¶1(dissenting). This writer is unable to subscribe to the result obtained in the majority opinion.
¶2The essential sordid facts indicate that the defendant met the complaining witness and two of her girlfriends at the Windsor Race Track during the evening of February 15, 1968. After a night of socializing, the complaining witness and her friends drove to one of the friend’s homes in Inkster, Michigan. The defendant and two companions followed them. When the complaining witness exited her vehicle, the defendant stopped her and asked her to return to Detroit with him. She refused. The defendant then struck her with a gun and forced her into his vehicle. Thereafter, inside the corporate limits of the r City of Detroit, the defendant forced the complaining witness to engage in sexual intercourse with him.
¶3*382The defendant was arraigned in Detroit Recorder’s Court on February 21, 1968, for the offense of rape. On February 28, 1968, he was arraigned in Inkster, Michigan, on the charge of kidnapping. On March 4, 1968, the preliminary examination on the rape charge was held in the Detroit Recorder’s Court. The preliminary examination on the charge of kidnapping was held in Inkster on March 6, 1968. Defendant was bound over to the Recorder’s Court on the charge of rape, MCLA 750.520; MSA 28.788, and felonious assault, MCLA 750.82; MSA 28.277, and the Wayne County Circuit Court on the charge of kidnapping, MCLA 750.349; MSA 28.581.
¶4On March 21, 1969, the defendant was convicted by a jury in Wayne County Circuit Court of kidnapping. A scheduled trial for March 25, 1969, in the Detroit Recorder’s Court on the charges of rape and felonious assault was adjourned. Thereafter, defendant was sentenced in the Wayne County Circuit Court to 5 to 15 years for kidnapping.
¶5Subsequent to the sentencing for kidnapping, the prosecution proceeded to trial on the rape and felonious assault charges in the Detroit Recorder’s Court. Defendant was convicted by a jury of both charges. He was sentenced to prison terms of 8 to 30 years on the rape conviction and 3 years and 9 months to 4 years on the felonious assault conviction.
¶6On appeal, defendant contends that the Detroit Recorder’s Court erred in denying defendant’s motion to quash on the basis of double jeopardy. The majority opinion concurs, adopting the "same transaction” test for determining whether double jeopardy is applicable.
¶7I
¶8The Const 1963, art 1, § 15 states:
¶9*383"No person shall be subject for the same offense to be twice put in jeopardy.”
¶10The Fifth Amendment of the United States Constitution makes the same provision but adds the words "of life or limb.”
¶11The double jeopardy provision of the Fifth Amendment of the United States Constitution applies to the states through the Fourteenth Amendment. Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969); People v McPherson, 21 Mich App 385 (1970); People v Sharp, 9 Mich App 34 (1967). Benton, supra,is retroactive in its effect. Ashe v Swenson, 397 US 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970); North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
¶12There are two elements of the constitutional interdict: (1) There must be successive subjection to "jeopardy” and (2) in each instance the offense must be the same. People v Wilson, 6 Mich App 474 (1967). The second prosecution must be for the identical act and crime both in law and fact for which the first prosecution was instituted. People v Beverly, 247 Mich 353 (1929). In determining the identity of the offense, one act may constitute several offenses. Unless the offense is a necessary element in and part of another, an acquittal or conviction of one is not a bar to prosecution for the other. People v Wilson, supra.
¶13In the instant case, the crime of kidnapping is not identical in law or fact with the crimes of felonious assault or rape. The elements of kidnapping do not prove the crimes of felonious assault or rape. Thus, the defendant’s conviction of kidnapping does not prevent the prosecution from prosecuting the defendant for the crimes of felonious assault or rape.
¶15It is necessary to realize that the actions of the prosecutor in prosecuting the defendant and the actions of the trial courts involved in exercising their jurisdiction over the defendant are authorized by law. The crime of kidnapping occurred within Wayne County, but outside the corporate limits of the City of Detroit. Therefore, the Wayne County Circuit Court had jurisdiction over that offense. People v Rosa, 382 Mich 163 (1969); People v Jackzo, 206 Mich 183 (1919). The crimes of felonious assault and rape were committed within the corporate limits of the City of Detroit. As such, the Detroit Recorder’s Court had exclusive jurisdiction over those offenses. MCLA 726.11; MSA 27.3561; People v Rosa, supra.Thus, the prosecutor acted properly in prosecuting the defendant in the respective trial courts and they properly exercised their jurisdiction.
¶16However, the majority opinion asserts that these rules of jurisdiction are procedural rules that must be subordinated to a constitutional right not to be twice put in jeopardy for the same offense. Cf Gouled v United States, 255 US 298, 313; 41 S Ct 261, 266; 65 L Ed 647, 654 (1921). A reading of Gouledindicates that the rule involved therein was indeed merely a rule of procedure. However, in the instant case, the rule involved is one of jurisdiction. As far back as Langdon v Wayne Circuit Judges, 76 Mich 358 (1889), it has been held that jurisdiction, when applied to the courts, is the power to hear and determine a cause or matter. Ward v Hunter Machinery Co, 263 Mich 445 (1933), pointed out that jurisdiction lies at the foundation of all legal adjudications, and it means the authority which the court has to hear and determine a case. Again in People v Joseph, 384 *385Mich 24 (1970), the Supreme Court reiterated the rule that jurisdiction deals with the service of process and the power of the court to act in the matter. Thus, it is clear that jurisdiction is not merely a rule of procedure but rather, it is the very power and authority necessary for the court to act. Gouled v United States, supra,is therefore distinguishable on the facts and not here controlling. The jurisdiction of the trial courts here involved is therefore not subordinate to the alleged constitutional right involved on the basis of Gouled v United States, supra.
¶17Ill
¶18The legislature has the constitutional right to create any court and to vest it with whatever jurisdiction it pleases, provided only that it shall be inferior to the Supreme Court. Detroit v Wayne Circuit Judges, 233 Mich 356 (1925). Only the Supreme Court has the power to modify the provisions of a legislative enactment in the exercise of its power "by general rules [to] establish, modify, amend, and simplify the practice and procedure in all courts”. Const 1963, art 6, § 5; Pressley v Wayne County Sheriff, 30 Mich App 300 (1971). Therefore, this Court is without power or authority to modify the jurisdiction of the trial courts here involved by adopting the "same transaction” test.
¶19IV
¶20There are two major shortcomings with the adopted "same transaction” test of the majority opinion. The first problem concerns the definition of "transaction.” "Any sequence of conduct can be defined as an 'act’ or a 'transaction.’ An act or *386transaction test itself determines nothing.” Notes and Comments, Twice in Jeopardy, 75 Yale L J 262, 276 (1965). For instance, the majority has concluded that the three identifiable crimes occurred in one continuous sequence to achieve the one purpose of sexual intercourse with the victim. None of these crimes, they state, can be defined as a separate and independent transaction. However, at the same time that the majority so concludes, the legislature has defined each of the acts involved as a separate and independent crime. Thus, it is clear that the majority opinion does not indicate any guidelines by which to determine what the "same transaction” would be.
¶21The second problem involved concerns who is to make the determination whether the crimes committed by the defendant are all a part of the "same transaction” and what the standard of review on the appellate level is to be. The majority opinion indicates that the prosecutor and the trial court are responsible for making the determination. Yet, the majority opinion did not review any findings of the trial court or the prosecutor, and they did not establish any standard of review of any decisions made by the trial court or prosecutor. In fact, the majority made their own findings of fact after all the evidence was completed in both trials, and then made their own conclusions of law thereon. There is no authority cited whereby this Court has the power or the authority to hear criminal cases de novo.
¶22V
¶23Even if the "same transaction” test could be properly adopted, there still is no basis for reversing the defendant’s convictions under the facts of the instant case. The defendant was arraigned in *387the Detroit Recorder’s Court on the charge of rape on February 21, 1968. He was arraigned in Inkster, Michigan, on February 28, 1968, on the charge of kidnapping. On March 4, 1968, the preliminary examination on the rape charge was held in Detroit Recorder’s Court and the preliminary examination on the charge of kidnapping was held in Inkster on March 6, 1968. On none of these occasions did the defendant ask for consolidation of the charges against him, although he definitely knew of all the charges and he had an opportunity to ask for such consolidation. There may be many situations where a defendant may not desire consolidation of charges against him because of their possible prejudicial effect. Because the "same transaction” test is for the benefit of the defendant, he should be required to exercise an option as to whether he wants charges against him consolidated before the first trial commences. Because the defendant waited until after the first trial before he raised the issue of double jeopardy and asserted the new rule of law now adopted by the majority, he should not be allowed to take advantage of his delay in raising his objections.
¶24VI
¶25Assuming without determining that the "one transaction” rule set forth in the majority opinion should be applied to the facts in the instant appeal, it is evidént that the Recorder’s Court for the City of Detroit would be the only court that could have jurisdiction of all three of the charged offenses, i.e., the rape and felonious assault crimes were committed wholly in the City of Detroit, thus precluding jurisdiction being, in the Circuit Court for Wayne County, People v Rosa, supra.Certainly, in applying any "single transaction” rule *388requiring all charges to be contained in a single indictment or information, such rule should not in all fairness to the people of the State of Michigan permit a court that has jurisdiction of only one of the three committed offenses to preempt a legal proceeding in another court that has, exclusive jurisdiction of two of the three charges and concurrent jurisdiction over the remaining charge, by reason of the fact that a part of the kidnapping extended into the City of Detroit. Further, the proceedings and consequent jurisdiction in the Recorder’s Court preceded in time by several days the proceedings in the Wayne Circuit Court. The Recorder’s Court in criminal cases has the same jurisdiction as a circuit court in like cases. People v Rosa, supra;MCLA 726.11; MSA 27.3561. The Detroit Recorder’s Court obtained jurisdiction first. The subsequent Wayne Circuit Court criminal action did not oust the Recorder’s Court of its prior lawful jurisdiction. People v Hanrahan, 75 Mich 611 (1889). Although the issue is not before us, if one of the two court actions must be set aside, that of the circuit court must be that one.
¶26I vote to affirm the convictions in the Detroit Recorder’s Court.