¶1(dissenting).
¶2The stipulated facts which form the basis for these proceedings indicate the following: On May 25, 1959, the Hartwell residence at *921533 Van Burén, St. Paul, in which Martha Hartwell and Lucelia Hartwell, her daughter, were residents, was broken into by a man at about 12:30 a. m. At that time the intruder grasped Lucelia Hartwell by the arm and forced her to accompany him into the second-floor bedroom occupied by Martha Hartwell. There he grabbed a telephone from the hands of Lucelia Hartwell, ripped the sheet into strips with which he tied Martha Hartwell, and thereafter inflicted numerous indignities upon both of the Hartwells. In the course of his presence there, Lucelia struck this intruder with a cutglass flower vase, causing him to bleed. As a result of a police inquiry, defendant was taken into custody for these offenses on June 5, 1959. On June 23, 1959, he was indicted and thereafter tried for burglary with the intent to commit assault. At his trial some 19 witnesses appeared and testified. He was acquitted on January 22, 1960.
¶3On June 14, 1960, at 2:30 a. m., the St. Paul Police Department received a call concerning another break-in at the Hartwell residence. Responding police officers found there that a basement window and a doorway between the basement and first floor had been broken but that no intruder was then present. They then traveled one-half mile to defendant’s residence at 919 North Snelling Avenue but found that defendant was absent. Leaving this house, the officers traveled back toward the Hartwell residence. En route they found defendant walking along Snelling Avenue about midpoint between the two residences. At that time, they examined him and found that his clothes were disheveled and dirty; and that in his pocket was a small notebook which disclosed a notation giving the residence address and telephone number of Lucelia Hartwell. He was taken to a St. Paul police station and there booked on suspicion of burglary. His clothing and portions of the broken window found at 1533 Van Burén were then sent to the State Bureau of Criminal Apprehension for laboratory examination. He was arrested on suspicion that he was the person who was guilty of unlawful entry on this occasion.
¶4On June 28, 1960, testimony of various witnesses was submitted to a grand jury of Ramsey County relative to the break-in of May 25, 1959, and the second break-in of June 14, 1960. This jury was advised that as to the first break-in defendant had been indicted and *93tried for burglary in the second degree with intent to assault, and had been found not guilty therein. The grand jury thereupon returned an indictment in the following language:
¶5“The said Robert Hugh Robinson on the 25th day of May A. D. 1959, at the City of St. Paul in said County then and there being, did wilfully, unlawfully and feloniously take indecent liberties without her consent expressly given, with and on the person of one Lucelia Hartwell; she, the said Lucelia Hartwell, being then and there over the age of sixteen years and not a public prostitute, which said acts of him, the said Robert Hugh Robinson, did not in law amount to a rape, an attempt to commit a rape, or an assault with intent to commit a rape.”
¶6At the first trial in which defendant was acquitted, the instructions to the jury included the following:
¶7“It is the contention of the State that in the early morning of May 25, 1959, and shortly after midnight of May 24, 1959, the defendant broke and entered the dwelling house of Martha Hartwell, said dwelling house being located at 1533 Van Burén Avenue …; that at the time of such breaking and entering into said dwelling house there were then and there present in said dwelling house … Martha Hartwell and Lucelia Hartwell; that the said breaking and entering … by … defendant was with the intention to commit the crime of assault in said dwelling house. … The State further contends that the defendant was in said dwelling house for approximately 45 minutes, and during this time assaulted both Martha Hartwell and Lucelia Hartwell by applying actual force to and inflicting immediate injury to the persons of Martha Hartwell and Lucelia Hartwell. …
¶8“… The defendant further contends that he did not commit any assault on either Martha Hartwell or Lucelia Hartwell, and that since he did not break and enter into the Hartwell home at that time or any other time, he could not have entered the Hartwell home with the intent to commit the crime of assault therein.” (Italics supplied.)
¶9As indicated above, this jury returned a verdict of not guilty. On June 30, 1960, defendant was arraigned on an indictment dated June *9428, 1960, which related to the acts transpiring on May 25, 1959, and had no relationship to the unlawful entry of June 14, 1960. On June 30,1960, he entered a plea of not guilty thereto.
¶10On July 12, 1960, defendant moved for dismissal on the ground that to be tried thereon would place him in double jeopardy and later on the ground that it would constitute a denial of his right to a speedy trial. On September 12, 1960, the District Court of Ramsey County entered an order denying this motion. On September 20, 1960, pursuant to Minn. St. 632.10, it certified to this court for determination the following “doubtful and important” questions:
¶11“1. Under the circumstances disclosed by the record, upon which there is no dispute, does the indictment charging Indecent Assault, the object of the burglary charged in the previous indictment for which the defendant was tried and found not guilty by a jury, and a trial thereupon, constitute double jeopardy within the meaning of Article 5 of the Constitution of the State of Minnesota?
¶12“2. Does the lapse of time between the arrest in June, 1959 and the indictment for said Indecent Assault in 1960 deprive the defendant of his right to a speedy trial, as provided in Article 6 of the Constitution of Minnesota?”
¶13The state relies upon Minn. St. 621.12 which provides: “Every person who, having entered a building under such circumstances as to constitute burglary in any degree, shall commit any crime therein, shall be punished therefor as well as for the burglary, and may be prosecuted for each crime separately”; and State v. Hackett, 47 Minn. 425, 50 N. W. 472, which held that under this section a person acquitted of the crime of burglary might nevertheless be prosecuted later for larceny committed in the course of the burglary involved. This was based on the theory that any evidence relative to larceny must have been received in the prior prosecution as part of the res gestae relative to the burglary, since there had been no charge of larceny and no prosecution therefor in such proceedings.
¶14In the instant case, at the prior trial defendant was acquitted of the crime of burglary in the second degree with the intent to assault, and it would seem clear that this determination constitutes a bar to his *95prosecution now under an indictment for indecent assault arising out of the identical factual situation. In the former proceedings the testimony received in evidence was relevant both to the crime of burglary and to the crime of assault. The same evidence of necessity would have to be submitted if defendant’s guilt under the second indictment is to be established. In State v. Thompson, 241 Minn. 59, 64, 62 N. W. (2d) 512, 517, we stated:
¶15“… it may be said that two offenses are identical so that a prosecution for one is a bar to a prosecution for the second:
¶16“(1) If the evidentiary facts essential to establish the requisite elements of the offense charged in the second indictment would have been admissible under the first indictment — or information — to establish the elements of the offense charged therein and, if proved, would necessarily have resulted in a conviction under the first indictment, …
¶17Since it is clear that here the evidence required to convict defendant under the second indictment was submitted and received as relevant to his innocence or guilt under the first indictment, the jury’s determination therein should constitute a bar to his prosecution under the second indictment.
¶18At the first trial defendant’s sole defense was that he was not the person described in the indictment charged with burglary in the second degree with the intent to commit assault. All evidence submitted by either side in this trial was received on the only theory of the defense — that the person who had assaulted the Hartwells on May 25, 1959, was the same person as the one who had broken into and entered their residence on that date, and that such person was not the defendant. The jury was definitely instructed that the person who had broken into the Hartwell residence was the same person who had then committed the assault upon the Hartwells. Under the indictment of June 28, 1960, the state now seeks to convict defendant by evidence of the identical factual situation under which the first jury determined that he was not the person who had unlawfully entered the Hartwell residence on May 25, 1959, and at that time committed the assault with which defendant is charged in the new indictment.
¶19*96Certainly, it would be grossly illogical to conclude that defendant’s acquittal meant either that the first jury thereby determined that he was the burglar, but was not guilty of the charge because he did not intend an assault; or that he was not the burglar and because he was not that, he was not guilty under the indictment even though he intended the assault. The evidence in the prior prosecution compels the conclusion that the burglar there was the one who committed the assault. No one contended otherwise and the court so instructed the jury. Likewise, such evidence compels the conclusion that the person who committed the assault was not an invitee but a burglar. Under such circumstances, it is clear that the second prosecution is barred by the prior verdict. To hold otherwise brings about the absurd conclusion that although defendant is not the burglar who broke into and entered the Hartwell residence with intent to assault and who committed the assault on that occasion, nevertheless, he must again face trial on the charge that he is the burglar and did commit the assault described. I cannot adhere to any such medieval concept of due process or justice.