ON DENIAL OF PETITION FOR REHEARING
BISTLINE, Justice.The Solicitor General of the Attorney General’s Office, by petition for rehearing and supporting brief, has urged upon us that the opinion of the Court, besides being in conflict with previous cases and contrary to legislative intent, creates an unwarranted new standard of factual review, which standard is at odds with the facts, and, moreover is inconsistent with Cabana v. Bullock, — U.S. -, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), which decision in point of time followed the release of Scroggins. In particular, the Solicitor General suggests that under Cabana this Court should uphold “the trial court’s conclusions respecting the personal culpability of Scrog-gins” notwithstanding the verdict of the jury to the contrary.
Without mentioning that Cabana became the opinion of the High Court on the expediency of the Chief Justice joining it to make a majority of five, as against four dissenters, the Solicitor General has asked us to embrace its holding and grant a rehearing toward the end result that Scrog-gins may have the same opportunity to suffer execution as now awaits Beam. The Solicitor General concludes the State’s evaluation of the situation:
A codefendant in this case, Albert Ray Beam, has been sentenced to death and his death sentence upheld on review. Respondent believes the present defendant is equally, if not more, culpable.
My separate opinion in Scroggins may have helped in the formulation of the state’s contention that Scroggins is the more culpable of the two, and certainly not less culpable than Beam. But, wholly unmentioned by the Solicitor General is my suggestion that if Scroggins has been spared, then social justice requires that the less culpable Beam likewise must be spared— else the whole concept of proportionality be turned upon its head. What my earlier Scroggins opinion suggested as to Beam’s fate and total failure of proportionality, even as between these two defendants, has now fully materialized. In the view of many practitioners it is believed that the State — in the office of its attorney general — should be the leader in the quest for as much justice as attainable. Proportionality is a key factor where justice is concerned.
“No” is my vote on the state’s petition for rehearing. Just as it did in State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985) (petition for rehearing denied), the *407Court this day does well to reject the Solicitor General’s invitation to declare ourselves bound by every move which the High Court may make in its high stakes chess game. We are well-guided by the remarks of (then) Chief Justice Shepard, with Justice Donaldson concurring, eight years ago:
In my judgment, this Court today errs in accepting at face value, without sufficient analysis, what a seriously divided United States Supreme Court purportedly stated in Woodson_ Mr. Justice Rehnquist states: “The Court has gone from pillar to post, with the result that the sort of reasonable predictability upon which legislatures, trial courts, and appellate courts must of necessity rely has been all but completely sacrificed.” See Lockett v. Ohio, supra, (Rehnquist, J. dissenting). Mr. Justice White, in Lock-ett, has described the Court’s “about face.” ...
All of this leads to a consideration of Woodson held by today’s majority to be controlling. There three members of the Court join in an opinion which, for some reason, is denominated the “plurality.” That “plurality” opinion states clearly “we reject this argument [that “the imposition of the death penalty is cruel and unusual punishment”]. 428 U.S. p. 285, 96 S.Ct. 2978. Two other members of the Court disagree with that view and state that the death penalty is a cruel and unusual punishment under any circumstances. Three other members of the Woodson court dissented and joined with White, J., in voting for affirmance of the court below. Blackmun, J. dissented on the basis of his “excruciating agony of the spirit” expressed in Fur-man.
What madness is this that denominates such thought process by some members of that Court as the “law of the land” and enjoins on those of us in the law not only the task of attempting to understand, but the clear duty and responsibility to apply its result and “reasoning.”
With all deference and respect to our brethren on the Bench of the United States Supreme Court, I regret that I can neither understand what they have said as a court, where they now stand as a court or where they may be going in this important area of the law involving capital cases and the death penalty. State v. Lindquist, 99 Idaho 766, 773-75, 589 P.2d 101, 108-10 (1979).
Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978), was decided less than eight years ago. That is a very short time in the course of a human life, generally, and even much shorter where the life span under consideration is that of a holding declared by the Supreme Court of the United States.
The Presnell case is deserving of the closest attention, as it was a stumbling block in the way of the Cabana decision— but not too much of an obstacle for five of the justices. Georgia utilizes a two-trial procedure in death penalty cases. The jury first hears and determines the guilt-innocence trial, and then hears evidence and imposes sentence at the penalty trial. The High Court’s per curiam opinion in Pres-nell, on certiorari from the Georgia Supreme Court, is deserving of close consideration:
PER CURIAMPetitioner was indicted and found guilty by a jury of three capital offenses —rape, kidnaping with bodily injury, and murder with malice aforethought. Under Georgia law, a jury may impose the death penalty if it finds that the offender committed a capital felony under at least 1 of 10 statutorily enumerated aggravating circumstances. Ga.Code § 27-2534.-1(b) (1975). The only such circumstance relevant here is that
“[t]he [capital] offense ... was committed while the offender was engaged in the commission of another capital felony....” § 27-2534.1(b)(2).
At the penalty phase of petitioner’s trial, the jury was instructed that it could impose the death penalty (1) for rape if that offense was committed while peti*408tioner was engaged in the commission of murder, (2) for kidnaping with bodily injury if that offense was committed while petitioner was engaged in the commission of rape, or (3) for murder if that offense was committed while petitioner was engaged in the commission of “kid-naping with bodily harm, aggravated sodomy.” The jury found that all three offenses were committed during the commission of the specified additional offenses, and it imposed three death sentences on petitioner.
On appeal, the Supreme Court of Georgia held that the first two death sentences imposed by the jury could not stand. 241 Ga. 49, 52, 64, 243 S.E.2d 496, 501, 508 (1978). Both sentences depended upon petitioner’s having committed forcible rape, and the court determined that the jury had not properly convicted petitioner of that offense.
In addition, the Supreme Court of Georgia held that the State could not rely upon sodomy as constituting the bodily injury associated with the kidnaping. Nonetheless, despite the fact that the jury had been instructed that the death penalty for murder depended upon a finding that it was committed while petitioner was engaged in “kidnapping with bodily harm, aggravated sodomy” (emphasis added), the Georgia Supreme Court upheld the third death penalty imposed by the jury. It did so on the theory that, despite the lack of a jury finding of forcible rape, evidence in the record supported the conclusion that petitioner was guilty of that offense, which in turn established the element of bodily harm necessary to make the kidnaping a sufficiently aggravating circumstance to justify the death sentence.
In Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948), petitioners were convicted at trial of one offense but their convictions were affirmed by the Supreme Court of Arkansas on the basis of evidence in the record indicating that they had committed another offense on which the jury had not been instructed. In reversing the convictions, Mr. Justice Black wrote for a unanimous Court:
“It is as much a violation of due process to send an accused to prison following conviction of. a charge on which he was never tried as it would be to convict him upon a charge that was never made.... To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court.”
Id., at 201-202, 68 S.Ct. at 517.
These fundamental principles of procedural fairness apply with no less force at the penalty phase of a trial in a capital case than they do in the guilt-determining phase of any criminal trial. Cf. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). In light of these principles, the death sentence for the crime of murder with malice aforethought cannot stand.
Insofar as the petition for certiorari challenges the conviction of kidnaping with bodily injury and the imposition of the death sentence, it is granted along with petitioner’s motion to proceed in forma pauperis. The judgment of the Supreme Court of Georgia affirming the conviction for kidnaping with bodily injury and the death sentence for murder is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Insofar as the petition challenges the convictions for murder, kid-naping, and statutory rape, it is denied.
It is so ordered. Presnell, supra, 439 U.S. at 14-17, 99 S.Ct. at 235-37 (footnotes omitted) (bold emphasis added).
The Cabana majority was well aware of what it had held in Presnell, but denigrated its own holding in two ways: one, by not accepting any responsibility, but instead casting it on to the “Presnell Court,” as though such nomenclature established an identity separate from that of the Supreme Court of the United States, and two, by saying that the “Presnell Court appeared to assume that the jury’s constitutional *409role in determining sentence was equivalent to its role in determining sentence”— which assumption it declared no longer tenable.
Caldwell v. Mississippi, 472 U.S. -, 105 S.Ct. 2633, 86 L.Ed.2d 231 (June, 1985), is even more recent than Presnell —in fact, has not attained its first anniversary. Justice Blackmun, writing in Cabana for himself and two other justices, immediately pointed out the majority’s short memory of it, and lack of respect for case precedent:
Last Term, in Caldwell v. Mississippi, 472 U.S. -, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), (a case not even cited by the Court in its controlling opinion, ante), we recognized institutional limits on an appellate court’s ability to determine whether a defendant should be sentenced to death:
“Whatever intangibles a jury might consider in its sentencing determination, few can be gleaned from an appellate record. This inability to confront and examine the individuality of the defendant would be particularly devastating to any argument for consideration of what this Court has termed ‘[those] compassionate or mitigating factors stemming from the diverse frailties of humankind.’ When we held that a defendant has a constitutional right to the consideration of such factors, we clearly envisioned that the consideration would occur among sentencers who were present to hear the evidence and arguments and see the witnesses.” Id., at -, 105 S.Ct. at 2640 (citations omitted; interpolation in original).
That statement in Caldwell is not an abstract disquisition on appellate courts generally. It concerns, in particular, the institutional limits of the Supreme Court of Mississippi in capital cases. Today, the Court ignores those recently stated limits and holds that the Mississippi Supreme Court may be competent to make, on a paper record, the findings required by Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982)— that Crawford Bullock, Jr., killed, attempted to kill, or intended to kill Mark Dickson, and thus deserves to die. The Court reaches that result by paying lip service to the constitutional significance of Enmund while relegating Enmund findings to a position of judicial afterthought. The nature of the Enmund findings, however, dictates who must make them and at what point in the sentencing process they must be made. The Eighth Amendment requires that Enmund findings be made at the trial court level before the sentence condemns a defendant to death. The Court’s misreading of Enmund threatens a retreat from the constitutional safeguards on the capital sentencing process that the Court has acknowledged in the decade since Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Cabana, supra (Blackmun, J., dissenting) (emphasis added).
That Justice Blackmun was 100 percent correct in his assessment of the Cabana majority’s incomprehensible and inexcusable failure to mention, let alone attempt a distinction of, Caldwell.
Justice Stevens was quick to point out that Enmund1 culpability under Mississippi law has been wisely left to a jury as “the decisionmaker that is best able to ‘express the conscience of the community on the ultimate question of life or death.’ (Citation omitted.).” Cabana, supra (Stevens, J., dissenting). What madness is this, then,2 that the Supreme Court of the United States, while ignoring Caldwell, and misapplying Presnell, not to forget En-mund, has gratuitously taken upon itself to preach to the Mississippi Supreme Court that it may ignore Mississippi statutory law if it wishes, and make the necessary findings from a paper record which are required in balancing the life-or-death equation. What Justice Shepard wrote in *410Creech, as quoted supra, is absolutely applicable. How long Cabana will hold sway on the High Court is anyone’s guess. Caldwell lasted less then one year.
. The author concedes a plagiaristic use of Justice Shepard’s Creech language, supra.