Neely, Chief Justice:
In the case of State ex rel. Dowdy v. Robinson, _ W.Va. _, 257 S.E.2d 167 (1979) we adopted “both the ‘same evidence’ test and the ‘same transaction’ test for determining whether the ‘same offense’ is involved for double jeopardy purposes with an accompanying rule that whichever test affords the defendant the greater protection against potential unconstitutional double jeopardy must be applied.” We explained the “same transaction” test by illustration and pointed out that if a defendant were arrested for both kidnapping and robbing a victim at the same time then, under the “same [684]*684transaction” test, the two offenses would be the “same offense” for double jeopardy purposes. We qualified that statement, however, by indicating that the “same transaction” test will not mandate one prosecution for crimes growing out of different occurrences even though closely related in time, and we used the example of a person committing one murder at 6:00 p.m. and an unrelated second murder at 6:30 p.m. The Court then said:
If a person were to murder two people at the same time a closer case would be presented, and whether it were double jeopardy to have separate prosecutions would depend upon the nature of the evidence presented. For example, if the defense were self-defense on the grounds that the two victims had attacked the defendant, then it would seem unfair to try the defendant twice for essentially the same transaction, but we leave that question to a future day. (Dowdy v. Robinson, supra, _ W.Va. _, 257 S.E.2d at 170.)
We now have before use exactly the hypothetical case which was presented in our discussion in Dowdy and we are compelled to answer the question. On March 6, 1979, Leo Johnson was indicted by the Grand Jury of Pendleton County on two separate indictments for the murder of Roy Lee Huffman and Earl Huffman. On April 26, 1979 Leo Johnson was tried and found guilty of the first degree murder of Roy Lee Huffman with a recommendation of mercy. Roy Lee Huffman was the son of Earl Huffman and the shooting incident arose out of a running dispute between the defendant, Leo Johnson, and Earl Huffman over a right-of-way.
On March 3, 1979, at approximately 7:00 a.m., Earl Huffman and his two sons, Roy Lee and John were clearing brush on the disputed property, with the eldest Huffman using a chain saw. Leo Johnson approached and an argument ensued between Johnson and Earl Huffman. John Paul Huffman testified at the first trial that he saw Leo Johnson first shoot his father, Earl, shoot at him, and shoot twice at his brother, Roy Lee. [685]*685According to the representations of counsel, Leo Johnson claims that he fired at Earl Huffman only in self defense when he was attacked by Earl Huffman wielding the chain saw; however, Leo Johnson did not take the witness stand to testify in his own behalf at the first trial. Relying upon the case of State ex rel. Dowdy v. Robinson, supra, the relator sought a writ of prohibition from this Court to prohibit a second trial for the murder of Earl Huffman on the grounds of double jeopardy.
I
Initially it is important to point out that the first trial for the killing of Roy Lee Huffman occurred two months before our opinion in Dowdy v. Robinson was handed down. Furthermore, counsel in this Court stipulated that the relator did not move for a joint trial on the two separate indictments but merely requested from the prosecutor an indication as to which indictment would be tried first. The Court infers from the arguments of counsel and the stipulation in open court that it was assumed that under prior practice the State had a right to try the defendant for each separate alleged murder and, prior to Dowdy, supra, such a procedure would have been perfectly acceptable under West Virginia law. State v. Daniel, 144 W.Va. 551, 109 S.E.2d 32 (1959); Lawrence v. Commonwealth, 181 Va. 582, 26 S.E.2d 54 (1943); cf. State v. Houchins, 102 W.Va. 169, 134 S.E. 740 (1926).
Our discussion in the Dowdy case concerning proper rules for implementing the W. Va. Const.’s prohibition against double jeopardy indicates that our selection of the “same transaction” test and “same evidence” test, depending upon which is more favorable to the defendant, is a matter of policy which goes to the appropriate procedure for securing a fundamental right. We even implied that the Dowdy case was not to be given retroactive application when we said in syllabus point one: “In West Virginia the term ‘same offense’ [sic] as used in the double jeopardy provision of W. Va. Const., art. 3, § 5 shall be defined. . .” Dowdy v. Robinson, supra, _ W.Va. at _, 257 S.E.2d at 168. (emphasis supplied [686]*686by Court). While we have frequently disparaged distinctions between procedural law and substantive law when the former is used to achieve results which are forbidden by the latter, Pnakovich v. State Workmen’s Compensation Comm’r, _ W.Va. _, 259 S.E.2d 127 (1979), nonetheless, there are occasions when the distinction is justified.
Dowdy v. Robinson, supra was intended to establish an orderly, prospective procedure for avoiding multiple prosecutions for successive criminal acts arising out of the same general criminal transaction. Both because Dowdy v. Robinson had not been decided at the time the first prosecution now under consideration occurred and because there was no motion by the defendant to have the two cases tried together, we conclude that to make Dowdy retroactive in the case before us would have the effect of charging the State with knowledge of a procedural change in the law which they could not have foreseen.
In determining whether to apply a change in the decisional law retroactively, the fundamental principle to which we have looked is reliance. Pnakovich v. State Workmen’s Compensation Comm’r, _ W.Va. _, 259 S.E.2d 127 (1979); Bradley v. Appalachian Power Co., _ W.Va. _, 256 S.E.2d 879 (1979). Since a person or the State should be able to plan the course of civil or criminal litigation with reasonable reliance on current procedural rules, the reliance of the prosecution is an important element in considering whether to apply today’s rule retroactively. Therefore since there is no substantial impairment of the truth finding function, Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L. Ed. 2d 388 (1971), we conclude that this is not a change in decisional law requiring retroactive application. In this particular instance the defendant must be tried for the other murder. A defendant tried before Dowdy cannot be relieved by fortune of punishment for each separate offense. Consequently, notwithstanding the opportunity which this case affords the Court to determine the proper prospective procedure for handling a case in which [687]*687two people are killed at the same time, the writ of prohibition prayed for in this case is denied.
II
The Dowdy case itself may have given rise to legitimate confusion because it was not sufficiently explicit in its analysis of double jeopardy. The constitutional prohibition in W. Va. Const., Art. III, sec. 5 against double jeopardy has two elements: first, a protection against multiple trials for the “same offense” Ex Parte Bornee, 76 W.Va. 360, 85 S.E.
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Neely, Chief Justice:
In the case of State ex rel. Dowdy v. Robinson, _ W.Va. _, 257 S.E.2d 167 (1979) we adopted “both the ‘same evidence’ test and the ‘same transaction’ test for determining whether the ‘same offense’ is involved for double jeopardy purposes with an accompanying rule that whichever test affords the defendant the greater protection against potential unconstitutional double jeopardy must be applied.” We explained the “same transaction” test by illustration and pointed out that if a defendant were arrested for both kidnapping and robbing a victim at the same time then, under the “same [684]*684transaction” test, the two offenses would be the “same offense” for double jeopardy purposes. We qualified that statement, however, by indicating that the “same transaction” test will not mandate one prosecution for crimes growing out of different occurrences even though closely related in time, and we used the example of a person committing one murder at 6:00 p.m. and an unrelated second murder at 6:30 p.m. The Court then said:
If a person were to murder two people at the same time a closer case would be presented, and whether it were double jeopardy to have separate prosecutions would depend upon the nature of the evidence presented. For example, if the defense were self-defense on the grounds that the two victims had attacked the defendant, then it would seem unfair to try the defendant twice for essentially the same transaction, but we leave that question to a future day. (Dowdy v. Robinson, supra, _ W.Va. _, 257 S.E.2d at 170.)
We now have before use exactly the hypothetical case which was presented in our discussion in Dowdy and we are compelled to answer the question. On March 6, 1979, Leo Johnson was indicted by the Grand Jury of Pendleton County on two separate indictments for the murder of Roy Lee Huffman and Earl Huffman. On April 26, 1979 Leo Johnson was tried and found guilty of the first degree murder of Roy Lee Huffman with a recommendation of mercy. Roy Lee Huffman was the son of Earl Huffman and the shooting incident arose out of a running dispute between the defendant, Leo Johnson, and Earl Huffman over a right-of-way.
On March 3, 1979, at approximately 7:00 a.m., Earl Huffman and his two sons, Roy Lee and John were clearing brush on the disputed property, with the eldest Huffman using a chain saw. Leo Johnson approached and an argument ensued between Johnson and Earl Huffman. John Paul Huffman testified at the first trial that he saw Leo Johnson first shoot his father, Earl, shoot at him, and shoot twice at his brother, Roy Lee. [685]*685According to the representations of counsel, Leo Johnson claims that he fired at Earl Huffman only in self defense when he was attacked by Earl Huffman wielding the chain saw; however, Leo Johnson did not take the witness stand to testify in his own behalf at the first trial. Relying upon the case of State ex rel. Dowdy v. Robinson, supra, the relator sought a writ of prohibition from this Court to prohibit a second trial for the murder of Earl Huffman on the grounds of double jeopardy.
I
Initially it is important to point out that the first trial for the killing of Roy Lee Huffman occurred two months before our opinion in Dowdy v. Robinson was handed down. Furthermore, counsel in this Court stipulated that the relator did not move for a joint trial on the two separate indictments but merely requested from the prosecutor an indication as to which indictment would be tried first. The Court infers from the arguments of counsel and the stipulation in open court that it was assumed that under prior practice the State had a right to try the defendant for each separate alleged murder and, prior to Dowdy, supra, such a procedure would have been perfectly acceptable under West Virginia law. State v. Daniel, 144 W.Va. 551, 109 S.E.2d 32 (1959); Lawrence v. Commonwealth, 181 Va. 582, 26 S.E.2d 54 (1943); cf. State v. Houchins, 102 W.Va. 169, 134 S.E. 740 (1926).
Our discussion in the Dowdy case concerning proper rules for implementing the W. Va. Const.’s prohibition against double jeopardy indicates that our selection of the “same transaction” test and “same evidence” test, depending upon which is more favorable to the defendant, is a matter of policy which goes to the appropriate procedure for securing a fundamental right. We even implied that the Dowdy case was not to be given retroactive application when we said in syllabus point one: “In West Virginia the term ‘same offense’ [sic] as used in the double jeopardy provision of W. Va. Const., art. 3, § 5 shall be defined. . .” Dowdy v. Robinson, supra, _ W.Va. at _, 257 S.E.2d at 168. (emphasis supplied [686]*686by Court). While we have frequently disparaged distinctions between procedural law and substantive law when the former is used to achieve results which are forbidden by the latter, Pnakovich v. State Workmen’s Compensation Comm’r, _ W.Va. _, 259 S.E.2d 127 (1979), nonetheless, there are occasions when the distinction is justified.
Dowdy v. Robinson, supra was intended to establish an orderly, prospective procedure for avoiding multiple prosecutions for successive criminal acts arising out of the same general criminal transaction. Both because Dowdy v. Robinson had not been decided at the time the first prosecution now under consideration occurred and because there was no motion by the defendant to have the two cases tried together, we conclude that to make Dowdy retroactive in the case before us would have the effect of charging the State with knowledge of a procedural change in the law which they could not have foreseen.
In determining whether to apply a change in the decisional law retroactively, the fundamental principle to which we have looked is reliance. Pnakovich v. State Workmen’s Compensation Comm’r, _ W.Va. _, 259 S.E.2d 127 (1979); Bradley v. Appalachian Power Co., _ W.Va. _, 256 S.E.2d 879 (1979). Since a person or the State should be able to plan the course of civil or criminal litigation with reasonable reliance on current procedural rules, the reliance of the prosecution is an important element in considering whether to apply today’s rule retroactively. Therefore since there is no substantial impairment of the truth finding function, Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L. Ed. 2d 388 (1971), we conclude that this is not a change in decisional law requiring retroactive application. In this particular instance the defendant must be tried for the other murder. A defendant tried before Dowdy cannot be relieved by fortune of punishment for each separate offense. Consequently, notwithstanding the opportunity which this case affords the Court to determine the proper prospective procedure for handling a case in which [687]*687two people are killed at the same time, the writ of prohibition prayed for in this case is denied.
II
The Dowdy case itself may have given rise to legitimate confusion because it was not sufficiently explicit in its analysis of double jeopardy. The constitutional prohibition in W. Va. Const., Art. III, sec. 5 against double jeopardy has two elements: first, a protection against multiple trials for the “same offense” Ex Parte Bornee, 76 W.Va. 360, 85 S.E. 529 (1915); second, protection against multiple punishments for the “same offense.” Conner v. Griffith, _ W.Va. _, 238 S.E.2d 529 (1977); and, State v. Kiger, 103 W.Va. 55, 136 S.E. 607 (1927). It is important to distinguish which principle of double jeopardy protection is involved when a defendant makes a general plea of double jeopardy. The “same transaction” test which we adopted in Dowdy, supra goes to the issue of multiple trials for the “same offense” but it does not preclude separate punishments for separate crimes.
In the Dowdy case we discussed a hypothetical case in which an individual committed armed robbery and kidnapping at the same time, but we did not say, nor did we imply, that both robbery and kidnapping could not be punished as separate, distinct crimes. We did say, however, that if both offenses arose out of the “same transaction” they must be tried together unless the defendant moved for a severance. In a case involving murders, such as the one currently under consideration, we hold that in the future a person must be tried for both alleged murders in the same trial unless he moves for a severance, but that he may be punished for both murders separately because they are separate and distinct offenses.
It should be obvious that there are lesser included offenses which are part of greater crimes, so that malicious wounding is an integral part of murder, petty larceny may be an integral part of armed robbery, and attempted larceny may be an integral part of burglary. It has always been the law that a person cannot be [688]*688punished for both a lesser included offense and the greater crime when the elements of the first are necessarily included in the elements of the second. State v. Cross, 44 W.Va. 315, 29 S.E. 527 (1898); Myers v. Commonwealth, 148 Va. 725, 138 S.E. 483 (1927); cf. State v. Wisman, 93 W.Va. 183, 116 S.E. 698 (1923). That is certainly not the case, however, with cases involving two separate murders, robbery and kidnapping, or burglary and rape.
The State asserts in its brief that it does not believe that an indictment can be drawn which contains two separate counts of murder. Our research of the law discloses in great detail that a multi-count indictment setting forth in separate counts each separate and distinct offense arising out of the same transaction is perfectly permissible. State v. Cutlip, 131 W.Va. 141, 46 S.E.2d 454 (1948); State v. Masters, 106 W.Va. 46, 144 S.E. 718 (1928); State v. Tomlin, 86 W.Va. 300, 103 S.E. 110 (1920). The Court can envisage occasions where a trial for multiple but distinct offenses arising out of the same transaction might, indeed, prejudice the defendant in his defense of any one of the alleged offenses. In such a circumstance the defendant may move for a severance, but that contemplates an automatic waiver of a subsequent plea of double jeopardy.
Ill
Our policy regarding multiple trials for offenses arising from the same transaction emanates from a recognition that it has occasionally been the practice to divide one criminal transaction into as many distinct offenses as possible in order to provide the State with multiple opportunities to secure a conviction. State v. Taylor, 130 W.Va. 74, 42 S.E.2d 549 (1947); and State v. Watson, 99 W.Va. 34, 127 S.E. 637 (1925). Frequently in the trial of one offense the defendant is capable of establishing a defense, such as alibi, that would prove him innocent of all other offenses; however, he is often put to the time and expense of defending against the other charges as well. A plea of autrefois acquit, the criminal law equivalent of the civil law’s doctrine of res judicata, Connelly v. [689]*689Director of Public Prosecutions, [1964] A.C. 1254 (see the opinion of Lord Devlin at 1356) is not an effective protection against vexatious litigation in criminal trials because most criminal trials are decided by a general verdict which makes it difficult to decide which discrete issues were determined by the jury. The procedure of either multiple count indictments or separate indictments tried simultaneously provide the defendant with an opportunity to make his defense once and thus spare himself multiple trials. Based upon the common law doctrine of autrefois convict, the English courts have adopted the “same transaction test” as a rule of orderly criminal procedure for exactly the same policy reasons which we enunciate today notwithstanding that they are not compelled to do so by any equivalent of our own double jeopardy clause. Connelly, supra.
For the reasons assigned above the writ of prohibition for which the petitioner prays is denied.
Writ denied.