statutes is such that it cannot be said that a federal prosecution sufficiently protects the state’s interest. The maximum penalty for first degree robbery, Mo.Rev.Stat. § 560.135, is life imprisonment, while the maximum penalty under § 2113(d) is 25 years imprisonment. The standard under Cooper is whether the maximum penalties are “greatly disparate.” I do not find the disparity between these penalties to be great when considering the crime — bank robbery.
As an intermediate appellate judge I realize it is not my singular role to express *845opinion contrary to established law. However, recognition of this judicial discipline should not prevent one from expressing dismay in the use of stare decisis to perpetuate an injustice.
. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); Murphy v. Waterfront Comm’n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); and Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).
. It should be noted that Supreme Court of Pennsylvania has recently limited its decision in Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971). In Commonwealth v. Studebaker, Pa., 362 A.2d 336 (1976), the court limited the Mills approach to successive prosecutions for the “same offense” and refused to expand the doctrine of collateral estoppel beyond the “same parties.”
. For law review articles discussing the federalism basis of the dual sovereignty doctrine see Brant, Overruling Bartkus and Abbate: A New Standard for Double Jeopardy, 11 Washburn L.J. 188 (1972); Schaefer, Unresolved Issues in the Law of Double Jeopardy: Waller and Ashe, 58 Calif.L.Rev. 391 (1970); Fisher, Double Jeopardy and Federalism, 50 Minn.L.Rev. 607 (1966); and Note, Double Prosecution by State and Federal Governments: Another Exercise in Federalism, 80 Harv.L.Rev. 1538 (1967).