concurring.
I am pleased to concur in the well-reasoned opinion authored for the court by Justice Cardine. I write only to assure those who disagree with that opinion that it was not casually embraced.
After considerable homework, I have concluded that when convictions for both felony-murder and the underlying felony of aggravated robbery are obtained, the defendant may be sentenced only for the greater charge. In my judgment, that is what the Wyoming legislature intended. Consequently, I would overrule Birr v. State, 744 P.2d 1117 (Wyo.1987), cert. denied, 496 U.S. 940, 110 S.Ct. 3224, 110 L.Ed.2d 671 (1990).
In studying this legal problem, I have paid close attention to the doctrine of stare decisis.
Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. See Vasquez v. Hillery, 474 U.S. 254, 265-266, 106 S.Ct. 617, 624-625, 88 L.Ed.2d 598 (1986). Adhering to precedent “is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932) (Brandéis, J., dissenting). Nevertheless, when governing decisions are unworkable or are badly reasoned, “this Court has never felt constrained to follow precedent.” Smith v. Allwright, 321 U.S. 649, 665, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944). Stare decisis is not an inexorable command; rather, it “is a principle of policy and not a mechanical formula of adherence to the latest decision.” Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604 (1940). This is particularly true in constitutional cases, because in such cases “correction through legislative action is practically impossible.” Burnet v. Coronado Oil & Gas Co., supra, 285 U.S., at 407, 52 S.Ct., at 447 (Brandéis, J., dissenting). Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved, see Swift & Co. v. Wickham, 382 U.S. 111, 116, 86 S.Ct. 258, 261-262, 15 L.Ed.2d 194 (1965); Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977); Burnet v. Coronado Oil & Gas Co., supra, 285 U.S., at 405-411, 52 S.Ct., at 446-449 (Brandeis, J., dissenting); United States v. Title Ins. Co., 265 U.S. 472, 44 S.Ct. 621, 68 L.Ed. 1110 (1924); The Genesee Chief v. Fitzhugh, 12 How. 443, 458, 13 L.Ed. 1058 (1852), the opposite is true in cases such as the present one involving procedural and evidentiary rules.
Payne v. Tennessee, 501 U.S. _, _ - _, 111 S.Ct. 2597, 2609-11, 115 L.Ed.2d 720, 736-37 (1991). I have no personal axe to grind in these cases; I take no personal delight in overruling a previous decision of this court, whether it is only five years old or fifty. My decision in these cases is based on my understanding of the law, nothing more.
The legal problem to be solved in Birr was whether the Wyoming legislature in*1355tended to impose multiple punishments. To determine legislative intent, the court used several judicial tools: Blockburger’s test, purpose of each statute, and the location of the proscribed offenses within the statutes.
Under Blockburger we ask whether each statutory provision requires proof of an additional fact which the other statutory provision does not. The felony-murder provision requires proof of these facts:
1. A killing of a human being;
2. during the taking of another’s property, which taking is attended by
3. the actor’s using a deadly weapon or the actor’s intentional inflicting of serious bodily injury upon another.
The aggravated robbery provision requires proof of these facts:
1. Taking another’s property attended by
2. the actor’s using a deadly weapon or intentionally inflicting serious bodily injury upon another.
So far as I can tell, the felony-murder provision requires proof of the additional fact of the killing; but the aggravated robbery provision does not require proof of an additional fact which the felony-murder provision does not. Therefore, the answer to the Blockburger question is, no, each statutory provision does not require proof of an additional fact which the other statutory provision does not; rather, only one of the two statutory provisions, the felony-murder one, requires proof of an additional fact. Consequently, under Blockburger’s test, there is only one offense.
Moving to the next judicial tool used to determine legislative intent, the purpose of each statute, Birr concludes that the felony-murder statute is intended to address the evil of murder while the underlying felony statute is intended to address non-murder evils, such as arson, sexual assault, robbery, etc. Birr also concludes the felony-murder statute is concerned with the interest to life while the underlying aggravated robbery statute is concerned with the interest to property. I disagree with these conclusions.
In my judgment the legislature intended both statutes to address the evil of harm to human beings; both are concerned with the interest to life. The common thread running through both provisions is an intent to deter criminal behavior that harms human beings and to punish those actors whose anti-social behavior presents a risk of harm to a fellow human being during the stealing of property. In Richmond v. State, 554 P.2d 1217, 1232 (Wyo.1976), this court observed that “[fjelony-murder is an unusual offense in that the death arising out of the robbery is purely an incident of the basic offense. It makes no difference whether or not there was an intent to kill.” The killing may be purely accidental; it may be cold-blooded. The punishment is the same regardless of the inherent nature of the act of killing. The reason for this is the high degree of risk of causing death involved in the underlying act of using a deadly weapon to take another’s property. Thus, the primary evil addressed by both the felony-murder provision and the aggravated robbery provision is the high degree of risk of harm to a human being involved in the act of using a deadly weapon to take another’s property.
With respect to the interest-to-life concept, it is significant to me that the legislature placed both provisions in chapter 2 entitled “Offenses Against the Person.” The underlying felonies of robbery and aggravated robbery are both primarily concerned with interests to life. Larceny, as a lesser-included offense of robbery and its aggravated sibling, is placed in chapter 3 entitled “Offenses Against Property.” Consequently, I disagree with Birr’s reasoning that the robbery provisions are only concerned with interest to property. Certainly, as larceny is a constituent part of robbery, robbery is somewhat concerned with interest to property; however, considering the high degree of risk of harm/ death involved in robbery, I conclude robbery is much more concerned with the interest to life.
With respect to the legislature’s placement of the felony-murder provision and the robbery provisions in separate statutes, *1356each with its own punishment provision, I do not conclude from this a legislative intent to permit multiple punishments. Rather, I find it more revealing in our exercise of determining legislative intent to consider the progression of both offense elements and associated punishments as we move from the basic larceny provision to the robbery provision to the aggravated robbery provision to the felony-murder provision. In larceny the actor takes another’s property but does not interact behaviorally with the property owner. The punishment for taking another’s property of a value of $500 or more is imprisonment of not more than ten years, a fine of not more than $10,000, or both. In robbery, the actor takes another’s property while interacting behaviorally with that person. That is, with respect to a person (the larceny victim), the actor either inflicts bodily injury, threatens with immediate bodily injury, or intentionally puts in fear of immediate bodily injury. The punishment is imprisonment of not more than ten years regardless of the value of the property taken. In aggravated robbery, the actor, again taking another’s property and interacting with a person, introduces a new element, either the actor intentionally inflicts or tries to inflict serious bodily injury or the actor shows or uses a deadly weapon. The punishment is imprisonment of not less than five nor more than twenty-five years. With respect to the progression from larceny to aggravated robbery, as the actor’s behavior towards the victim increases the risk of harm to the victim, there is a corresponding increase in the amount of punishment meted out to the actor. That punishment, in my judgment, covers not only the property-taking element but also the risk-of-harm element. It is a punishment package.
This punishment package notion is present also when the robbery/aggravated robbery progresses to felony-murder. In felony-murder, the actor has interacted behaviorally exactly the same way with the robbery victim as he did before, with one important difference. Instead of inflicting or threatening or putting in fear of bodily injury and instead of inflicting or trying to inflict serious bodily injury or showing/using a deadly weapon, the actor kills the victim. But, the death may have been accidentally caused; it may have been in cold-blood. How it was caused is immaterial; all that matters is, it happened. The punishment is either death or life imprisonment, the latter being without possibility of parole. That punishment is the heaviest society can exact. That punishment, in my judgment, covers not only the property taking element but also the harm-to-human being element involved in the actor’s behavioral interaction with the victim. Thus, from the basic offense of larceny, where the interest is property, the legislative scheme progressed through the robbery offenses, where the paramount interest is life, to the “unusual offense” of felony-murder, where the paramount interest is also life. Through this progression, the punishments have increased corresponding to the extent to which the interest to life is in jeopardy.
In addition to considering the above and foregoing judicial tools used in Birr to determine legislative intent, I have also considered a few others not employed in Birr. I have considered the case law of the jurisdiction from which our criminal statutes derived. Apodaca v. State, 627 P.2d 1023, 1027 (Wyo.1981). I have also remembered that we try to avoid an intent that is unreasonable or leads to an absurd result; we read all statutes relating to the same subject or having the same general purpose as constituting one law, and, where possible, harmoniously construe them in order to avoid conflicting and confusing results. Johnson v. Safeway Stores, Inc., 568 P.2d 908, 913 (Wyo.1977). We read these statutes as part of a general and uniform system of jurisprudence, Civic Ass’n v. Railway Motor Fuels, 57 Wyo. 213, 218, 116 P.2d 236, 245 (1941).
Our criminal statutes proscribing murder appear to have come from Indiana. See Wyo.Stat. § 450 (1899), which refers to R.S.Ind. § 1904, Indiana’s first degree murder and felony-murder statute. See also Wyo.Stat. § 5789 (1910). Researching early Indiana cases, from 1855 through 1890, *1357one finds that the punishment for felony murder was death. That was also the punishment under Wyoming law after statehood in 1890. Thus, there are no early Indiana cases that decided the question we are faced with. Although early Indiana cases concerned felony murder (including robbery), there were obviously no instances of multiple punishments since death was the only punishment prescribed. Wyoming’s felony murder statute remained the same as Indiana’s well into this century. It remains similar even today. See Ind.Code Ann. § 35-42-1-1 (Burns 1985). I believe Candler v. State, 266 Ind. 440, 363 N.E.2d 1233, 1237 (1977), is the first occasion on which the Indiana Supreme Court had to decide whether an armed robbery conviction merged into a felony murder conviction when the felony murder consisted of a killing in the commission of an armed robbery. Merger was recognized. That decision has been followed in all like Indiana cases since. See e.g., McCurry v. State, 558 N.E.2d 817, 818 (Ind.1990); Huffman v. State, 543 N.E.2d 360 (Ind.1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3257, 111 L.Ed.2d 767 (1990); Hicks v. State, 474 N.E.2d 987, 990 (Ind.1985); Eddy v. State, 496 N.E.2d 24 (Ind.1986); Elmore v. State, 269 Ind. 532, 382 N.E.2d 893 (Ind.1978). Thus, in Indiana multiple punishments for felony murder and the underlying felony are prohibited.
Before leaving Indiana law, consider what was said in Moynihan v. State, 70 Ind.Rep. 126, 130 (1880), concerning the perpetration of the underlying felonies of rape, arson, robbery, or burglary:
The perpetration of * * * these offences * * * involves great moral depravity and an utter disregard of the rights of person and property; and the legislature, for The protection of society and for wise ends, have thought it necessary to make the taking of life in the perpetration of * * * those offences, murder in the first degree, without any reference to any intent to commit the homicide. The party who perpetrates * * * those offences * * * intends a great wrong in the commission of the offence, and if death ensue he must take the consequences which results. (Emphasis added).
This was the state of the law in Indiana when Wyoming borrowed the felony murder statute from Indiana. Moynihan suggests a legislative intent that the heaviest punishment society can exact, death, is designed with the twin interests to life and property in mind. The punishment imposed is clearly related to the “great wrong in the commission of the” underlying felony.
With respect to whether a legislative intent of multiple punishments is likely, I think that possibility leads to an absurd imprisonment. If the sentence is death, it is absurd to tack on an additional punishment of “X” years of imprisonment. If the sentence is life imprisonment, in Wyoming there is no parole. Kennedy v. State, 595 P.2d 577, 578 (Wyo.1979). Thus, again, it is absurd to tack on an additional punishment of “X” years of imprisonment. To the argument that a life sentence can be commuted by the governor under Wyo. Const, art. 4, § 5, the simple answer is that that is of no moment in the context of determining legislative intent. The commutation power is strictly a matter within the constitutional prerogative of the executive department and does not concern this court. Kennedy, 595 P.2d at 578.
The Wyoming statutes proscribing offenses against the person, as found within chapter 2 of the title, relate to the same subject and have the same general purpose. Accordingly, we should read them as one law and, where possible, construe them harmoniously in order to avoid confusing and conflicting results. We must read these provisions as part of a uniform system of jurisprudence. Reading these particular statutes in this light, I find that the legislative intent was to impose only the greater punishment, not multiple punishments, in the felony-murder situation. Given the graduated levels of punishment as the crimes progress from the basic offense (against property) of larceny through robbery (offense against person and property) to felony murder (offense against person and property), I see a uniform system of jurisprudence and am convinced that the *1358legislative intent was a single punishment, which, as noted earlier, is the severest our society can impose on one of its members.
Finally, we know that penal statutes are to be strictly construed and, in case of doubt, a rule of lenity may be applied. Application of these rules would assist in resolving the question in favor of a single greater punishment.
In closing, I would offer this thought with which I agree:
[S]tare decisis does not spring full-grown from a “precedent” but from precedents which reflect principle and doctrine rationally evolved. Of course, it would be fool hardy not to recognize that there is potential for jurisprudential scandal in a court which decides one way one day and another way the next; but it is just as scandalous to treat every errant footprint barely hardened overnight as an inescapable mold for future travel
People v. Hobson, 39 N.Y.2d 479, 348 N.E.2d 894, 901, 384 N.Y.S.2d 419, 425 (1976).