concurring in part and dissenting.
While I am able to agree, and do, with the majority opinion wherein it finds no error in failing to treat Watson as an accomplice on the basis of the duty of a parent to protect its child, and further agree that error cannot be predicated on the failure of the prosecutor to transmit the report of Officer Femling, I am unable to concur in the majority’s disposition of errors assigned in the giving and refusing of instructions.
I. Given Instruction 28 and Defendant’s Requested Instruction Nos. 12 and 13
There is little doubt from a reading of the majority opinion and the State’s brief that the latter is extensively relied upon by the former. There is nothing improper about that. As I suggested in State v. Iwakiri, 106 Idaho 618, 682 P.2d 571 (1984) *370(Bistline, J., concurring and dissenting), an appellate court certainly should be entitled to rely upon the briefs of counsel.
In this case, the State’s brief tells us that if there was any error in the trial court’s giving Instruction No. 28, it is not our legitimate concern because “by requesting identical language in his requested instructions, the appellant cannot now on appeal allege that error was committed by the submission [to the jury] of the trial court’s instructions which differentiated between first and second degree murder. Such conclusion finds its basis in the well-recognized rule of law that a party cannot invite error and then complain of it on appeal.” State’s Brief, p. 10. While the majority opinion correctly states that “given instruction 28 is substantially identical to defendant’s requested instruction 12,” Given No. 12 was not requested in a vacuum, but requested along with defendant’s Requested No. 13. Unlike No. 12, which the trial court endorsed as “covered,” Requested No. 13 was “refused.” That important instruction, and its endorsed “refusal,” and supporting authority, found at p. 247 of the Clerk’s Record, are as follows:
13. If you find beyond a reasonable doubt that the Defendant struck the deceased and intended to kill her, but the intent was formed at the instant of the striking which led to death, he did so without premeditation and deliberation and cannot be convicted of murder of the first degree.
State v. Dong Sing, 35 Idaho 616 [208 P. 860]; State v. Shuff, 9 Idaho 115 [72 P. 664]; State v. Van Vlack, 57 Idaho 316 [65 P.2d 736]; State v. Dillon, 93 Idaho 698 [471 P.2d 553]; Kitchen v. United States [D.C.Cir.,] 205 F.2d 720; People v. Isby [30 Cal.2d 879], 186 P.2d 405; State v. Kelley [Kelly], [131 Kan. 357], 291 P. 94 [945]; State v. Conway [351 Mo. 126], 171 S.W.2d 677; Bass v. State [191 Tenn. 259], 231 S.W.2d 707; Forehand v. State, 126 Fla. 464, 171 So. 241; Barker v. State [238 Ind. 271], 150 N.E.2d 680; Brown v. State [220 Md. 29], 150 A.2d 895; People v. Caruso [246 N.Y. 437], 159 N.E. 390; State v. Brown [218 N.C. 415], 11 S.E.2d 321; State v. Floyd [226 N.C. 571], 39 S.E.2d 598; State v. Nelson [148 Minn. 285], 181 N.W. 850; State v. Bonofiglio, 67 N.J.L. 239, St.R. 432 (N.J.), 52 A. 712, 54 A. 99; State v. Greenleaf, 71 N.H. 606, 54 A. 38; State v. Henson, 221 Kan. 635, 562 P.2d 51; State v. Wilson, 234 Iowa 60, 11 N.W.2d 737; Winton v. State, 151 Tenn. 177, 268 S.W. 633; Lowe v. State, 23 [90] Fla. 255, 105 So. 829; State v. Faust, 254 N.C. 101, 118 S.E.2d 769; C.J.S. Homicide, § 33(a) at 886 and (d) at 889.
The State’s brief candidly opens its discussion of the assigned failure to give defendant’s Requested No. 13 with the concession that it “does not take issue” with the “contention that a killing can be intentional without being first degree murder.” State’s Brief, p. 19. The argument is then made that Given Nos. 28 and 27, made the jury “properly aware that the defendant’s intent to kill was not necessarily indicative of first degree murder.” Given Nos. 28 and 27 are set out in the majority opinion. Obviously, those instructions do not come up to the quality of forthrightness and conciseness of defendant’s Requested No. 13. Given No. 27, as the majority points out, merely defined second degree murder, and stated three necessary elements, one of which is “(c) That the killing was done with malice aforethought.” This is a requirement of any murder, and adds nothing to Given No. 28, simply because it is repeated in the first sentence of Given No. 28. Given No. 28 adds that to amount to first degree murder additionally “there must be willfulness, deliberation and premeditation.” Neither instruction gave the jurors any indication as to how they would apply those legal concepts to the facts before them. And, as defendant’s counsel points out in his brief:
“The result of that refusal was that the jury was not instructed that they could find beyond a reasonable doubt that Mr. -Aragon intended to kill the victim, without that killing being murder of the first degree. In fact, since Jury In*371struction No. 28 told them that the killing was in the first degree if they found a premeditated intent to take life and that that premeditation could take place even if the intention to kill and the killing occurred as successive thoughts of the mind, they may well have concluded they were obligated to find first degree murder if they found an intent to kill. While the instructions may be correct statements of the law, it is important that the jury be properly instructed on intent to kill to avoid the possibility of their being applied incorrectly.” Appellant’s Brief, p. 25.
As an earlier court stated it, “The question is whether, when so read and construed, it can reasonably be held that the jury may have been misled by it.” State v. Dong Sing, 35 Idaho 616, 627, 208 P. 860, 862 (1922). Lawyers, judges, and legal scholars struggle mightily with the terminology attendant to jurisprudence. Jurors can scarce be expected to readily grasp that which legal minds find difficult. There is no reason for not taking the applicable facts and circumstances and giving a requested instruction which molds the law to those facts in a readily understandable fashion. There is every reason for so doing it. Moreover, try as might, I am unable to ascertain where in the majority opinion a disposition, or even mention, is made of the assigned error in refusing defendant’s Requested No. 13 — for which reason it may be that any individual effort in that line is thought unwarranted.
Moreover, a further concern here is that the majority at one point, in defense of Given No. 28, states that “Because these instructions follow the language of the statute, it was not error to give them.” Given No. 23 is in the words of the statute, but I am unable to see where defendant has complained of it. Nor do I see where defendant has complained of Given Nos. 25 or 27. It is Given No. 28 which is under fire, and it is NOT in the words of the statute, but rather an attempt to explain statutory language to laymen, and supply those laymen with statutory interpretations by earlier supreme courts years ago. It is thus seen that the majority errs in misclassifying Given No. 28 with those instructions which are based on statutory language, and of which no complaint is made.
What it comes down to, then, is that the majority, in upholding Given No. 28 necessarily is restricted to doing so on the basis of invited error. But, even prior to present statutes mandating our review of death penalty sentences, which requires such plenary review irrespective of whether the defendant appeals or even wants to appeal, this Court has on many other occasions considered fundamental error which had not been properly preserved in the trial court.
Four years ago, in State v. Owens, 101 Idaho 632, 619 P.2d 787 (1980), I pointed out that it was before my time with the Court that it had declared the doctrine of fundamental fairness:
“In State v. Cariaga, 95 Idaho 900, 523 P.2d 32 (1974), the opinion notes that ‘During oral argument before this Court the question was raised as to whether or not appellant was convicted of the crime with which she was charged.’ 95 Idaho at 902, 523 P.2d at 34. To a contention that the defendant had waived his right to that challenge by failing to object, this Court said:
“ ‘Rather, we feel the issue of whether or not appellant has waived any objections she might have is controlled by our decision in State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971), where we held that where a fundamental error has been committed in a criminal trial, this Court may consider it even though no objection was made in the trial court.
“ ‘ “The appellant contends that he was denied due process and deprived of a fair trial because the prosecuting attorney elicited at trial that Haggard did not tell the judge of his alibi at the preliminary hearing. Appellant maintains that this information should not have been made available for the jury’s consideration and by so doing the low*372er court deprived him of a fair trial. Counsel for defendant failed to raise an objection to the cross-examination at the time of trial and ordinarily this Court would not consider this assignment of error. However the obligation of the state to see that defendant receive a fair trial is primary and fundamental. [Citing cases.] In the case of fundamental error in a criminal case the Supreme Court may consider the same even though no objection had been made at the time of trial.” 94 Idaho at 251, 486 P.2d at 262.
Because the variance between the complaint and conviction denies the appellant due process of law, she has not waived her right to object even though no objection has been previously made. Neither can this Court ignore the issue because it has not been assigned as error in the original briefs.’ 95 Idaho at 903-04, 523 P.2d at 35-36 (emphasis added).” 101 Idaho at 643, 619 P.2d at 798 (emphasis original).
In Owens, the majority of the Court refused to apply its own doctrine. Having a few years earlier in State v. Haggard, supra, in the above quotation, proclaimed that the obligation of providing a fair trial is primary and fundamental, and that this Court may consider error which technically has not been properly preserved, the majority in Owens nevertheless elected to say in that case:
“Owens, however, did not object to the instruction at trial and, pursuant to Idaho law, must be deemed to have waived any objection to the instruction. I.C.R. 30; State v. Collinsworth, 96 Idaho 910, 539 P.2d 263 (1975). ‘The States, if they wish, may be able to insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error. See, e.g., Fed.Rule Crim.Proc. 30.’ Hankerson v. North Carolina, 432 U.S. 233, 244, n. 8, 97 S.Ct. 2339, 2345, n. 8, 53 L.Ed.2d 306 (1977).” 101 Idaho at 640, 619. P.2d at 795.
In doing so, the majority completely refused to comment on my suggestion that the prior decisions of the Court had considered fundamental error. It becomes evident that the Court will consider fundamental error only when it chooses to do so — much as in sentence review it may conduct a meaningful review, or it may simply recite that a sentence is within statutory limits period. State v. Nield, 106 Idaho 665, 682 P.2d 618 (1984) (Bistline, J., dissenting). Ordinarily such inconsistent approaches would be viewed as unfortunate, but here it is an intolerable state of affairs. My recollection is that in Owens the defendant’s appeal was for the purpose of clearing the record of a felony conviction, and that the defendant was not sentenced to any confinement. In the case before us today the defendant’s appeal is for the purpose of obtaining a fair trial before he is executed for the crime of first degree murder, a somewhat different proposition than that before the Court in Owens. There is no justification for the majority’s choice to not apply the Court’s fundamental error doctrine in this case. I point to language in the State’s brief which demonstrates the State’s view that the Court would likely apply the doctrine in a criminal case of which there can be none more serious and more final:
“If there was error, appellant invited it, and as a result thereof he cannot now challenge the trial court’s action on appeal.
“Should the court find, however, that the issue of the propriety of the trial court’s definition of deliberation and premeditation is appropriate for appellate review, the State submits that such a definition represented a correct and sufficient statement of the law and did not constitute reversible error.” Respondent’s Brief, p. 17.
Although the State’s anticipation as to the Court’s review has turned out to be unfounded, it is also to be noted that the State has engaged in arguing that, although deliberation and premeditation in Given No. 28 lumped together in the conjunction and then defined as meaning done with reflection and conceived beforehand, *373“ ‘[a] careful analysis of such language reveals that the trial court was not indicating that such terms are synonymous ... ’ ” (Respondent’s Brief, p. 17). There should be little doubt that the court was not indicating, and did not so intend, that the words “deliberation” and‘“premeditation” are synonymous. The question, however, is otherwise: What was the understanding of the jurors? If any one of them misunderstood, then the system has failed, especially where the balance of the instruction told the jury that a sudden heat of passion would preclude the idea of “deliberation,” but made no mention of “premeditation.” The State says of the problem that “Thus appellant’s contention is one of form rather than substance, and simply does not affect the propriety of the instruction.” Respondent’s Brief, p. 18. Presently, I am not so persuaded. As I have said earlier, the finest of legal minds in wrestling with considerations of deliberation and premeditation do not find it easy to explain to each other the conceptual relationship. For certain, juries should be given the best of explanations, and in understandable language. Here, defendant’s Requested No. 13, had it been given to the jury with Given No. 28, would have adequately explained to them how the element of premeditation applied to the facts and circumstances of this case in determining whether the defendant was guilty of first degree murder or guilty of murder in the second degree, assuming that it was first found that he was guilty of murder.
The State has urged upon us that an instruction given in State v. Van Vlack, 57 Idaho 316, 348, 65 P.2d 736, 750 (1937), defines the “deliberation” and “premeditation” in language similar to Given No. 28, and that it is “in substance the same as.” Respondent’s Brief, p. 18. The instruction, Given No. 12, which the Van Vlack Court said “sufficiently covered the question of premeditation,” reads as follows:
A killing is willful when it is intentional and not accidental; it is deliberate whenever the intent or purpose to take life is formed upon deliberation or consideration; it is premeditated whenever deliberation or consideration, however short, precedes the execution of the purpose formed; it is felonious when it is unlawful.’ ” 57 Idaho at 348, 65 P.2d at 750.
I am unable to agree that the two instructions are substantially the same, and see little similarity.
II. Defendant’s Requested No. 26
The majority opinion says that such instruction (which is set forth therein and for ready reference is footnoted below),1 if requested, according to State v. Hunter, 55 Idaho 161, 39 P.2d 301 (1934), “should be given to inform the jury of the defendant’s right to be convicted only of the offense where all of the elements have been proven beyond a reasonable doubt.” Frankly, I do not comprehend what the author of the majority opinion had in mind in making that statement. Given no. 25, set out in the majority opinion, sets out the elements which must be proved beyond a reasonable doubt in order to prove murder in the first degree. Given no. 27, also set out in the majority opinion, lays out the elements which must be proved beyond a reasonable doubt in order to prove murder in the second degree.
The trial court also provided the jury with both the placing of the burden of proof and the definition of reasonable doubt:
“Jury Instruction No. 7. A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the State *374the burden of proving him guilty beyond a reasonable doubt.
“Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.” Tr., Vol. I, p. 81.
It is readily seen that the jury was fully and correctly instructed as to the law of reasonable doubt. There is no contention otherwise. With that well in mind, one then reads from the majority opinion “that the instructions given in Hunter did not sufficiently instruct the jury on this point.” By “on this point” can only be meant on proving all of the elements beyond a reasonable doubt. Now, this is indeed startling, and defense counsel may well wonder if the majority has overlooked reading pages 27 and 28 of his brief. What the Hunter opinion actually did say is there set forth, verbatim, and is as follows:
“We have very carefully examined the instructions of the trial court and find that while the court fully and correctly instructed the jury generally as to the law of reasonable doubt, it did not instruct the jury that if they found it established by the evidence, beyond a reasonable doubt that the defendant had committed a public offense, but were in doubt as to which of two or more degrees he was guilty, he could be convicted only of the lowest degree included in the charge stated in the information. The appellant was clearly and unquestionably entitled to have the requested instruction given to the jury.” 55 Idaho at 166, 39 P.2d at 303.
The Hunter Court not only held that the defendant “was clearly and unquestionably entitled to have the requested instruction given to the jury,” but clearly and unmistakeably observed that the requested instruction was “stated in the exact language of the statute, Sec. 19-2005, I.C.A. (now I.C. § 19-2105).” 55 Idaho at 165, 39 P.2d at 303.
The same instruction was given in nearly identical language three years later in State v. Van Vlack, supra:
‘“You are instructed that the law provides that in the event an accused shall be deemed proven beyond a reasonable doubt to be guilty of some degree of a crime, but a reasonable doubt shall exist as to what degree of crime such one is guilty of, that there shall be a conviction only of the lesser degree of crime.
“ ‘In determining what your verdict shall be you will, if you find the defendant guilty and shall have such reasonable doubt as to what degree of crime he is guilty of, give him the benefit of this doubt.’ ” 57 Idaho at 353-54, 65 P.2d at 753.
In a fairly recent opinion relied on extensively by both the defendant and the State, State v. Koho, 91 Idaho 450, 423 P.2d 1004 (1967), this Court first noting that “The jury was required to find the degree of the murder from the evidence, not on the basis of a presumption,” and observing also that the instruction did follow the language of I.C. § 19-2105, approved this instruction:
“ ‘You are instructed that by the averments of this information the defendant is charged with the crime of murder, which includes not only murder of the first degree but also murder of the second degree and manslaughter, both voluntary and involuntary.
“ ‘When a crime is by statute differentiated into degree, it is the duty of the jury to determine by their verdict what degree thereof, if any, has been committed.
“ ‘Should the jury find from the evidence that the defendant has committed a public offense charged in the information but entertain a reasonable doubt as to which of the several degrees he is guilty, then he can be convicted only of the highest degree as to his guilt of which you have, from the evidence, no *375reasonable doubt/ ” 91 Idaho at 454-55, 423 P.2d at 1008-09.
The Court said of the instruction:
“It was a correct statement of the intent of the statute as applied to a case involving more than two degrees of crime, such as this where murder of the first and second degrees and voluntary manslaughter were involved. However, even in such a case the language of the statute would have been sufficient.” 91 Idaho at 455, 423 P.2d at 1009.
A year later the Court cited Koho and again approved an instruction which was more in the language of I.C. § 19-2105:
“Should the jury find from the evidence that a defendant has committed a public offense charged in the Information, but entertain a reasonable doubt as to which of the two degrees he is guilty, then he can be convicted only of the highest degree of which you have, from the evidence, no reasonable doubt as to his guilt.” State v. Darrah, 92 Idaho 25, 28, n. 4, 435 P.2d 914, 917 n. 4 (1968).
The Court stated additionally: “However, in a case such as this, where only two degrees of the crime charged are involved, giving this instruction in the language of the statute would be preferable.” 92 Idaho at 28, 435 P.2d at 917. Citing Hunter, the Court in Carey v. State, 91 Idaho 706, 429 P.2d 836 (1967), again noted that “If the jury ‘has reasonable ground of doubt in which of two or more degrees he [the defendant] is guilty, he can be convicted of the lowest of such degrees only,’ I.C. § 19-2105, and the judge upon request must so instruct the jury.”
As an earlier Supreme Court noted in Hunter, so today the Court is obliged to say that “The appellant was clearly and unquestionably entitled to have the requested instruction given to the jury.” It takes very little reading of the Idaho cases, and the one statute, to comprehend that the Court in the past has clearly seen the distinction between a trial court’s general instructions defining reasonable doubt and its applicability to the burden of proof — on the one hand — and on the other hand an instruction following I.C. § 19-2105 which tells the jury that where there is any reasonable doubt as to which degree of murder was committed, the accused is to receive the benefit of that doubt.
In this particular case, there was no eyewitness to the crime. As evidence of premeditation the prosecution had to rely upon those circumstances which are laid out in the majority opinion. Based on the record before us, it is clear that the jury could have found defendant guilty of murder. It is difficult, however, to readily see how the jury could have found the element of premeditation. Language of an earlier Court is appropriate:
“If nothing more appeared than that at the instant the blow was struck or the killing took place there was an intention to kill, there being no time for deliberation or premeditation, the killing would not be murder of the first degree,____” State v. Dong Sing, 35 Idaho at 626, 208 P. at 862.
Under the circumstances here presented, it was extremely important that the jury would be fully and correctly instructed— which certainly encompasses the notion that the instructions comport with statutory law and prior decisions. The majority not only is unfair to the defendant in attempting to equate general instructions on burden of proof and reasonable doubt with the reasonable doubt instruction specifically required by the statute, but does a disservice to the Idaho system of criminal jurisprudence.
Finally, on this point, I must treat also with the majority’s remarkable statement that the Hunter instruction need not be given if its subject matter is covered in other instructions. This is said to be based on Van Vlack, which followed Hunter by three years, but strangely, no specific Van Vlack language is set forth or even paraphrased in the majority opinion. Accordingly, perhaps the opinion is again following the State’s brief, and to that source resort must be had.
The State’s brief, as one might suspect, does address the defendant’s Requested *376No. 26 issue by opening with the suggestion that “refusal to give a requested instruction, even though a correct statement of the law, does not constitute error where the subject matter of the instruction has been adequately covered by other instructions ----” Respondent’s Brief, p. 26 (emphasis added).
The State nonetheless, in obvious recognition that defendant’s Requested No. 26 is an instruction relating to a specific statute, then declares that:
“The State recognizes that Idaho case law appears to support the conclusion that a defendant is entitled to an instruction to the effect that if the jury is convinced beyond a reasonable doubt that the defendant has committed a public offense but there is reasonable doubt as to which of two or more degrees he [the defendant] is guilty he can be convicted of the lowest of such degrees only. See, Idaho Code § 19-2105; State v. Hunter, 55 Idaho 161 39 P.2d 301 (1934). In the case at bar, the appellant did request such an instruction, which the trial court refused on the ground that the subject matter thereof was covered by other instructions to be submitted to the jury.” Respondent’s Brief, p. 26.
Nevertheless, having so conceded, and having specifically mentioned the statute I.C. § 19-2105 — which the majority avoids doing — the State insists “that upon consideration of the instructions as a whole,” the refusal of the instruction was not error. Respondent’s Brief, p. 26. The majority, of course, as I have pointed out, repeated that thought — but it is not so for reasons pointed out.
The State’s brief does .cite Van Vlack, saying of it that this Court there “construed almost identical instructions to cover the very same instruction as requested by the appellant in the case at bar. 57 Idaho at 354 [65 P.2d at 753].” Respondent’s Brief, p. 27. Naturally, one turns to Van Vlack at p. 354, 65 P.2d at 753, and this is what one finds only:
doubt shall exist as to what degree of crime such one is guilty of, that there shall be a conviction only of the lesser degree of crime.
“In determining what your verdict shall be you will, if you find the defendant guilty and shall have such reasonable doubt as to what degree of crime he is guilty of, give him the benefit of this doubt.”
Assignment of error No. 19, urges that requested instruction No. 11, as follows: should have been given:
“The jury are instructed that they cannot convict defendant alone upon his own confession, unless the same is corroborated by other evidence tending to connect defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of an offense.” citing Brickwood-Sackett Instructions, vol. 2, sec. 2523, which in turn relies upon Cox v. State, (Tex.Cr. App.) 69 S.W. 145, a Texas case, which upon a careful analysis, while it approved the instruction requested, that is, held it was sufficient, not that it would have been error to refuse to give it because the court there said: “Appellant’s identity as the criminal may rest alone upon his uncorroborated confession” (italics ours), and herein the proof of the fact that the deceased was dead and had been killed was proved absolutely and beyond peradventure of a doubt, aliunde the confessions or admissions or statements of the defendant, and this court as early as Fifth Idaho considering the sufficiency of confessions in a first degree murder case stated:
“____ Then there is other evidence than his confession which in our opinion, would justify the verdict of the jury, and which points with certainty to the guilt of the defendant.” {State v. Smith, 5 Ida. 291, 48 Pac. 1060.)
Furthermore, Cox v. State, supra, has been somewhat modified in a later decision of the same court, Ingram v. State, 78 Tex.Cr.Rep. 559, 182 S.W. 290 at 303, holding that confessions may be used to aid even the proof of the corpus delicti not alone the connection of the defendant *377with the crime. The requested instruction was furthermore clearly erroneous in this: that it went beyond the law as heretofore laid down by this court as to what evidence, in addition to the confessions of the defendant, is necessary to sustain a conviction and did not state that slight corroborating facts are sufficient, which has clearly been the rule in this State since 1902 as appears from the following quotation, cited with approval on this same proposition in State v. Wilson, 51 Ida. 659, at 669, 9 Pac. (2d) 497.
“____ It is also a well-recognized rule that the fact that a crime has been committed cannot be proved by the extrajudicial confessions or statements of the prisoner, and that there must be some evidence or corroborating circumstances tending to show that a crime has been committed, aside from such confessions or statements. (People v. Jones, 31 Cal. 565, 566; Wharton’s Criminal Evidence, 9th ed., secs. 632, 633.) In People v. Badgley, 16 Wend. (N.Y.) 53, it is said: ‘Full proof of the body of the crime — the corpus delicti — independently of the confessions, is not required by any of the cases; and in many of them slight corroborating facts were held sufficient.' ” (Italics ours.) (State v. Keller, 8 Ida. 699, 70 Pac. 1051. And see State v. Downing, 23 Ida. 540 at 544, 130 Pac. 461.)
This distinction is pointed out in Sullivan v. State, 40 Tex.Cr.Rep. 633, 639, 51 S.W. 375, as follows:
“It is well settled that the confession of the accused alone will not justify a conviction. This question has been frequently decided by various decisions of this state; but, so far as we are aware, it is settled that the death of the deceased being shown to have been brought about by the criminal agency or procurement of some one, the confession is sufficient to connect the party making the confession with the crime.”
Appellant has cited no authorities that have held it prejudicial error to refuse an instruction such as was requested, under evidence such as appears in this case. The authorities relied upon by defendant state that confessions of the defendant are sufficient to connect him with the crime, which point the requested instruction did not cover, and this court has held that it is not error to refuse a requested instruction which though partly right is likewise partly erroneous. (State v. Boykin, 40 Ida. 536, 234 Pac. 157; State v. Farnsworth, 51 Ida. 768, 10 Pac. (2d) 295.)
The foregoing, of course, is a discussion of the refusal to give a defendant’s requested instruction which told the jury that the defendant in that case could not be convicted upon his own confession alone. That passage from Van Vlack had nothing to do with the refusal of a trial court to give the Hunter instruction.1
Regrettably the State’s brief has led the majority into grievous error which plays a large part in promoting the miscarriage of justice which occurs here where the Court endorses the defendant’s denial of a fair trial.
III. The Sentence
Little need be said in this regard, because there should be a second trial free of error. I continue to be of the firm belief, well-documented in prior death penalty cases, that jury sentencing is mandated by the Idaho Constitution I add only that the court sentencing procedures in this case show far, far less of extraneous hearsay— not subject to the right of confrontation— than we have seen in the death penalty cases which have gone before, and add that the district court’s sentencing decision is a model of clarity which should be made available to other district judges, so long as one more vote cannot be gained to return to constitutional jury sentencing.
Were there no trial error, I would nevertheless find lacking here a requisite propor*378tionality which the Idaho legislature has demanded, having done so in reliance on the death penalty decisions of the Supreme Court of the United States.
In State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983), I accurately predicted that proportionality would go by the boards in the High Court — which prognostication was 100 percent correct, and suggested that it might as well be discarded by the Idaho legislature. It is not readily attainable, and review as to proportionality by this Court cannot be and has not been meaningful. The legislature, should it address that issue, at the same time might, in a statesmanlike manner, actually examine the desirability of returning death penalty sentencing to the Idaho juries. It would be interesting to know the names of any legislators who on that issue have read and studied the opinions of Justice Huntley and myself.
I do submit that if any semblance of proportionality is to be achieved, that it will be a natural by-product of returning that function to the juries.
ON DENIAL OF PETITION FOR REHEARING
. Defendant's Requested Instruction No. 26: "When you are convinced beyond a reasonable doubt that the crime of murder has been committed by the Defendant, but have a reasonable doubt whether such murder was of the first or of the second degree, you must give to such Defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.” R., p. 252.
. As I have pointed out earlier, Van Vlack followed Hunter by a scant year, and the very same Court in both cases approved the instruction. Hunter, 55 Idaho at p. 166, 39 P.2d at 303; Van Vlack, 57 Idaho at p. 353, 65 P.2d at 753.