(dissenting).
I am unable to agree with the majority opinion that Easley’s first conviction on the charge of safe breaking is not a bar to his second conviction on the charge of burglary, where there was but one transaction. It is so plain to me that both the trial court and this one have erred, that I feel impelled to dissent.
For the sake of convenience and brevity, the charge of safe breaking will be referred to as the first case and the one involving burglary will be referred to as the second case, since they were tried in this order.
Stripped of its formal verbiage, the first indictment charged Easley with unlawfully breaking into a safe belonging to Mr. Bul-litt (located in his home) in which were kept money and securities of value, with intention of converting same to Easley’s own use. The second indictment charged Easley with feloniously breaking into this’ same home of Mr. Bullitt with the intent to commit grand larceny.
On the first trial Mrs. Bullitt testified the house was entered through a window, the safe was opened by running the combination and about $100,000 was taken therefrom. Her testimony was substantially the same on the second trial. However, Mrs. Bullitt was corroborated on the second trial by her maid, Bertha Anthony, that the entry into the house was made through an open window. This maid did not testify on the first trial.
Priest M. Fry, an officer of the Louisville Police Department, testified in both trials as to recovering $40,000 from Easley and in both trials introduced a confession made by him. In the first trial it seems that only part of the confession was read to the jury relative to defendant finding and copying the combination of the safe, while in the second trial the whole confession was read to the jury. The prosecutor made this statement as is shown on page 67 of the transcript of evidence heard on the second trial:
“The statement which Captain Fry has just read was introduced as an exhibit on the trial of the previous case, and was loaned to me by the official reporter. I would like to withdraw *781the exhibit in order to return it to the record of the first trial and offer in its place a photostatic copy of that statement. Is that agreeable with you?”
“(Defense counsel:) We agree to it.”
It would appear from this quotation that the whole confession was made a part of the record on the first trial, although only part of it was-actually read to the jury.
On the first trial, three photographs of the safe were introduced marked respectively “Prosecution Exhibits,' A., B., and C.” On the second trial these same three photographs were introduced and in a notation on the index of the transcript of evidence of the second trial, this appears: “Exhibits, B., C. and D., photographs, included in record on appeal of first conviction.”
It is provided in § 13 of the Kentucky Constitution: “No person shall, for the same offense, be twice put in jeopardy of his life or limb.” In the recent case of Burnett v. Com., Ky., 284 S.W.2d 654, it was written at page 656:
“We have often said that the Commonwealth may not split a single act into two or more separate offenses, and that where a single act or transaction is sufficient to constitute more fhah one offense and an election for prosecution has been made, a conviction or acquittal on that charge is a bar to another prosecution based solely on the same-act or transaction. Arnett v. Commonwealth, 270 Ky. 335; 109 S.W.2d 795. This is so even though the first trial was for 'a lesser grade of offense out of which the greater one stemmed. Thus, conviction in a justice’s court of a breach of the peace by assaulting another person is a bar to his prosecution in the circuit court for assault and battery on the same person at the same time. Commonwealth v. Gill, 90 S.W. 605, 28 Ky.Law Rep. 879.”
It is worthy of note that in the Burnett case the accused had paid three 'fines: 1. for operating a car while intoxicated; 2.' feckless driving; 3. running a red light, and the opinion held that these three prior convictions did not bar his prosecution for assault and battery growing out of the same transaction when his car struck a woman, since the record did not show this fact entered into his police court trials. Thus it is intimated, and very logically so, that our holding would have been different had the pedestrian been the prosecuting witness on the-reckless driving charge and testified she had been struck by Burnett’s car.
The rule as to when one prosecution is a bar to another is correctly stated in the majority opinion. However, a simpler statement thereof appears at the bottom of page 1089 of 10 S.W.2d,.in Com. v. Ladusaw, 226 Ky. 386 (taken from Scarf v. Com., 195 Ky. 830, 835, 243 S.W. 1034, 1036) in these words: “When the facts necessary to convict on the second prosecution would necessarily have convicted on. the first, a final judgment on the first prosecution will be a bar to the second one.”
The early case of Triplett v. Com., 84 Ky. 193, 1 S.W. 84, 8 Ky.Law Rep. 67, held a prosecution for burglary is a bar to an indictment charging grand larceny when but one transaction occurs at the same time and place. The Triplett opinion correctly says the prosecutor may elect whether the indictment shall be for burglary or grand larceny, but he cannot make two offenses out of one.
It is. interesting to note how the courts of the various states have divided (illogically at times, I think) on this question. Referente is made to Annotations in 19 A.L.R. 626.
In Fisher v. Com., 1 Bush 211, 64 Ky. 211, accused stole a horse, wagon and harness which hitched the horse to the wagon. It was held an acquittal on an indictment charging horse stealing was a bar to a separate indictment charging a theft of the wagon and harness.
*782A very excellent statement appears in Arnett v. Com., 270 Ky. 335, 109 S.W.2d 795, 796, “the ‘same offense,’ within the meaning of section 13 of the Constitution, does not signify the same offense eo nominee, but the same criminal act or omission.” Here, Easley’s offense was grand larceny from the Bullitt home and under § 13 it matters not one whit whether he took the $100,000 from Mr. Bullitt’s safe or from his desk drawer. The gravamen of the offense charged in each indictment is grand larceny.
But back to the rule. Would facts necessary to convict on a second prosecution have necessarily convicted on the first? Here, the answer is bound to be in the affirmative because the proof on the second trial was the same as that heard on the first and it resulted in a conviction on the first trial. This case is as simple as that. Therefore, I am guilty of writing more than necessary and of making an exceedingly easy proposition appear difficult.
For the reasons given, I would reverse the judgment of the trial court.
I am authorized to state that Judge MIL-LIKEN joins in this dissent.