dissenting.
I emphatically reaffirm my dlissent as expressed in the former appeal in this case. State v. Pope, 186 Neb. 489, at p. 492, 184 N. W. 2d 395, at p. 397. Its validity is reinforced by the current decision.
The majority opinion now holds in effect that there is no such thing as constitutionally prohibited double jeopardy where the two prosecutions are by the United States on the one hand and a “sovereign” state on the other. Not only does the opinion dleny the application of the constitutional doctrine of both federal and state constitutions, but it also denies the application of the correlative common law doctrine.
■ The justification is rested upon a vindication of the public policy of the State of Nebraska. Although phrased in other terms, the obvious state policy now to be vindicated is to retain the right to decide whether the punishment inflicted by the United States is sufficient to satisfy the state. Not only does: state public policy apparently require vindication where there is a disparity between maximum punishments prescribed by the United States and Nebraska for an offense but it now requires vindication even though the maximum punishlhents prescribed and actually inflicted are identical and multiple. The state’s sovereignty now extends even to insuring that the federal sentences are executed and en*695forced in the fashion the state deems appropriate.
The position expressed in the majority opinion not only nullifies the constitutional and common law doctrines of double jeopardy and! double punishment; it also puts the United States and Nebraska in the position of competing with each other to establish their respective sovereignties. Each “sovereign” determines whether the punishment meted out by the other “sovereign” should be deemed sufficient, and whether the protections against double jeopardy and double punishment shall be granted or withheld. That determination rests upon the sole discretion of a prosecutor, and not upon fundamental and traditional concepts of due process and equal protection of the law. The protection of constitutional andl common law guaranties against double jeopardy and double punishment “ought not to be ignored to justify and. preserve a competitive policy of retribution and punishment under our unique form of federal democracy.”
Smith, J.,dissenting in part.
The life sentences under review preserve the right of the State of Nebraska to determine whether Duane Pope will ever become eligible for parole. That interest of the state would also be protected by a modification of the sentences as follows: We would credit Pope for time served under the federal sentences, and the state sentences would run concurrently.
The majority opinion may go too far in choking the spirit, if not the letter of constitutional, legislative, and administrative policies of parole. See, Art. IV, sec. 13, Constitution of Nebraska (1972); § 83-192(1), R. R. S. 1943; § 83-1,110, R. S. Supp., 1973. It is enough for me that modification of the sentences in the above respects would vindicate the public interest of the state. I therefore dissent.
Spencer, J.,dissenting in part.
I join the partial dissent of Judge Smith. I agree that the life sentences under review preserve the right of the State of Nebraska to determine whether Duane Pope *696will ever become eligible for parole. I, therefore, disagree with the dissent of Judge McCown that double jeopardy or the correlative common law doctrine are violated. In State v. Pope, 186 Neb. 489, 184 N. W. 2d 395, we passed on the validity of the Nebraska prosecution. The sole issue presented for our determination herein is whether Pope can be resentenced. I emphatically concur with the majority determination concerning that issue.
I would credit Pope for the time served under the federal sentences, and provide that the state sentences would run concurrently. I cannot believe that any future parole board would consider parole herein without fully reviewing the planned elimination of all possible witnesses. If ever a case required the death penalty,' this one is it.