concurring.
I write only to express my disagreement with the analysis of that portion of the principal opinion reversing the sodomy conviction. Defendant was convicted of sodomy and second degree “felony” murder committed in the perpetration of the sodomy. The majority’s reliance on State v. Olds, 603 S.W.2d 501, 509-10 (Mo. banc 1980), in reversing defendant’s sodomy conviction, compounds this Court’s faulty analysis and conclusion in Olds (and its progeny) that the legislature did not intend to authorize multiple punishment on convictions of first degree felony murder and the felony (kidnapping) in connection with the killing. In summarily concluding that “it cannot be demonstrated that the Missouri legislature intended to allow a court to separately punish a defendant both for felony-murder and the underlying felony...” because the relevant statutes do not contain a legislative “directive that a defendant may be separately punished if one offense is determined to be a lesser included of the other,” 603 S.W.2d at 510, this Court in Olds ignored more than seventy years of Missouri legal history in which it has been completely undisputed that a defendant may be convicted of both felony murder and the underlying felony.
In 1910, obviously recognizing that conviction and punishment for both felony murder and the accompanying felony were permissible under the statutes, this Court held that acquittal of the murder charge does not bar subsequent prosecution for the felony. State v. Bobbitt, 228 Mo. 252, 128 S.W. 953, 960 (1910). Twenty years later, upholding the principle of dual convictions, this Court affirmed a conviction for robbery obtained after defendant pled guilty to murder. State v. Moore, 326 Mo. 1199, 33 S.W.2d 905 (1930). In State v. Chambers, 524 S.W.2d 826 (Mo. banc 1975), cert. denied, 423 U.S. 1058, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976), this Court permitted multiple punishments for felony murder and stealing, determining that the two convictions were not violative of the double jeopardy clause, as each crime required proof of an essential element that the other did not (killing in the case of a murder, and taking of property for stealing). 524 S.W.2d at 829. Intent to commit the underlying felony was the only element common to both. 524 S.W.2d at 829. We reaffirmed the tenets of Chambers in State v. Overstreet, 551 S.W.2d 621, 630 (Mo. banc 1977).
During these seventy years, our legislature has never amended the Missouri statute interdicting felony murder, nor enacted a prohibition, so as to preclude our consistent interpretation permitting conviction and punishment for both felony murder and the underlying felony. I believe the Court erred in Olds by disregarding almost three-quarters century of legislative acquiescence and repeated reenactment of the felony murder statutes demonstrating legislative approval of the cases construing the statutes. Yet, from all this the Court could find no intention of the General Assembly to separately punish one convicted of the felony and the attendant killing. To the contrary, the existence of the two statutes, criminalizing murder in connection with sodomy and the sodomy, coupled with such acquiescence in the unambiguous judicial interpretation, demonstrates the legislature’s abhorrence of the two evils flowing from such despicable conduct and intent to proscribe and punish for both. See, Albernaz v. United States, - U.S. -, -, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981). Additionally, it should be noted that a de*58termination the legislature intended to authorize multiple punishment forecloses any further double jeopardy inquiry. Dealing with these precise problems, the United States Supreme Court stated in Albernaz, “the question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishment, .imposition of such sentences does not violate the Constitution.” - U.S. -, -, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275.
Nevertheless, I am constrained by Olds to concur in the result reversing the sodomy conviction and further concur in affirmance of the murder conviction.