(dissenting).
Defendant contends that: (1) he committed only one crime, and (2) the district court conviction was barred by the constitutional prohibition against double jeopardy. The majority hold that the district court conviction for possession of heroin is barred by the aspect of double jeopardy known as collateral estoppel. They reach this result by holding that the issues determined in the magistrate court conviction for possession of marijuana were the same issues determined in the district court conviction of possession of heroin. I disagree. I would affirm on the basis that neither of defendant’s contentions have merit. Since the majority dispose of the case on the double jeopardy issue, my only comment on defendant’s first contention is that § 54-11-23, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1973) provides that each unlawful possession of a controlled substance is a separate crime. The following discussion is concerned with the double jeopardy issue.
The constitutional requirements of double jeopardy prohibit a person from twice being put in jeopardy “for the same offense.” U.S.Const., Amend. V; N.M. Const. Art. II, § 15.
If the same offense was involved in the magistrate and the district court, constitutional double jeopardy provisions bar the district court prosecution. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973); Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); State v. Gonzales, 84 N.M. 726, 507 P.2d 787 (Ct.App.1973); Woods v. State, 84 N. M. 248, 501 P.2d 692 (Ct.App.1972).
The double jeopardy issue turns on the meaning of “the same offense.” Collateral estoppel is not involved because the magistrate court trial, involving marijuana, did not necessarily nor actually determine the issue in the district court trial involving heroin. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); State v. Tijerina, 86 N.M. 31, 519 P.2d 127 (1973).
Two approaches have been followed in determining whether a subsequent prosecution is for the same offense as a prior prosecution. Those approaches are concerned with the “same evidence” and the “same transaction.” I disagree with the majority’s comment that these two approaches to double jeopardy were abandoned in State v. Tijerina, supra. That decision discusses only the collateral aspect of double jeopardy.
Various New Mexico decisions have applied the “same evidence” test. “In determining whether the offenses charged are the same, the test is whether the facts offered in support of one, would sustain a conviction of the other. If either information requires the proof of facts to support a conviction which the other does not, the offenses are not the same and a plea of double jeopardy is unavailing.” Owens v. Abram, 58 N.M. 682, 274 P.2d 630 (1954), cert. denied, 348 U.S. 917, 75 S.Ct. 300, 99 L.Ed.2d 719 (1955) ; see State v. Martinez, 77 N.M. 745, 427 P.2d 260 (1967); State v. Goodson, 54 N.M. 184, 217 P.2d 262 (1950); State v. Woods, 85 N.M. 452, 513 P.2d 189 (Ct.App.1973); Woods v. State, supra; State v. Mares, 79 N.M. 327, 442 P.2d 817 (Ct.App.1968). Under the “same evidence” test, there was no double jeopardy because the factual proof differed in the two prosecutions. The difference in proof was the difference in proving marijuana and proving heroin.
The “same transaction” approach to double jeopardy is concerned with whether the offenses were committed at the same time, were part of a continuous criminal act, and were inspired with the same criminal intent. Several New Mexico decisions refer to this approach. State v. Goodson, supra, rejects the “same transaction” approach, approving the view that “same offense” does not mean the same transaction, same act, same circumstances or same situation. State v. Mares, supra, also rejects the “same transaction” approach when it states there is no double jeopardy “unless the offense to which it is interposed is the same in law and in fact as the prior one.”
However, State v. Quintana, 69 N.M. 51, 364 P.2d 120 (1961) applied the “same transaction” approach in holding that the offense of grand larceny had merged with the offense of armed robbery. The offenses merged because the larceny was “necessarily included” in the armed robbery. See also State v. Blackwell, 76 N.M. 445, 415 P.2d 563 (1966) ; State v. Everitt, 80 N.M. 41, 450 P.2d 927 (Ct.App.1969). These decisions limit the “same transaction” approach to necessarily included offenses. State v. Martinez, supra. Because possession of marijuana is not necessarily included in possession of heroin, State v. Quintana, supra, does not support defendant’s double jeopardy claim.
State v. Anaya, 83 N.M. 672, 495 P.2d 1388 (Ct.App.1972) does not limit the “same transaction” test to a “necessarily included” offense. Although Anaya, supra, cites State v. Quintana, supra, as authority, it goes beyond the holding in Quintana, supra. Anaya, supra, appears to be based on the concurring opinion of Justice Brennan in Ashe v. Swenson, supra. That concurring opinion is a minority. The majority in Ashe v. Swenson, supra, do not hold that the “same transaction” test is a constitutional requirement. State v. Tijerina, supra.
Although the “same transaction” approach is not a constitutional requisite to be applied to a double jeopardy issue, the question is whether State v. Anaya, supra, should be followed in this case. In my opinion, the answer is “No.” The “same transaction” test is valid only when “transaction” means a single criminal act. Commonwealth v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941), cited with approval in State v. Quintana, supra. “The principal shortcoming of this [same transaction] approach is that any sequence of conduct can be defined as an ‘act’ or a ‘transaction.’ ” Twice in Jeopardy, 75 Yale L.J. 262, at 276 (1965-66). The “same transaction” test would make the defense of double jeopardy depend on how “act” was defined. In this case, there is the act of possessing marijuana and the act of possessing heroin. Are these possessions two acts or one act, two transactions or one transaction ?
In my opinion, the “same transaction” test is not to be extended beyond State v. Quintana, supra, and State v. Anaya, supra, is not to be followed. There being no collateral estoppel, there being no necessarily included offense and the factual basis being different, the constitutional prohibition of double jeopardy did not bar prosecution for the unlawful possession of heroin.
Even if the “same transaction” approach were to be followed, the facts are insufficient for its application in this case. The stipulation is that the facts and circumstances are the same except for the items possessed. However, the stipulation does not disclose those facts and circumstances. The evidence at the heroin trial is that the heroin was found at two different locations within the house searched pursuant to a search warrant. We do not know where the marijuana was found. We do not know when or how defendant came into possession of either the heroin or marijuana. We do not know whether the possession of each substance was acquired at the same time. We do not know whether the possession of both substances were part of a continuous criminal act or were inspired with the same criminal intent. The stipulation is insufficient to support a ruling of double jeopardy under the “same transaction” approach. See Branch v. Mills, 500 P.2d 590 (Okl.Cr.1972); compare State v. Romero, 33 N.M. 314, 267 P. 66 (1928).
I dissent.