This is an appeal from a judgment of conviction of voluntary manslaughter. The principal issue is the claim of former jeopardy presented by the classic hornbook facts. Appellant Brusseau, upon a plea of guilty, was convicted of assault with intent to murder; approximately one month later the victim died and appellant was then charged with murder in the first degree.
On October 4, 1971 during an altercation in Lewiston, Idaho, defendant-appellant Brusseau shot one Mike Arriola. On October 13, 1971 Brusseau waived his right to a preliminary hearing and an information was lodged charging him with assault with a deadly weapon with intent to murder. Brusseau was arraigned and informed of the charges against him. At the time the district court advised him that Arriola was not expected to survive and if the victim died the prosecution might seek a first degree murder conviction. Brusseau pleaded guilty to the assault information and requested immediate sentencing. On October 22, 1971 he was sentenced to an indeterminate term of imprisonment not to exceed 14 years.
Arriola died on November 24, 1971 and Brusseau was immediately charged with murder in the first degree. Following a preliminary hearing, probable cause was found and Brusseau was bound over for trial. Brusseau moved to dismiss the murder charge on grounds of former jeopardy and that motion was denied. Brusseau petitioned this court for a writ of prohibition which was likewise denied. Following a jury trial Brusseau was found guilty of voluntary mansiaugnter anu semenced to an indeterminate term not to exceed ten years on that charge, the maximum term authorized by I.C. § 18-4007. That sentence was designated to run concurrently with the sentence imposed on the assault charge. Appeal is taken from the order of the district court denying defendant’s motion to dismiss the murder charge and the judgment of conviction and sentence for manslaughter.
The general rule appears to be that if following a prosecution a new fact develops for which the defendant is responsible and the new fact, plus those previously existing constitute a new crime not susceptible of adjudication in the first prosecution the determination of the first proceeding is not a bar to a prosecution for the newly developed crime. 21 Am.Jur.2d, Criminal Law, § 186; Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); State v. Thomas, 114 N.J.Super. 360, 276 A.2d 391 (1971); cf. Annot. 11 A.L.R.3d 834 (1967).
Although no federal or state constitutional issue is raised herein we note that the language of the Fifth Amendment of the U.S. Constitution “ * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * * ” differs from the language of article 1, sec. 13 of the Idaho constitution which states “No person shall be twice put in jeopardy for the same offense ‡ s|c ‡
I.C. § 18-301 provides:
“Acts punishable in different ways — ■ Double jeopardy. — An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”
By legislative pronouncement, Idaho has thus adopted what approximates the “same act” test for double jeopardy and both par*560ties to some extent rely upon Idaho case law interpretative of that statute.
The state asserts that State v. Randolph, 61 Idaho 456, 102 P.2d 913 (1940) is controlling herein on the interpretation of I.C. § 18-301, supra, and we agree. In Randolph the interpretation of the same statute was at issue and the facts were substantially similar to the case at bar. There the defendant was charged with criminal assault and battery and immediately pleaded guilty. Prior to sentencing, the victim died and defendant was then charged with murder in the second degree. The defendant was sentenced to four months imprisonment upon the assault and battery charge and, after having later pleaded former jeopardy unsuccessfully, was convicted of manslaughter and sentenced therefor. The court in Randolph held that the second action was not barred by § 17-301, I.C.A. [precursor of I.C. § 18-301], stating, “The courts under statutes similar to [I.C. § 18-301] have held that ensuing death is a sufficient additional act * * * to prevent a plea of previous jeopardy on a prosecution of a lesser offense prior to death, from barring a subsequent prosecution for a homicide charge.”
Appellant seeks to distinguish Randolph and cites the earlier case of State v. Gutke, 25 Idaho 737, 139 P. 346 (1914). We deem Gutke clearly distinguishable from the case at bar in that there the defendant was tried and acquitted upon a charge of selling beer to a minor and thereafter charged and convicted of selling intoxicating beverages within a prohibition district. The second charge arose out of the same sale as did the first and judgment of conviction therein was reversed. No additional fact or circumstance had developed following the trial for the first charge.
Since the penal code of California is virtually identical to the Idaho statute, both parties herein cite case law of California as support for their respective positions. See Neal v. State, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839 (Cal.1960), cert. denied 365 U.S. 823, 81 S.Ct. 708, 5 L.Ed.2d 700 (1961); Kellett v. Superior Court of Sacramento County, 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206 (Cal. 1966). We deem both those cases clearly distinguishable from the case at bar on the same basis as State v. Gutke, supra. See also Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Ciucci v. State of Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983 (1958); Diaz v. United States, 223 U. S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912).
It is argued that somehow there has been a merger of the first conviction into the second and therefore the conviction and sentence for assault should be set aside and vacated. That argument ignores the fact that no appeal was timely filed from that first conviction and the appeal before us is only from the conviction and sentence for voluntary manslaughter “made and entered in the above entitled action in the above entitled court on the 30th day of November, 1972.” See also Carmody v. Seventh Judicial District Court, 81 Nev. 64, 398 P.2d 706 (1965) (citing State v. Hall, 86 Idaho 63, 383 P.2d 602 [1963]).
We turn now to the more vexing question raised by the pertinent portion of I.C. § 18-301 providing:
“An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; * * * ” (Emphasis supplied)
In State v. Randolph, supra, the statutory provision against multiple punishment was not addressed. The sole concern of the court therein was multiple prosecution. The proscription against multiple prosecution does not bar a second prosecution when an additional fact or circumstance has developed following the first prosecution which subjects a defendant to criminal liability for a larger or more serious offense. Nevertheless our statute proscribes multiple punishment of a defendant in such circumstances.
It would be a manifest miscarriage of justice to permit a defendant to escape *561prosecution and punishment for murder merely because his victim proved to be a reluctant corpse and did not die for some months, particularly where as here the defendant demands a speedy disposition of the charges then available to be filed against him, together with an immediate sentencing. Such should be no guarantee to the defendant that he would not later have to stand trial for the more serious crime in the event of the death of his victim. Here the defendant was made fully aware of the risk that he ran in entering his initial guilty plea and requesting immediate sentencing. In Ciucci, supra, and Williams v. Oklahoma, 358 U.S. 576, 79 S. Ct. 421, 3 L.Ed.2d 516 (1959), however, the question of double punishment was undoubtedly moot since the final prosecution in each of those cases resulted in the imposition of the death penalty upon those defendants.
Cases speaking to the issue of multiple punishment such as Neal, Kellett, People v. Brown, 49 Cal.2d 577, 320 P.2d 5 (1958); People v. Knowles, 35 Cal.2d 175, 217 P.2d 1 (1950); Whitton v. State, 479 P.2d 302 (Alaska 1970) and Gray v. State, 463 P.2d 897 (Alaska 1970) did not arise out of factual circumstances comparable to those present here. The case of People v. Breland, 243 Cal.App.2d 644, 52 Cal.Rptr. 696 (1966) contains a discussion of multiple punishment within a substantially similar factual matrix as in the case at bar, but the remedy fashioned by that court does not address itself to the actual proscription of double punishment, but rather deals only in terms of credit for that portion of the first sentence actually served by the defendant. Such solution is not persuasive here.
In the instant case Brusseau was given the maximum sentence permissible on each offense under the respective statutes. Illogical as it may seem, the legislature has apparently considered that assault with intent to commit murder is the more serious of the two offenses with which Brusseau was charged. The offense of assault with intent to commit murder carries the greater maximum sentence. We hold that the proscription of I.C. § 18-301 prevents double punishment of Brusseau. People v. Jackson, 2 N.Y.2d 259, 159 N.Y.S.2d 203, 140 N.E.2d 282 (N.Y.1957); Ex parte Chapman, 43 Cal.2d 385, 273 P.2d 817 (Cal.1954). Nevertheless the ends of justice would be defeated unless Brusseau were to be punished for what the legislature has established as the more serious offense for which he was sentenced. We reject the argument that the sentences imposed herein do not constitute double punishment since the sentences were to run concurrently. See Whitton v. State, supra; and Gray v. State, supra. Contra People v. Jackson, supra.
Accordingly the sentence of ten years for voluntary manslaughter is hereby vacated. The sentence of fourteen years for assault with intent to commit murder is affirmed.
McQUADE, C. J, and McFADDEN, J., concur.