¶1dissenting.
¶2I must respectfully dissent from the majority opinion because the Mason County prosecution was based on unlawful retention of the stolen property, whereas the Bourbon County prosecution was based on illegal disposition of the stolen property. Consequently, the double jeopardy analysis does not apply in this situation.
¶3K.R.S. 514.110, Receiving Stolen Property, penalizes either the receipt, retention or disposition of the property. The Mason County prosecution, pursuant to the indictment, was based on the retention and possession of the .357 handgun and Uzi assault weapon. The Mason County indictment does not make any allegation about unlawful disposition. The Bourbon County prosecution was clearly founded on the third theory of receiving stolen property which relates to illegal disposition.
¶4The evidence indicates that Cooley obtained 26 stolen firearms in Mason County. All of these weapons were then transported by him from Mason to Bourbon County where 24 were disposed of by sale to various persons. Two of the guns were kept by Cooley and taken back to Mason County. The sales in Bourbon County were the basis of the indictment which alleged that Cooley retained or disposed of the handguns and it was on the illegal disposition or sale that the Bourbon County prosecution rested.
¶5Palmore’s Instructions to Juries (1975) § 4.12 provides a form in regard to receiving stolen property for either of the three theories upon which a prosecution under the statute can be based. The instruction in the Mason County case did not involve disposition and Cooley did not object to the instructions.
¶6Jones v. Commonwealth, Ky., 756 S.W.2d 462 (1988) held that double jeopardy was a bar to prosecution when the impulse was single and one indictment lies, no matter how long the action may continue. Here, Cooley had different impulses, to-wit: 1) to retain in Mason County and 2) another to dispose of in Bourbon County.
¶7Tribbett v. Commonwealth, Ky., 561 S.W.2d 662 (1978), states that the elements of the two crimes may be different in a case involving conviction for burglary and theft arising out of the same transaction. Each of the crimes requires proof of facts that the other does not. In Mason County, it had to be proven that Cooley retained the .357 and the Uzi whereas in Bourbon County it had to be proven that he disposed of the other 24 guns.
¶8The majority’s reliance on Ingram v. Commonwealth, Ky., 801 S.W.2d 321 (1990) is misplaced. In that case, there was a single impulse in the sale of two *94marijuana cigarettes in a prohibited school zone. Here there were clearly separate impulses which were totally different in character. The Mason County impulse was to retain the weapons where in the Bourbon County case the impulse was to sell or dispose of the weapons. The illegal conduct was not continuous. There were two, separate, criminal impulses. The retention of the stolen property and its disposition was not a single action but multiple actions which took place at different times and in different places.
¶9As I have previously noted in my dissent in Fair v. Commonwealth, Ky., 652 S.W.2d 864 at p. 868 (1983), the mere fact that a variety of property was taken at one time does not automatically provide a kind of judicially approved volume discount for the theft. The same principle applies to receiving stolen property. There is no reason for a criminal to limit his loot or the retention or reception of any stolen property if the criminal does not incur a greater penalty because of how much or how often he steals, or how much he retains or disposes of stolen property. The same philosophy was expressed in my dissent in Jackson v. Commonwealth, Ky., 670 S.W.2d 828 (1984).
¶10There is no incentive for the criminal conduct to cease and consequently no reason for the criminal to embark on a program of rehabilitation.
¶11It should be noted that Kentucky has long held that there could be different parts in a continuing criminal transaction which are separate offenses and may be separately prosecuted. The rule that a single criminal action cannot be split into separate offenses is not necessarily applicable if different parts of a continuous criminal transaction or series of acts are separate offenses and can be separately proven. Newton v. Commonwealth, 198 Ky. 707, 249 S.W. 1017 (1923); see my dissenting opinion in Ingram v. Commonwealth, supra.
¶12It should be observed that neither the Kentucky Constitution nor the Federal Constitution should be interpreted or applied as a haven for those who would seek to avoid the consequences of criminal acts. The Constitutions of Kentucky and the United States provide protection for all of the citizens, not just those who are accused of criminal acts.
¶13The majority embarks on an analysis of the traditional test for determining successive prosecutions and its relation to double jeopardy , principles. I must confess to be somewhat confused by the approach used by the majority in this case. It relies on Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) and then asserts that we have held the Kentucky Constitution to be coextensive with the Federal Constitution in Ingram, supra.The difficulty I encounter is that Ingramclaims to be in concert with Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). It is not clear whether the majority opinion rests on separate, adequate and independent Kentucky principles or whether the majority as it states believes that federal law compelled its conclusion. It does seem that the majority appears to have interwoven federal and state principles.- It is not clear that the defendant’s rights under the state constitution were distinct from or broader than his rights under the federal constitution.
¶14The exact analytical legal approach to be applied to this situation may be in doubt, but what is not in doubt is that the Mason County prosecution was based on unlawful retention of property whereas the Bourbon County prosecution was based on illegal disposition of property and double jeopardy under either federal or state law does not apply. The illegal conduct was not continuous and there were two separate criminal impulses. If the majority opinion is indeed the law of Kentucky, then the General Assembly should reexamine its approach to K.R.S. 514.110.
¶15The majority determines that Grady v. Corbin, supra,is dispositive in this instance. Gradywas one of the last opinions written by Justice Brennan for a closely divided United States Supreme Court, and it held that the double jeopardy clause of the Federal Constitution bars a subsequent prosecution if, to establish an essential ele*95ment of an offense charged in that prosecution, the government will prove conduct which constitutes an offense for which the defendant had already been prosecuted. The U.S. Supreme Court adopted the dicta of Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).
¶16The U.S. Supreme Court states in part that the double jeopardy clause protects against a second prosecution for the same offense after an acquittal and against a second prosecution for the same offense after a conviction and also protects against multiple punishments for the same offense. That is clearly not the case in this situation. The facts here indicate two distinct criminal acts in two different counties at two different times.
¶17It is a fundamental principle of criminal law that no person is to be placed in jeopardy twice for the same offense. Double jeopardy is a simple term readily understood by lawyers and lay people. The Kentucky Constitution § 13 in pertinent part provides that “No person shall, for the same offense, be twice put in jeopardy.” (Emphasis added.) Such is not the case here.
¶18I would affirm the conviction in all respects.
¶19REYNOLDS and SPAIN, JJ., join in this dissent.