(dissenting in part and concurring in part).
The majority rejects appellant’s contention that I.C. § 18-301 precludes the prosecution of the first degree murder charge. With this I agree, but on a basis other than that of the majority.
The statute in question does indeed adopt the “same act” test. It prevents multiple prosecution for various crimes which arise from the same act. The majority finds that the statute is inapplicable due to the holding in State v. Randolph, 61 Idaho 456, 102 P.2d 913 (1940), that “ensuing death is a sufficient additional act * * * ” to remove the factual situation from the statute.
I find this to be a far from acceptable approach. The statute is directed to the act of the accused. The act in question was Brusseau’s firing the pistol at Arriola’s head. The inquiry under the statute is to be made into the facts and intent involved in that shot. Arriola’s death was *562not an act by Brusseau. Granted, it is an additional fact, but the literal language of the statute is not directed toward facts. The statute focuses on acts of the accused.
Rather than distort the statute to reach a somewhat skewed interpretation, I believe it preferable to acknowledge an assault/murder exception to the “same act” test. Special policy considerations are involved in factual situations like that now before us. Clearly the accused is entitled to a speedy trial and society is entitled to exact a penalty should conviction result. As noted in Randolph, the state cannot be expected to wait a year and a day to determine whether an assault victim will survive his injuries. Thus, while I disagree with the majority’s approach, I concur in the result as to the double prosecution question.
It is on the double punishment issue that I respectfully dissent from the majority opinion. Assuming arguendo that the victim’s death results in a new “act” or “fact” sufficient to remove the case from I.C. § 18-301 and allow a second prosecution, why does the majority hold that the same statute precludes double punishment ? The majority distinguishes away several cases, but fails to offer supporting authority other than the statute itself. If the death is a new “act” for prosecution, it must be a new “act” for punishment. Yet the majority will not continue the distortion to its inescapable, although illogical conclusion.
Finally, the majority, faced with throwing out one of the sentences, declares that to avoid a manifest miscarriage of justice the longer sentence must be affirmed. Thus, the majority in essence overrules a jury determination that Brusseau is guilty only of voluntary manslaughter. Hence, the majority by round-about means obtains a result not available directly since the record supports the jury’s finding sufficiently to preclude a reversal by ordinary appellate means. This result I cannot accept.
Policy considerations clearly demand a second trial in this factual situation. Yet, I believe that should the prosecution elect to initiate a second proceeding and present the facts again together with the new additional facts to a jury that the prosecution should be bound by that decision and it should stand alone.
The method of raising the issue of the propriety of the first judgment and sentence would vary with the timing of the second charge. The issue could be raised with a motion for arrest of judgment pursuant to I. C. § 19-2408, a motion for withheld judgment pursuant to I.C. § 19-2511, an appeal to this Court, or an application under the Uniform Post-Conviction Procedure Act, I.C. § 19-4901 et seq.1 Obviously any motion or appeal must be made in a timely manner.
As a result of a second proceeding, the first judgment of conviction and sentencing will either be submerged as a lesser included offense or be set aside as not supported by the evidence as determined by a duly empaneled jury of the accused’s peers. In this case I would affirm the ten year sentence and vacate the fourteen year sentence under I.C.R. 35.
For these reasons I concur in part and dissent in part.
. Of particular value to a defendant in a situation like the one now before the Court would be I.C. § 19-4901 (a) (4) which reads as follows:
“Any person who has been convicted of, or sentenced for, a crime and who claims:
(4) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice.