dissenting.
There are times when judges and justices, seeking to preserve law and order and project an image of support for law and order, themselves inadvertently misinterpret the law.
This case, unfortunately, may be an example of such a situation.
Idaho Code § 18-301 reads:
18-301. 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 it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.
This Court in State v. Horn, 101 Idaho 192,197, 610 P.2d 551, 556 (1980), interpreted I.C. § 18-301 in the following fashion:
Idaho’s multiple punishment statute, I.C. § 18-301, exceeds the scope of the constitutional constraints on double jeopardy. Under I.C. § 18-301 a defendant cannot be punished twice for the same act, rather than the same crime. If defendant’s single action creates liability under two criminal statutes, defendant can only be punished under one statute. See State v. Brusseau, 96 Idaho 558, 532 P.2d 563 (1975).
Thus, both our statutes and our case law focus on whether the same act or omission is the foundation of each crime.
In the instant case the “sameness” can be diagramed as follows:
Acts Leading to Conviction
Kidnapping / Criminal Contempt
1. Intent 1. Intent
2. Detention and Failure 2. Failure to Return to Return Child by Child by Monday Monday
*1016There was only one act here (however egregious), i.e. the withholding of one child from one mother by one miscreant father.
The majority opinion totally misstates and confuses the appropriate focus of our inquiry by comparing the acts constituting kidnapping with those constituting grand theft by extortion when the correct focus and the only issue on appeal is comparing the acts constituting kidnapping with those constituting criminal contempt. That basic error is contained in the part of the majority opinion footnoted below, which is the key to the majority attempt to justify its result.1
Logic and the ample case authority requires reversal of this case.
Chapman was charged with kidnapping under I.C. § 18-4501(2).2 Chapman was also charged with criminal contempt of court under I.C. § 18-1801(4).3
It is evident that the acts of Chapman which violated the temporary custody order are the identical acts which lead to Chapman’s conviction on the kidnapping offense. In Louisiana v. Hope, 449 So.2d 633 (La.App. 1st Cir.1984), the court dealt with a situation where the defendant was convicted of criminal contempt for violating a child visitation order by removing the child from the state for five months. The court held that double jeopardy provisions precluded subsequent prosecution for simple kidnapping, as the offenses were the same under the “same evidence” test:
The contempt charge only required proof that defendant wilfully disobeyed a lawful order of the court. The simple kidnapping charge required proof that defendant took the child out of the state, from the custody and without consent of the legal custodian, with the intent to defeat the jurisdiction of the court. However, the proof necessary to convict defendant of the simple kidnapping charge would have been sufficient to convict defendant of the contempt charge. We therefore conclude that the two offenses are the same under the “same evidence” test and that the trial of defendant on the simple kidnapping charge would have the effect of placing defendant twice in jeopardy for the same course of conduct. Id at 636.
Courts in other jurisdictions have concurred in the ruling of Hope that a defendant punished for criminal contempt cannot be punished for a substantive criminal of*1017fense arising out of the same act. In U.S. v. U.S. Gypsum Co., et al., 404 F.Supp. 619 (D.D.C.1975), the court held that double jeopardy barred a contempt petition for price fixing because of a previous indictment for the same conduct. The court stated as follows:
Since the contempt proceeding contains only one element, i.e. wilful intent, which was not present in the criminal proceeding, (the) two offenses are the same for criminal jeopardy purposes within the meaning of the Blockburger test____ The addition of the element of a willful violation of a court decree ... is not ... sufficiently material or substantial to supersede the considerations of fairness and finality which form the basis of the double jeopardy bar ... to go forward with a second prosecution against Respondents for substantially the same price-fixing scheme for which they have already been convicted would contravene the constitutional protection against double jeopardy ... Id. at 622-623, 625.
In Gypsum, the court rejected an approach to double jeopardy which concentrated on a technical comparison of the elements of the two statutes rather than on the overwhelming similarity in the proof.
In People v. Gray, 36 Ill.App.3d 720, 344 N.E.2d 683 (1976), the defendant was punished for indirect criminal contempt for assaulting his wife in violation of a protective order entered in a divorce action. The court held that a subsequent prosecution for aggravated battery was violative of the fifth amendment prohibition against double jeopardy, notwithstanding technical differences as to intent and disparity in punishment available for the two offenses. The court reasoned that:
While it is true that the contempt proceedings could not have resulted in the judgment that defendant was guilty of aggravated battery, the fact remains that he was twice punished for the same offense under the Blockburger test, because the elements of proof were substantially identical in both prosecutions. We do not believe that a mere disparity in punishments available for the two offenses restricts the application of the double jeopardy bar.” Id., 344 N.E.2d at 687.
In holding that the fifth amendment prohibition against double jeopardy is violated when conduct previously punished as an indirect criminal contempt is again sought to be punished as a substantive criminal offense, the Gray court distinguished federal cases which permitted dual sanctions by noting the following:
... [T]he federal cases which have permitted dual punishment by summary contempt and criminal prosecution of the same acts are clearly distinguishable from the instant indirect contempt proceeding where defendant was forced to “marshal the resources and energies necessary for his defense more than once for the same alleged criminal acts. [Citations omitted].
In 1977, the Illinois Supreme Court upheld the Illinois Appellate Court’s decision in People v. Gray, 69 Ill.2d 44, 12 Ill.Dec. 886, 370 N.E.2d 797 (1977). The court stated that, “here an application of the same evidence test makes manifest that defendant was prosecuted and punished twice for the same offense____ Since the offenses of criminal contempt and aggravated battery were the same, a trial for the offense in both the divorce and criminal court violates the guarantees against double jeopardy.” Id., 12 Ill.Dec. at 47, 370 N.E.2d at 800.
In People v. Holmes, 54 Ill.App.3d 843, 11 Ill.Dec. 498, 368 N.E.2d 1106 (1977), the fact pattern was similar to that of Gray. However, in Holmes there was no final determination of the contempt charge, but the court held that jeopardy attached when the trial court in the contempt proceeding began to hear evidence. Therefore, double jeopardy prohibited the defendant’s criminal prosecution for armed violence based upon the same facts and acts which were previously the subject of the contempt hearing.
In People v. Lucas, 146 Ill.App.3d 5, 99 Ill.Dec. 832, 496 N.E.2d 525 (3rd. Dist. 1986), the court again dealt with a fact situation where a husband was charged *1018with contempt for violation of a protective order in a dissolution proceeding that required both the husband and wife to refrain from striking or otherwise interfering with personal liberty of the other party. Therefore, the subsequent aggravated assault and battery charge was viewed by the court as successive prosecution and barred by prohibition against double jeopardy. The same act which would have convicted the defendant of assault and battery was the identical act which would have lead to a contempt conviction.
The acts which resulted in Chapman’s kidnapping conviction are identical to the acts which led to his criminal contempt conviction. The two offenses are not divisible into separate events and this case cannot be distinguished from Idaho case law interpreting I.C. § 18-301. In State v. Gallatin, 106 Idaho 564, 682 P.2d 105 (Ct.App.1984), the Court of Appeals ruled that the defendant could not be tried and convicted of both conspiracy to deliver cocaine and aiding and abetting delivery of cocaine. The Court of Appeals reasoned that everything Gallatin did to aid and abet the delivery of cocaine was also done in furtherance of the conspiracy. The court noted that “he did nothing more as a principal by aiding and abetting the delivery of the cocaine than he did in the furtherance of conspiracy.” Id. at 569, 682 P.2d 105.
The majority opinion in the instant case not only fails to apply, distinguish, or overrule Idaho’s leading case of State v. Horn, supra, quoted at the opening of this opinion, but cites it as standing for the exact opposite position than that for which it stands, the majority stating: •
However, it is clear that when two crimes arise from the same sequence of events, such is not sufficient to invoke the protection of I.C. § 18-301. See Daugherty v. States, 102 Idaho 782, 640 P.2d 1183 (Ct.App.1982); State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979). See also State v. Werneth, 101 Idaho 241, 611 P.2d 1026 (1980), cert. denied, 449 U.S. 1129 [101 S.Ct. 951, 67 L.Ed.2d 118] (1981); State v. Horn, 101 Idaho 192, 610 P.2d 551 (1980).
State v. Werneth above cited does not even deal with I.C. § 18-301, the opinion reading:
I.C. § 18-301 is, however, not applicable to the present case because Werneth was never acquitted of the I.C. § 18-2407 charge.
I have an additional problem with the mixing of concepts contrary to the logic of the statute displayed in the concurring opinion of Justice Donaldson wherein he states:
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.
The statute does not speak to “elements”— it speaks to the same “acts.” Elements (2) and (3) of criminal contempt as he lists them, i.e., (2) disobedience and (3) of a court order, are not physical acts but are the consequences of the acts listed as elements (2), (4), and (5) in Justice Donaldson’s analysis of kidnapping. In other words, he has not distinguished different acts but has set forth different elements which are something quite apart from acts.
Stated another way, disobedience is not an act, but taking the child is the act. The act of taking a child to England may or may not be disobedience, depending upon whether it violates a restraining order or is an authorized vacation trip. Disobedience of an order is not the act, it is the label we place upon the consequence of the act.
That Chapman has been tried twice for the same acts is made abundantly clear by the record of the proceedings. At the sen-*1019fencing hearing of March 5, 1986, on the kidnapping charge, Judge Schwartzman stated:
“This court has received a very lengthy pre-sentence investigation, incorporat[ing] many collateral resources, references, as far as this case is concerned. Needless to say, as far as the underlying facts are concerned, this court is as familiar with this ease as it’s been familiar with any case, since it was basically tried twice, since the evidence in both cases was practically the same.”
At the October 23rd pre-trial arguments, the court had at least two interesting comments:
“Criminal contempt is merely the willful disobedience to any process or order issued by the court.”
and:
“The point is this: The criminal contempt does not spin off of a kidnapping charge. The criminal contempt is a spinoff of Count II of the information, grand theft by extortion. As a matter of fact, the criminal contempt really had nothing to do with the offense of grand theft by extortion. It is not a necessarily included offense in any traditional sense. It was not alleged as the manner or means of committing the offense.”
That the same acts are involved in both the kidnapping and the criminal contempt, and that dates of occurrences or time cannot be an artificial excuse for separating them, is further evidenced by the Information. The Information in Count I charged kidnapping “on or between the 7th and 10th day of May, 1982, through the 16th day of June 1983.” Count II, relative to the extortion was subsumed in that same time period, the dates charged being June 14th, 1982 through June 16th, 1983.
I respectfully submit that the majority opinion, without providing rational conclusions on the true issues presented, legislates § 18-301 out of existence in most cases.
.We reiterate that Chapman was charged with kidnapping and grand theft by extortion, I.C. §§ 18-2403 and 18-2407. Kidnapping, as defined by I.C. § 18-4501(2), includes the leading, taking, enticing way, or detaining a child under the age of 16 years with intent to keep or conceal it from the person having lawful care or control thereof. Extortion, on the other hand, is defined as obtaining property by compelling or inducing the delivery of property by means of instilling a fear that if the property is not so delivered then extortioner will do acts calculated to cause damage or harm. We deem it clear that the necessary elements of each of those crimes are not necessary elements of the other, do not necessarily constitute included offenses of each other, nor are the acts necessary to support one of the charges necessarily acts which will support the other charge. In the instant case, the act of kidnapping occurred by the taking of the child on May 7, 1982, and transporting her out of the state and out of the United States with the clear demonstrated intent to keep and conceal it from the person having lawful care and control thereof. As noted by the trial judge, and demonstrated in the record, the alleged grand theft extortion did not occur until June 14 when Chapman began making telephone calls to the mother of the child. Clearly, although the acts of the defendant constituted a sequence of events, the acts upon which one charge was based were not the same acts upon which the other charge was based.
. Kidnapping in the second degree is defined by I.C. § 18-4501(2) as follows:
18-4501. Kidnapping defined. — Every person who wilfully:
2. Leads, takes, entices away or detains a child under the age of sixteen (16) years, with intent to keep or conceal it from its custodial parent, guardian or other person having lawful care or control thereof, or with intent to steal any article upon the person of the child; or
. Criminal contempt of court is defined by I.C. § 18-1801(4) as follows:
18-1801. Criminal contempts. — Every person guilty of any contempt of court, of either of the following kinds, is guilty of a misdemeanor:
4.Wilful disobedience of any process or order lawfully issued by any court.