concurring and dissenting.
I agree with all portions of the Court’s opinion other than its disposition of Horn’s contention that I.C. § 18-301 precludes his being punished for both kidnapping and robbery. In particular, I am troubled with *198the sentence in the opinion which states that under that statute “a defendant cannot be punished twice for the same act, rather than the same crime.” My understanding of the law is that a person cannot be punished for any act (or omission) unless it has been made a crime — so made, in the language of the statute, and, as all know, by a provision of this code.
I.C. § 18-301 has been a problem to the Court, as evidenced by the three separate opinions in State v. Brusseau, 96 Idaho 558, 532 P.2d 563 (1975). Although the opinion of the Court in that case, a majority of three members agreeing, relied extensively on State v. Randolph, 61 Idaho 456, 102 P.2d 913 (1940), and its statement that “[t]he courts under [similar statutes] have held that ensuing death is a sufficient additional act ... to prevent a plea of previous jeopardy on a prosecution of a lesser offense prior to death, from barring a subsequent prosecution for a homicide charge,” id. at 461, 102 P.2d at 915, it does not seem to me that “mere similarity” of statutes, undiscussed and uncompared, is sufficient. The question before the Court in Randolph and 25 years later in Brusseau was the language of our own statute.
I find more logic in that which Justice Donaldson wrote in Brusseau, other than his belief that he preferred to forge an “assault-murder” exception to the statute— based upon a theme common to both his opinion and that of the majority that the state ought not to be expected to wait a year and a day to see if the person assaulted expires from his injuries. This rationale is not all persuasive. Where the victim’s fate is in doubt, there is no reason to, and every reason not to, move so swiftly as did the prosecutors in Randolph and in Brusseau. As I pointed out in my dissent in Stockwell v. State, 98 Idaho 797, 573 P.2d 116 (1977), in writing of the prosecutor’s statutory options to bring about a dismissal under I.C. § 19-3504, “the prosecutor might want to bring a charge of murder where the victim dies after the magistrate has bound the accused over on charges of assault. I.C. § 19-1717.” 98 Idaho at 815, 573 P.2d at 134.
As a matter of actual fact, in Randolph the prosecutor only two days after filing the criminal complaint charging assault and battery, and likely upon receiving some sage advice from older practitioners, moved the court to dismiss, but inexplicably thereafter withdrew his motion. The defendant, of course, had quickly gone into court and entered a plea of guilty the very day on which he was charged. On appeal the Court’s holding on jeopardy as to the assault and battery charge was a sublime equivocation, to say the least: “[J]eopardy attached probably before, or at least on, appellant’s plea of guilty.” 61 Idaho at 459, 102 P.2d at 914. The Court did not give any consideration to the State’s right to dismiss, the motion having been withdrawn, and in what appears to be an obvious intent to “correct” the result of the prosecutor’s poor judgment in having moved too swiftly, reached the conclusion that I.C. § 18-301 (then I.C.A. 17-301) did not apply where the victim later made a timely demise. It has often but truly been said that “hard cases make bad law.” In Brusseau, the opinion of the Court went along with Randolph but there was more merit in Justice Donaldson’s caution that the court ought not “reach a somewhat skewed interpretation” of the statute. 96 Idaho at 562, 532 P.2d at 567 (Donaldson, J., dissenting and concurring). As he points out, “[t]he act in question was Brusseau’s firing the pistol at Arriola’s head.” 96 Idaho at 561, 532 P.2d at 566.
Brusseau is a clear and convincing example of a single act which the legislature has made punishable in different ways by different provisions of the criminal code. State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979) is an example, admittedly a close one, of two separate acts.
In Horn’s case, his single act was entering a cab, and by use of threat of force both relieving the victim of his freedom and his money. Had he in the same drunken escapade shot the cab driver in order to seal his lips, then the case would be McCormick. Any time a defendant has wrongfully de*199tained a person of his liberty long enough to rob his pockets, the same act technically could result in charges of both kidnapping and robbery, but as soon as there is a guilty plea or conviction on either one, the defendant has been in- jeopardy under the statute. Where the verdict is simultaneous, however, he may be convicted and sentenced under the penalty provisions of but one.