specially concurring.
I write to address the concerns raised by Justice Huntley in his dissent. He cites several cases (primarily from Louisiana and Illinois) which stand for the proposition that convictions for both criminal contempt and the underlying crime which led to the contempt charge violate double jeopardy. The Illinois and Louisiana courts apply the “same evidence test” when addressing double jeopardy concerns. Louisiana v. Hope, 449 So.2d 633 (La.App. 1st Cir.1984); People v. Gray, 36 Ill.App.3d 720, 344 N.E.2d 683 (1976). The “same evidence test is broader than the double jeopardy requirements of the U.S. constitution as contained in the fifth amendment. Hope, supra at 636. Idaho has adopted the “indictment or pleading theory” when ruling on double jeopardy challenges. State v. Sivak, 112 Idaho 197, 731 P.2d 192 (1986). State v. Thompson, 101 Idaho 430, 614 P.2d 970 (1980). While in this case, the “indictment or pleading theory” clearly does not preclude prosecution and conviction for both criminal contempt and kidnapping, this is not the issue before the Court.
The issue that needs to be focused upon is whether the acts which resulted in Chapman’s kidnapping conviction are identical to the acts which let to his criminal contempt conviction. In State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979), the Court examined the Califorhia and Arizona counterparts to § 18-301. The Court noted that the California courts had interpreted their statute as “being dependent upon the intent and objective of the defendant, i.e., if all offenses are incident to one objective, the defendant may be punished for any one of them, but not for more than one.” Id. at 115, 594 P.2d 149. However, the Arizona courts had interpreted their counterpart to I.C. § 18-301 and held that a defendant could be convicted of two crimes despite an identity of criminal objectives. The McCormick court adopted the Arizona rule. Thus, in McCormick, the defendant’s conviction for rape and burglary were upheld because the act of burglarizing was different from the act of raping.
The Court of Appeals in State v. Sensenig, 110 Idaho 83, 714 P.2d 52 (Ct.App.1985) correctly cited the rule from McCormick, but then distinguished acts by defining the elements of the individual crimes. Thus, the defendant’s conviction in Sensenig for the crimes of conspiracy to commit robbery, aiding and abetting a robbery, and aiding and abetting burglary was held not violative of I.C. § 18-301 because the differing elements for the three crimes.
Relying on McCormick and Sensenig, Chapman could be convicted of both kidnapping and criminal contempt because both require proof of separate elements. Proof of criminal intent (I.C. § 18-1080(4)), requires:
“(1) willful;
“(2) disobedience;
“(3) of a court order.”
Kidnapping in the second degree (I.C. § 18-4501(2)) requires:
“(1) willful;
“(2) detention;
“(3) of a child under the age of 16;
“(4) without lawful authority;
“(5) with the intent to conceal the child from its custodial parent.”
Since proof of the crimes require proof of different elements, in a broad sense, I.C. § 18-301 is not violated and Chapman could be convicted of both crimes. See also, State v. Greensweig, 103 Idaho 50, 644 P.2d 372 (Ct.App.1982).
*1015Even assuming that the two crimes involve the same act, there are overriding concerns involved that require the kidnapping conviction to be sustained. When heinous crimes are involved, a defendant should not be able to rely on a misdemean- or contempt conviction to circumvent the punishment for the more serious crime. This is especially true in a case such as this one, where the defendant asked for the instruction on the criminal contempt.
I first suggested a policy exception to I.C. § 18-301 in State v. Brusseau, 96 Idaho 558, 532 P.2d 563 (1975). (J. Donaldson, concurring in part and dissenting in part.) In Brusseau, the defendant plead guilty to attempted murder and assault with a deadly weapon. Subsequently, the victim of the assault died, and Brusseau was convicted of voluntary manslaughter. On appeal, Brusseau argued that I.C. § 18-301 prevented punishment for both voluntary manslaughter and attempted murder. The majority held that the subsequent death was a new act, and therefore, Brusseau could be prosecuted for both crimes but could not be punished for both crimes.
I pointed out that the statute speaks to acts of the accused, not acts of the victim. However I continued:
“Rather than distort the statute to reach a somewhat skewed interpretation, I believe it preferable to acknowledge an assault/murder exception to the ‘same act’ test. Special policy considerations are involved in factual situations like that now before us. Clearly the accused is entitled to a speedy trial and society is entitled to exact a penalty should conviction result, ^.s noted in Randolph, the state cannot be expected to wait a year and a day to determine whether an assault victim will survive his injuries.”
Similar policy considerations exist here. A judicial order should be afforded the utmost respect and a violation thereof should be punished regardless if the violation results in a separate crime. This is particularly true in orders concerning child custody disputes between parents. They should be enforced quickly and expediently without the use of the more complex procedures surrounding a felony charge. They should not be violated lightly and with impunity. Thus, a criminal contempt exception should be carved out of I.C. § 18-301, and Chapman’s kidnapping conviction should be sustained. Any other result is an assault on common sense and on the criminal justice system.