dissenting.
I am unable to join in the disposition made by my brethren in this case. The striking of the provisions of § 7-242.5(a), W.S. as unconstitutional is not required.
We have heretofore recognized that “ * * * There is a strong presumption of constitutionality. * * * ” Budd v. Bish*281op, Wyo., 543 P.2d 368, 371 (1975). In State v. Stern, Wyo., 526 P.2d 344 (1974) this Court said, at 526 P.2d 347, “* * * [EJvery law must be presumed to be constitutional, with all reasonable doubt resolved in its favor * * and at 526 P.2d 348, “ * * * [I]t is important to sustain the constitutionality of statutes wherever it is possible. * * * ” In Weiss v. State ex. rel. Cardine, Wyo., 455 P.2d 904 (1969), cert. den. 398 U.S. 927, 90 S.Ct. 1815, 26 L.Ed.2d 89 (1970), the principle was expressed as follows, at p. 907:
“We have held over and over again that a law will not be construed to be unconstitutional unless its unconstitutionality is clear and beyond a reasonable doubt; and the party who assails the validity of such law has the burden of proving his contention. * * *”
As opposed to the strong presumption of constitutionality, which I submit does not disappear simply because Sanchez claims unconstitutionality, the reasoning of the majority opinion rests upon three assumptions which are not valid. The first of these is that the procedure provided in § 7-242.5(a), W.S., is substantially the same as the Arizona procedure discussed in State v. Shaw, 106 Ariz. 103, 471 P.2d 715 (1970). These procedures are not the same. The second and third assumptions are found in the language of the majority opinion that
“ * * * [H]ere there arose a presumption of intent to commit both crimes * * * it
and
“ * * * [W]e find it impossible to believe that if a jury is presented with all of the evidence going to a defendant’s guilt or innocence and is, at the same time denied access to the evidence pertaining to any defense the defendant might have, it will not form a belief as to the guilt of the defendant. Merely because a jury is asked not to reveal that conclusion ‘just yet,’ does not mean that it has not come to the poisonous decision.”
It is impossible for me to accept the assumption that juries in the courts of the State of Wyoming will not follow the instructions given them by the trial court. Neither does any language in the statute inhibit evidence favorable to the defendant at the initial trial stage. Alibi, for example, obviously would be tried in the first stage.
It may be that the words “bifurcated trial” accurately describe the procedure provided in § 7-242.5(a), W.S. It appears that the words were adopted from the opinion in State v. Shaw, supra. “Bifurcated trial” cannot describe both the Arizona procedure discussed in State v. Shaw and the procedure provided in § 7-242.5(a), however, because these procedures are different.
Under the Arizona statute [A.R.S. § 13-1621.01], which was declared unconstitutional in State v. Shaw, supra, the statute provided:
“A. In any case where the defense of not guilty by reason of insanity is asserted, two trials shall be set unless good cause for a single trial is shown.
“B. The first trial shall determine the issue of guilt or innocence and, if appropriate, the degree of the crime. The multiple trial concept shall not affect the judicial burden of proof or the applicability of § 13-131. At the discretion of the court, the jury may be informed that there may be two trials and what issues will be decided at each.
“C. If the defendant is found guilty at the first trial, there shall be a second trial following promptly after the first trial. At the second trial, the jury shall consider the defense of insanity and, if appropriate, the defendant’s present mental condition with regard to commitment to a mental institution. * * * ” [Emphasis added]
With respect to § 13-131 which is referred to in the foregoing statute, it appears that in the first trial the practice would be to instruct in the language of § 13-131:
“ * * * The intent or intention is manifested by the circumstances connected with the offense, and the sound mind *282and discretion of the accused. All persons are of sound mind who are neither idiots nor lunatics nor affected with insanity.”
This Arizona procedure might aptly be described as saying to the jury in effect, “Now that you have found this defendant guilty and sane, here is your chance to find him insane and therefore not guilty.” Given the procedure spelled out, I would not protest the correctness of the decision in State v. Shaw, supra.
In Wyoming, however, the legislature simply has said:
“When a defendant couples a plea of not guilty with a plea of not guilty by reason of mental illness or deficiency, there shall be a sequential order of proof before the same jury in a continuous trial. First, evidence shall be heard and a special verdict taken on whether the defendant in fact committed the acts charged in the alleged criminal offense. If by special verdict the jury finds that the defendant did in fact commit such acts, then evidence shall be heard on the remaining elements of the alleged criminal offense and on the issue of mental responsibility of the defendant.” § 7-242.5(a), W.S.
Under this procedure the determination of guilt or innocence does not occur until after the evidence on the remaining elements of the alleged criminal offense and on the issue of mental responsibility of the defendant has been heard.
These procedures obviously are not the same nor are they substantially the same as the majority opinion assumes.
In submitting this case to the jury, according to the provisions of § 7-242.5(a), W.S., at the first stage of the trial the district court instructed the jury:
“We are now at that stage in this trial where you must determine, by a special verdict, whether the defendant in fact committed the acts charged in the criminal offenses. In your consideration of this special verdict being submitted to you, you do not make any finding of guilt or innocence as to the criminal offenses charged nor do you make any finding as to the issue of the mental responsibility of the defendant.” [Emphasis added]
The jury is presumed to have followed this instruction by the court. Lonquest v. State, Wyo., 495 P.2d 575 (1972), cert. den. 409 U.S. 1006, 93 S.Ct. 432, 34 L.Ed.2d 299 (1972); and Dobbins v. State, Wyo., 483 P.2d 255 (1971). In Dobbins v. State, supra, this Court said, at 483 P.2d 259:
“ * * * [T]he trial court very carefully instructed the jury that it should deliberate upon and decide each of the State’s charges separately and independently from the other and under no circumstances was it to consider the facts and evidence relating.to one of the charges in determining the guilt or innocence of the defendant on the other. It is presumed, of course, that the jury followed these instructions * * *.”
The assumption in the majority opinion that the jury could not refrain from reaching a conclusion with respect to guilt or innocence or mental responsibility is irreconcilable with the presumption attaching to the instruction given by the district court.
Turning to the included assumption that in the initial stage of trial the “ * * * jury is presented with all of the evidence going to a defendant’s guilt or innocence and is, at the same time denied access to the evidence pertaining to any defense the defendant might have * * there is nothing contained in § 7-242.5(a) which supports any such conclusion. No reason at all appears why all of the evidence, both that of the state and that of the defendant, pertaining to the issue of “ * * * whether the defendant in fact committed the acts charged in the alleged criminal offense * * * ” should not be presented at the initial stage of the trial. Indeed the hearing of evidence would assume all of the evidence on that issue. The defendant could put in whatever evidence he might choose pertaining to any theory of defense except insanity, and the district court, in its discretion certainly could permit arguments by counsel prior to submitting that issue to the jury for a special verdict.
*283With all due respect to the majority of this Court, the combination of these three assumptions is not an adequate premise to declare the statute unconstitutional in light of the strong presumption as to its constitutionality.
It remains to be considered whether in any event the statute is so vague that it cannot be applied. My opinion is that it is not vague. In every criminal trial, at some point, the trial court must form a conclusion as to the essential elements of the offense or offenses charged, and instruct the jury with respect to those elements. In pursuing the procedure suggested by this statute the trial court can compare those elements with “the acts charged in the alleged criminal offense” and determine which elements should be submitted to the jury in the initial stage of trial. Any other elements which always would include the matter of general intent and the matter of specific intent, if any, and in some instances, such as under our homicide statute, the matter of the defendant’s state of mind, would be reserved together with the issue of mental responsibility for the second stage of the proceeding.
Turning to this case, for example, the district court instructed the jury as follows with respect to the offense of rape:
“The material facts [elements] upon the charge of rape are:
“1. That the defendant had carnal knowledge of Donna Burt, a woman;
“2. That the defendant had carnal knowledge of the said Donna Burt forcibly and against her will; and
“3. That the crime was committed in the County of Laramie and State of Wyoming.”
In pertinent part the information which was filed charged that the defendant:
“[0]n or about the 14th day of February A.D. 1975, at the County of Laramie, in the State of Wyoming, did unlawfully and feloniously have carnal knowledge of a woman forcibly and against her will, to wit; did unlawfully and feloniously have carnal knowledge of Donna Burt, a woman, forcibly and against her will, contrary to § 6-63A W.S.1957 as amended. # * * t)
As I would construe the statute in connection with this offense the only remaining element, which would be true in every instance would be the general intent of the defendant. That, being substantially the other side of the coin of mental responsibility, is the only element that appropriately would have been tried with respect to the rape charge in the second stage of the trial. All other acts charged in this alleged offense would be tried in the initial stage.
I note, almost parenthetically, that the majority opinion would exclude from the first stage of this trial everything except the carnal knowledge or sexual intercourse. A part of the reasoning justifying that treatment is that any other attendant circumstances which might in any way, expressly or implicitly, go to the defendant’s general intent or to the prosecutrix’s consent or lack thereof, would be foreclosed. I would hold that the statute deals only with the intent, state of mind, or mental responsibility of the defendant, and that all the attendant circumstances would appropriately be part of the proof in the first stage of the proceeding. I would construe the statute as focusing on issues, not evidence. The fact that some of the evidence at the initial stage might be relevant with respect to the issues reserved for the second stage should not prevent its admission. Its effect at the initial stage of the trial would be controlled by the instructions to the jury.
Turning to the offense of assault and battery with intent to commit rape, the district court instructed the jury as follows:
“The material facts [elements] upon the charge of assault and battery with intent to commit rape are:
“1. That the defendant committed an assault and battery upon one Jill Heath, as assault and battery was previously defined in a prior instruction;
“2. That such assault and battery was committed by the defendant upon the said Jill Heath with the intent to commit the offense of rape upon the said Jill Heath;
*284“3. That the crime was committed in the County of Laramie and State of Wyoming.”
In material part in this instance, the information alleges that the defendant:
“ * * * [0]n or about the 14th day of February A.D. 1975, at the County of Laramie, in the State of Wyoming, did unlawfully and feloniously perpetrate an assault or an assault and battery upon a female with intent to commit the crime of rape, to wit; did unlawfully and felo-niously perpetrate an assault and battery upon Jill Heath, a female, with intent to commit the crime of rape, contrary to § 6-64 W.S.1957 as amended * *
In this instance the submission to the jury at the first stage would include the material elements of an unlawful touching in a rude, insolent or angry manner and venue, and there would be reserved for the second stage, the general intent of the defendant; the specific intent to commit the offense of rape; and his mental responsibility.
Another way of separating those issues to be tried at the initial stage of the trial from those to be tried at the subsequent stage is to draw a distinction between objective and subjective facts. The former, which would include those facts demonstrable by either direct observation or circumstantial evidence of the actual events would be tried in the initial stage. These relate to what happened as distinguished from why it happened. The latter which would include those issues relating to the defendant’s state of mind would be tried in the subsequent stage.
I am satisfied that the trial judges in the State of Wyoming are completely capable of applying the statute in the manner which I have suggested. Our district judges deal with many matters which are far more complex and sophisticated than this matter, and which they successfully communicate to jurors in the form of instructions continually. I am content to trust them with this proceeding also.
This construction of the statute is reasonable, and does provide a benefit for the defendant. I would not attempt to sustain this statute if I felt that were a meaningless exercise. I must point out, however, that there appears in § 7-242.3(h), W.S. the following language:
“ * * * No statement made by the accused in the course of any examination or treatment pursuant to this section and no information received by any person in the course of the examination or treatment shall be admitted in evidence in any criminal proceeding then or thereafter pending on any issue other than that of the mental condition of the accused.”
This means to me that an admission of the accused to an examiner that he had committed the violation can be received in evidence during the stage of the proceeding in which his mental condition is in issue. If that issue is to be tried along with the other elements of the crime, then the accused must try his defense of not guilty in the face of evidence in the form of an admission that he did commit the acts charged. I do not see how he possibly could achieve a desirable result, and the intent of this statute is to relieve him from that burden. This justification is set forth in the note appearing in 10 Land and Water Law Review, p. 252 (1975).
I would sustain this statute as being constitutional and would endeavor to uphold it in accordance with the presumption of constitutionality and our responsibility to hon- or that presumption. I particularly am interested in sustaining this procedure because under this approach a defendant is not required to confront the issue of whether he did or did not commit the criminal acts charged at the same time he is trying to present his defense of not guilty by reason of insanity. Thus the problem arising out of admissions made in the course of the examination is avoided.
In this instance, however, I would have to agree that the cases must be reversed for a new trial. With respect to the crime of rape the district court in the initial stage of the proceeding submitted to the jury only the sexual intercourse. According to my application of the statute whether the carnal knowledge was accomplished forcibly *285and against the will of the victim also appropriately should have been submitted at that stage of the trial. Therefore, with respect to the crime of rape, not enough was submitted. On the other hand, with respect to the crime of assault and battery with intent to commit rape, substantially the special intent of the defendant was submitted in the initial stage of the proceedings, and according to my application of the statute that' element should have been reserved for the later stage of the proceeding. In these respects I would hold that the district court erred, and that Sanchez should be retried on both Informations.