
    No. 73-6340.
    Tijerina v. New Mexico.
   Sup. Ct. N, M. . Certiorari denied.

The Chief Justice took no part in the consideration or decision of this petition.

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join,

dissenting.

Petitioner’s participation in a serious disturbance at the courthouse in Tierra Amarilla, New Mexico, on June 5, 1967, resulted in his being charged with having both kidnaped and falsely imprisoned a deputy sheriff, as well as having assaulted the courthouse and jail. After a jury trial, he was acquitted of all charges. Subsequently, over petitioner’s objection that his double jeopardy protections were being violated, he was tried on charges of having assaulted three persons with intent to commit violent felonies, as well as having falsely imprisoned another deputy sheriff, all of which arose out of the same incident on June 5, 1967. Petitioner was convicted on one of the assault charges and on the false imprisonment charge. The Court of Appeals of New Mexico certified petitioner’s appeal to the New Mexico Supreme Court, 84 N. M. 432, 504 P. 2d 642 (1972), and the Supreme Court affirmed the convictions. 86 N. M. 31, 519 P. 2d 127 (1973).

Although all of the charges leveled against petitioner at the two trials arose out of the same transaction or episode, they were prosecuted by the State in separate proceedings. That, in my opinion, requires that we grant the petition for certiorari and reverse, for I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), requires the prosecution, except in extremely limited circumstances not present here, “to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (Brennan, J., concurring); see Smith v. Missouri, 414 U. S. 1031 (1973) (Brennan, J., dissenting); Miller v. Oregon, 405 U. S. 1047 (1972) (Brennan, J., dissenting); Harris v. Washington, 404 U. S. 55, 57 (1971) (statement of Douglas, Brennan, and Marshall, JJ.); Waller v. Florida, 397 U. S. 387, 395 (1970) (Brennan, J., concurring). See also People v. White, 390 Mich. 245, 212 N. W. 2d 222 (1973); State v. Brown, 262 Ore. 442, 497 P. 2d 1191 (1972); Commonwealth v. Campana, 452 Pa. 233, 304 A. 2d 432, vacated and remanded, 414 U. S. 808 (1973), adhered to on remand, 455 Pa. 622, 314 A. 2d 854 (1974).  