(dissenting in part) :
I am convinced that there is merit in the contention of the appellant that his conviction of conspiracy and accessory before the fact constituted double jeopardy, in violation of Article I, Section 17 of the Constitution of South Carolina. While the record in the instant case does not contain the testimony adduced at the trial, such is contained in the record in the case of State v. Steadman, S. C., 186 S. E. (2d) 712, the appeal in which was argued together with the instant appeal. From that record it appears that the State offered evidence that appellant participated in planning the burglary and that his automobile, inferentially with his consent, was used by the principals on the night of the burglary.
The question of whether conspiracy and accessory before the fact, with respect to the same substantive crime, constitute separate offenses or only one offense appears tó be a question of completely novel impression in this jurisdiction. While the facts are somewhat dissimilar, admittedly the United States Supreme Court decisions cited in the majority opinion are authority for the proposition that the double convictions here do not offend the double jeopardy clause of the federal Constitution. South Carolina, however has its own constitutional prohibition against double jeopardy and we are free to make our own interpretation thereof as long as such does not detract from the minimum standards for the protection of individual and human rights established by the United States Supreme Court in its federal constitutional decisions. With all due respect to the decisions of that court, I find myself in accord with the dissenting opinion of Mr. Justice Rutledge in Pinkerton v. United States, 328 U. S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489, where in speaking of the dual convictions, he said,
*526“If it does not violate the letter of constitutional right, it fractures the spirit.”
Contrary to the federal rule, numerous state courts of last resort, in a variety of factual situations, have held, in effect, that conspiracy and accessory before the fact are in substance one and the same offense and that double jeopardy inhibitions bar prosecution for two offenses. State v. Bell, 205 N. C. 225, 171 S. E. 50; Davis v. People, 22 Colo. 1, 43 P. 122; State v. McNeil, 161 Wash. 221, 296 P. 555; State v. Muntzing, 146 W. Va. 878, 122 S. E. (2d) 851, 94 A. L. R. (2d) 1033; Ex Parte Resler, 115 Neb. 335, 212 N. W. 765; State v. Mowser, 92 N. J. Law 474, 106 A. 416.
As pointed out in the majority opinion, the test generally applied to determine whether one, or more than one, offense is involved is that which has become somewhat popularly known as the “same evidence” test. This Court has previously had occasion in a number of instances to resort to this test, but never before had the occasion to consider its applicability to the charges of conspiracy and accessory before the fact. As long ago as State v. Switzer, 65 S. C. 187, 43 S. E. 513, this Court recognized that such rule, while generally useful and adequate, was not an infallible one. Research indicates that in more recent years such test has been the subject of a great deal of criticism by jurists and writers. See, inter alia, Whitton v. State (Alaska), 479 P. (2d) 302; People v. De Sisto, 27 Misc. (2d) 217, 214 N. Y. S. (2d) 858.
But even if infallibility be conceded to the “same evidence” test, a resort thereto in the instant case leads me to a conclusion opposite to that of the majority opinion. I respectfully submit that, applying this test, the offense of conspiracy contains no element which is not a necessary element of the offense of accessory before the fact and, hence, that conspiracy and accessory before the fact are, in substance, one and the same offense. An express agreement is *527not essential to a conspiracy, a tacit, mutual understanding or meeting of the minds being sufficient. State v. Fleming, 243 S. C. 265, 133 S. E. (2d) 800. It is inconceivable to me how one can become an accessory before the fact without at least a tacit, mutual understanding with someone else that the substantive crime is to be committed. Hence, proof of accessory before the fact is also, without more, proof of conspiracy.
“Strictly speaking, in order to constitute one an accessory before the fact there must exist a community of unlawful intention between him and the perpetrator of the crime. The concept of an accessory before the fact presupposes a prearrangement to do the act. (See West v. State, 25 Ala. App. 492, 149 So. 354); * * Morei v. United States, CCA 6, 1942, 127 F. (2d) 827, 831.
In the fairly recent case of State v. Bass, 255 N. C. 42, 120 S. E. (2d) 580, the North Carolina court quoted with approval from 22 C. J. S. Criminal Law § 92, p. 271, the following,
“The concept of accessory before the fact has been held to presuppose some prearrangement with respect to the commission of the crime in question.”
I would affirm only the conviction and sentence for accessory before the fact of burglary and would vacate the conviction and sentence on the charge of conspiracy, as being in violation of Article I, Section 17 of the South Carolina Constitution.
Brailsford, J., concurs.