¶1concurring in part and dissenting in part. The majority opinion ignores the arguments presented in this appeal and concludes the events charged in the Randolph County Circuit Court are separated in time from those of which McMullen was convicted in the United States District Court in Texas, and for that reason, the federal conviction does not bar the trial in an Arkansas court. In my view, the majority of the members of the court have incorrectly analyzed this case.
¶2The transcript of the hearing in the federal court at which McMullen pleaded guilty to five counts showed that the judge, in discussing count one, which was the charge of conspiracy to possess marijuana with intent to distribute, stated the acts were charged to have occurred “during the months of January through marijuana of 1989, here in Houston and in other places. . . .” The word “marijuana” is obviously an error which probably occurred in the transcription of the court’s remarks. (The copy of the transcript we have been furnished shows that the transcription is a “computer aided” one.) The important point, however, is that the charge covered acts as early as J anuary, 1989. That alone would not necessarily show that the alleged acts of McMullen, occurring in Arkansas in January or February of that year were included in the federal conviction. But there is more.
¶3After reciting the counts of the federal indictment to McMullen, the federal court asked the prosecutor what the evidence showed “with regard just to Mr. McMullen.” The response included the following:
Mr. McMullen was talked to by Special Agent Cummins of D.E.A. and during that discussion indicated, among other things, that two months prior to what would have been March — yes, which would have been March 7th, he had stopped the van in Randolph County, Arkansas, had talked to the people who subsequently were identified as Francisco Javier Gonzalez and Jesus Vera.
The gist of that conversation I don’t suppose is of any great moment aside from the fact that during that car stop he seized roughly a half a kilo of marijuana from them, and during the discussion he had with them he indicated to them if they’d come to Houston, he could make them rich.
¶4Despite the somewhat garbled remarks of the prosecutor, it is apparent that the federal conspiracy conviction included the conduct which occurred in Arkansas for which McMullen is charged in Randolph County. The state argues that the statement about the Arkansas activities of McMullen was put on record only as background information. We have no way of knowing that, and as it constituted evidence of acts which it cannot be said were not part of the whole conspiracy, we will consider it as such.
¶5That brings us to the principal arguments made by the parties in this case. The state contends that the trial court erred by determining the federal offense by reference to the government’s presentation of evidence of McMullen’s Arkansas activities as part of the conspiracy. The test is said to be an “elements” rather than an “evidence” test, and the state argues that the offenses of public servant bribery and possession of less than ten pounds of marijuana with intent to deliver contain elements different from those composing the federal conspiracy charge.
¶6In Bateman v. State, 265 Ark. 307, 578 S.W.2d 216 (1979), the facts were similar to those here. Federal and state prosecutions arose out of a series of events surrounding the receipt in Arkansas and transportation to Tennessee of stolen firearms. We wrote:
At one time the same conduct could give rise to identical federal and state offenses, because the offenses were deemed to have been committed against different sovereigns, but that view no longer prevails. Our General Assembly, in enacting the Criminal Code of 1976, provided that when the same conduct constitutes an offense within concurrent federal and state jurisdiction, a federal conviction or acquittal is an affirmative defense to a state prosecution unless:
(a) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of the offenses is intended to prevent a substantially different harm or evil. [Emphasis added.]
¶7That language is consistent with Ark. Code Ann. § 5-1-114(1)(A)(1987) which provides for a defense based on a federal conviction unless the offense of which the accused was formerly convicted “and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other, and the law defining each of the offenses is intended to prevent a substantially different harm or evil. . . .”
¶8It does not constitute double jeopardy to convict a person of a conspiracy to commit an offense and then to try him for having committed the offense with respect to which he conspired. Pereira v. United States, 347 U .S. 1 (1954); Sealfon v. United States, 332 U.S. 575 (1948). A state may try one for the same offense of which he has been convicted in a federal court on the basis of the separate sovereignty doctrine unless the state has narrowed its power to do so as our general assembly has done by enacting §5-1-114. See Journey v. State, 261 Ark. 259, 547 S.W.2d 433 (1977). The next phase of the issue becomes whether the offenses charged in Randolph County and the conspiracy conviction “each” have at least one different element.
¶9No doubt the conspiracy conviction required proof of an element not required in either of the Arkansas charges. It required the knowing, willful combination, conspiracy, or agreement with other persons. The Arkansas possession with intent to deliver charge contained the element of possession which was not an element of the federal conspiracy charge. The Arkansas public servant bribery charge contained several elements not contained in the federal conspiracy charge, e.g., that it be shown that McMullen was a public servant. See Ark. Code Ann. § 5-52-103(a)(1) (1987). The harm or evil addressed by the statute is corruption of public officials which is not an element of the federal conviction.
¶10The last question to be answered is whether the federal conspiracy to possess conviction and the Arkansas possession with intent to deliver charge were intended to address the same harm or evil.
¶11As pronounced by the federal judge, the count of which McMullen stands convicted was conspiracy “to possess with the intent to distribute, and to distribute, more than a hundred kilograms of marijuana, which is a schedule one controlled substance.” I can see no difference between the obvious harm or evil addressed in that charge and the harm or evil addressed in Ark. Code Ann. § 5-64-401(a)(l)(iv) (1987) which makes it unlawful to possess a controlled substance with intent to deliver. In both cases it is apparent to me that the harm or evil addressed is the distribution of, in this case, marijuana.
¶12The decision barring trial on the public servant bribery charge should be reversed, and the decision barring trial on the charge of possession of less than 10 pounds of marijuana with intent to deliver charge should be affirmed.