concurring:
The appellant makes two distinct arguments in this case. First, he contends that past decisions of this Court involving negligent homicide and involuntary manslaughter result in the conclusion here that a motor vehicle accident results in only one offense regardless of the number of deaths which result. Second, he argues that this Court’s application of double jeopardy principles prevents the imposition of two punishments for deaths which result from one automobile accident.
Myers’ first argument is based on two earlier decisions. In Myers v. Murensky, 162 W.Va. 5, 245 S.E.2d 920 (1978), we held that W.Va.Code § 17C-5-1(a) (1974 Repl. Vol.), the state’s negligent homicide statute, created only one offense even when more than one person died in a motor vehicle accident. We reached this conclusion by applying the rule of lenity in. which ambigious penal statutes must be construed against the state. Syllabus Point 1, Myers v. Murensky, supra. Since the statute did not specifically make each death a separate offense, we interpreted it in a limited manner.
One year later, we ruled in State v. Vollmer, 163 W.Va. 711, 259 S.E.2d 837 (1979), that a person could be charged with either negligent homicide or involuntary manslaughter in cases involving motor vehicle deaths. This holding was based on the fact that both the negligent homicide statute and the crime of involuntary manslaughter consisted of the same elements and carried the same penalties with respect to deaths resulting from a motor vehicle accident. Syllabus Point 3, State v. Vollmer, supra.
As a consequence, the appellant contends that since he was charged with involuntary manslaughter, the rule prohibiting multiple punishments in negligent homicide cases should be applied to involuntary manslaughter charges. He interprets Vollmer as equating negligent homicide and involuntary manslaughter; therefore, a motor vehicle accident creates one offense regardless of whether the accused is charged with negligent homicide or involuntary manslaughter.
*282The majority refutes this argument by overruling the Court’s prior interpretation of the negligent homicide statute in Myers. As we pointed out in Myers, supra, the majority view is that a single automobile accident may result in multiple offenses.
Our reinterpretation of the negligent homicide statute is supported by recent amendments to it made by the Legislature. Although not directly on point, the Legislature’s action in increasing the allowable penalties and punishments that may be imposed for deaths in motor vehicle crashes resulting from use of alcohol or other drugs, W.Va.Code § 1705-2 (1982 Cum. Supp.), makes the statute less ambiguous regarding multiple punishments and makes application of the rule of lenity less compelling.
The appellant’s second argument is based on prior decisions regarding double jeopardy. However, he does not take into account the most recent pronouncements by this Court regarding the proper constitutional test to determine whether multiple punishments have been imposed for the same offense. Additionally, the majority opinion does not fully explain our development of double jeopardy principles.
The state constitutional prohibition against double jeopardy is found in article 3, section 5 of the West Virginia Constitution. Under this provision, a person may not “be twice put in jeopardy of life or liberty for the same offence [sic ].” W.Va. Const, art. 3, § 5. This simple declaration has spawned much confusion over how to determine whether the “same offense” provision has been violated.
In State ex rel. Dowdy v. Robinson, 163 W.Va. 154, 257 S.E.2d 167 (1979), the Court ruled that either the “same evidence” or “same transaction” test could be used to determine whether a person was being tried twice for the same offense. Syllabus Point 1, State ex rel. Dowdy v. Robinson, supra. This case arose in the context of an individual who had been rein-dicted on a charge for which he claimed he had already been acquitted. The prohibition of such action by the state is a classic purpose of constitutional double jeopardy protection. “The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.” Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).
Briefly explained, the same evidence test looks to whether the state must prove different facts for different offenses. If so, then the offenses are different; if the proof is the same, then only one offense has been committed and multiple punishments may not be imposed. The same transaction test looks to the criminal act itself. If the offense charged arose out of a single criminal transaction or occurrence, then the accused may be charged with only one offense.
We considered double jeopardy again in State ex rel. Johnson v. Hamilton, 164 W.Va. 682, 266 S.E.2d 125 (1980). That case considered a factual situation involving the deaths of a father and son who were shot minutes, perhaps seconds, apart. The result of that case was a constitutional joinder rule which required all offenses resulting from a single transaction to be contained in a multi-count indictment or by separate indictments consolidated at trial. In either method, the Court required the state to try all charges arising out of a single transaction in one trial. However, the majority held that “separate punishments may be imposed for separate offenses arising out of a single criminal transaction.” Syllabus Point 3, in part, State ex rel. Johnson v. Hamilton, supra. Thus, a bifurcation was created in our double jeopardy rule whereby multiple offenses arising out of the same transaction had to be joined in one trial, but if multiple convictions were obtained they could be separately punished. Consequently, we had a constitutional jeopardy rule involving the same transaction test for joinder of offenses, but a “same offense” test when it came to multiple punishments for the joined offenses.
*283Soon afterwards, the Court retreated from the constitutional aspects of this join-der rule. In State ex rel. Watson v. Ferguson, 166 W.Va. 337, 274 S.E.2d 440 (1980), the defendant had been indicted on four separate counts of murder. He asked that one trial be conducted on all the counts. The trial judge refused his request and held a trial on one count. The defendant was convicted of first-degree murder. He then sought a writ of prohibition against being tried for the remaining three counts.
Much of the Court’s discussion in Watson centered on the advantages of a procedural rather than a constitutional joinder rule. Id., 166 W.Va. at 345, 274 S.E.2d at 444. We rejected the dichotomy in double jeopardy principles which had been present since Johnson.
As we have discussed earlier, the historical concept of double jeopardy centered on what is the same offense. Once it was determined that the offenses were the same, then there could only be one trial and one punishment for that offense. Johnson required that all related offenses be tried in one trial even though if separate convictions were obtained on the various counts at trial, separate punishments could be imposed. Thus, there was created a dichotomy between trial and punishment concepts in our double jeopardy doctrine.
Id. Therefore, in Watson, we adopted the joinder rule as a matter of judicial procedure rather than as a constitutional requirement.
In our subsequent double jeopardy decision of Gilkerson v. Lilly, 169 W.Va. 412, 288 S.E.2d 164 (1982), we again emphasized that the same transaction test was not our constitutional double jeopardy rule. There, a 19-year-old was charged with the felony of nighttime breaking and entering and with the misdemeanor of contributing to the delinquency of a minor in connection with the theft of certain items from an ice cream establishment. Gilkerson pled guilty to the misdemeanor crime in magistrate court. He then claimed that since both charges arose out of the same transaction, and they had not been joined, his plea of guilty to the misdemeanor prevented his trial on the felony charge.
In our holding, we reiterated the procedural joinder rule announced in Watson and again rejected the same transaction test as a constitutional test for determining when a person has been tried or punished twice for the same offense. Rather, “the same transaction test for double jeopardy purposes is a procedural rule that is not mandated by either the State or federal constitutions but is in furtherance of the general policy enunciated in the double jeopardy clauses.” Syllabus Point 2, Gilkerson v. Lilly, supra.
The result of these cases, and the point of this review of them, is to clearly point out that the same transaction test is not to be used to determine whether a person has been tried or convicted more than once for the same offense for jeopardy purposes. It is to be used to determine when multiple offenses arising out of a single criminal transaction can be joined for a single trial. Cf. State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376, 380 (1981).
The focus of double jeopardy analysis remains the determination of whether the individual has been charged, tried or punished more than once for the same offense. This determination is to be made by use of the same evidence test “which provides that offenses are the same unless one offense requires proof of a fact which the other does not.” Syllabus Point 1, in part, State ex rel. Dowdy v. Robinson, supra.
Applying this test to the facts present, it is clear that the appellant was charged and convicted of two separate offenses. In proving each offense, the state had to prove the identity of each victim of the accident. The identity of each person was a distinct piece of evidence relevant only to each offense charged. Thus, two separate offenses occurred when the accident resulted in two deaths. Using the procedural same transaction joinder rule, the offenses were joined for one trial, but separate punishments were imposed for separate offenses. A relevant factor in our jeopardy analysis is a review of the criminal act itself and the extent of the defendant’s *284criminal culpability, particularly among multiple victims as we explained in State ex rel. Watson v. Ferguson, supra.
In any analysis of the policies underlying double jeopardy in the area of offenses against multiple victims, it must be recognized that the extent criminal culpability cannot be answered merely by looking at the shortness of the time frame. Some consideration must be given to the defendant’s criminal acts and intent. We do not conceive that in fashioning a double jeopardy policy ... that we can ignore the fact that multiple victims have been the subject of the defendant’s acts. There can be little doubt that one function of a criminal justice system is to enable those individuals who have been victimized by the criminal acts of another to find some individual vindication of the harm done to each. Certainly, the degree of culpability, and as a consequence the degree of punishment, must bear some proportion not only to the magnitude of the crime but also to the number of victims involved. These are fundamental considerations that society expects from a criminal justice system.
Watson, 166 W.Va. at 348, 274 S.E.2d at 446.
There can be no doubt that this Court has wavered between different applications of double jeopardy principles. However, our most recent decisions have clearly rejected the same transaction test as our constitutional double jeopardy test to determine whether an individual has been tried or punished for the same offense more than once. That function rests with the same evidence test.
I am authorized to state that Chief Justice MILLER joins in this concurrence.