(dissenting).
I must respectfully dissent.
It would appear that the majority opinion reaches an unwarranted conclusion as the jeopardy issue is precluded by the defendant’s failure to make a timely assertion of this claim. Defendant entered a plea of *157guilty to the charge of kidnapping on February 25, 1964. Subsequently, he was tried on the charge of rape and convicted of such on April 3, 1964. Since the defendant did not raise a jeopardy plea at the subsequent trial on the rape charge, claiming the kidnapping conviction was a jeopardy bar, he waived that defense and cannot complain at this late date. Ex parte Zeligson, 47 Okl.Cr. 45, 287 P. 731 (1930). Jeter v. District Court, 87 Okl. 3, 206 P. 831 (1922). 22 O.S.1971, § 515 and § 522. Thus, the majority opinion’s conclusion on the merits of the jeopardy question is inappropriate.
Furthermore, the majority in a discussion of double jeopardy, concludes that Householder v. Ramey, supra, must be overruled. However, Householder was not decided on the basis of double jeopardy, but was based on the statutory prohibition contained in 21 O.S.1971, § 11. That statute, Section 11, provides in relevant part that “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 he be punished under more than one
In view of this statutory provision, Householder v. Ramey, supra, held that “where defendant is convicted of kidnapping for purpose of extorting thing of value, being rape of the victim, he cannot be tried separately for the rape which is an incident included within the crime for which he was convicted.” 485 P.2d at 247. Since Householder had been convicted for kidnapping for the purpose of rape under 21 O.S.1971, § 745, it was concluded that he could not subsequently be tried again for the same rape, which was an essential incident in his conviction for kidnapping for the purpose of rape.
The simplistic analysis that rape and kidnapping are different offenses is deceiving. Of course they are different offenses designed to meet different criminal acts. But if there is but one essential criminal transaction, which incidentally violates more than one statutory prohibition, that criminal action can be punished only once under the statutory requirements of Section 11. If a man kidnaps his victim for the purpose of rape, and is convicted of such, it cannot reasonably be said that the rape and kidnapping are separate offenses.
It is not apparent from the scanty facts presented in this case if the rape was an included incident in the kidnapping. If so, Section 11 would have been a proper defense if timely raised. On the other hand, if the rape was sufficiently separated from the kidnapping so that it was not an included element, Section 11 would be inappropriate. See: People v. Failla, 64 Cal.2d 560, 414 P.2d 39 (1966 Cal.) and In re Malloy, 66 Cal.2d 252, 424 P.2d 929 (1967 Cal.). Such a determination would depend on a close review of the facts, which was not done in the majority opinion. Such a determination is not always easy, but we should not shrink from our judicial duty.
The apparent result of the majority opinion in overruling Householder v. Ra-mey, supra, is to judicially repeal 21 O.S. 1971, § 11, without constitutional basis to do so. In the face of the majority opinion, Section 11 has become a dead letter. I do not think legislative enactments should be disregarded so casually.