specially concurring.
I join in the cogently-reasoned decision of Justice Car dine and the concurrence of Justice Golden. I continue in my consistent opinion that 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) is wrong and that this court should determinatively follow the well-reasoned co-actor cases of Garcia v. State, 774 P.2d 623 (Wyo.1989) and Schultz v. State, 751 P.2d 367, 371 (Wyo.1988), Urbigkit, J., specially concurring.
In my perception, Birr misunderstands and misapplies Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). It is even more unfortunate and destructive in its contaminative effect in the whole category of cases addressing the concept that an accused cannot be separately sentenced under concepts of double jeopardy for a principal offense and also at the same time for a lesser included offense, e.g., more than one life sentence or death penalty for the same murder.
Stare decisis has nothing to do with my disfavor for Birr. Schultz and Garcia were right and Birr was wrong. All three of those cases were decided at about the same time. For an identically determined case, see State v. Elliott, 186 W.Va. 361, 412 S.E.2d 762 (1991).
A frequent validating test of any well-reasoned decision is citation by other jurisdictions in later cases. Birr has been only cited once in a subsequent case in Utah, but then not for the principal concern regarding double jeopardy. Conversely, a thorough analysis of the developing law, including more recent cases, discloses a clear majority trend in favor of our decision today.
The issue in Birr, Schultz, Garcia and now here in this case is simple, well explained and limited factually. When a felony murder is charged and a conviction obtained, can the accused be sentenced for more than the life sentence with a concurrent sentence for both the felony involved in the felony murder and also for the underlying felony which created the presumption of malice and permits the felony murder conviction? 1
First, consideration will be given to where Birr has reappeared in Wyoming law and then current national examination will be pursued regarding the defined concepts of double jeopardy and merger. It is first appropriate to restate the fallacy of *1359Birr. Blockburger determined for analysis of legislative intent that double jeopardy violation was avoided if each charged offense had a different element from the other. Birr took only half of the formula and was based upon the murder result having a different element, although obviously the felony to be used for felony murder was intrinsically incorporated without a separate element into the conviction. Obviously, the underlying felony does not have a different element since it is the functional factor providing the presumption of malice required to reach the first degree murder status.
This half-right misapplication of Block-burger created the Birr indigenous result. As a matter of definition, the felony cannot have a different element from the murder and, in identical fashion, the lesser included offense within the murder cannot have a different element from the principally charged crime. Out of this half-use of Blockburger; the Birr dual punishment exception to double jeopardy was created. See Michael S. Rankin, Note, CRIMINAL PROCEDURE—Consecutive Sentences for Felony Murder and the Underlying Felony: Double Jeopardy or Legislative Intent? Birr v. State, 744 P.2d 1117 (Wyo.1987), XXIII Land & Water L.Rev. 603, 613 (1988), which states:
Although the Birr court utilized a standard formulated by the United States Supreme Court to discern legislative intent, the court’s analysis failed. In its analysis, the court did not conclusively determine legislative intent. When rules of statutory construction fail to discern legislative intent, courts must construe those statutes in favor of the defendant. While such a result is in accordance with United States Supreme Court standards and the defendant’s presumption of innocence, the Wyoming Supreme Court ignored this well established principle. By neglecting to apply the statutory rule of construction in favor of lenity, the court subjected Birr to consecutive sentences in violation of the double jeopardy clause.
The fallaciousness of Birr at this time of continued regression of constitutional pro-teetion from the federal judiciary is highlighted by the subsequent consideration in Birr v. Shillinger, 894 F.2d 1160, 1162 (10th Cir.), cert. denied 496 U.S. 940, 110 S.Ct. 3224, 110 L.Ed.2d 671 (1990) where, without reference to Blockburger, the court’s per curiam stated:
Here, a majority of the Wyoming Supreme Court, in affirming petitioner’s convictions and sentences over the dissent of two justices, held that the Wyoming legislature intended cumulative punishment for accessory to felony murder and accessory to the underlying felony of aggravated robbery. Birr, 744 P.2d at 1120-22. The majority’s interpretation of the legislative intent for the imposition of multiple punishments is binding on this court irrespective of the views of the dissenters. Therefore, since the requisite legislative intent to impose multiple punishments exists, we find no violation of the double jeopardy clause.
The obvious concern is that there is nowhere in Wyoming law, statutory history, legislative activity or other informational material, any affirmative evidence that the Wyoming legislature intended to create a life sentence for felony murder and to add on a term of years for the constituent felony. Only by the improper application of Blockburger did we reach this juncture of a court-created exception to the Wyoming double jeopardy preclusion. Wyo. Const. art. 1, § 11.
The diffusion out of felony murder into lesser included concepts is illustrated by citation of Birr in dissent in Howard v. State, 762 P.2d 28 (Wyo.1988). The preference for multiple convictions for the same course of conduct and aversion to maintenance of the millennium-old concept of double jeopardy is well illustrated. Lauthern v. State, 769 P.2d 350 (Wyo.1989) demonstrated the contaminative potential of Birr to extend into the lesser included concepts, even though unnecessary in application and different, in fact, since the sentences were concurrent and not consecutive. Baum v. State, 745 P.2d 877 (Wyo.1987) is also dissimilar since two differentiated criminal events were considered without lesser in-*1360eluded concept application. Birr was then cited in Garcia v. State, 777 P.2d 1091, 1094 (Wyo.1989) for the opposite of its holding and a rather unusual idea for Wyoming law: “A defendant cannot receive multiple punishments for a single offense.” See, however, Nowack v. State, 774 P.2d 561 (Wyo.1989) compared to Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).
The extensive capacity of Birr to deny double jeopardy protection was forcefully presented in Duffy v. State, 789 P.2d 821 (Wyo.1990). Duffy conceptualizes why the prosecutorial discretion was originally limited in English law some four or more centuries ago by double jeopardy. Duffy raised the academic question of why limit criminal filings and trial to expected proof and defined offenses? Why not claim every crime in the criminal code and let the system at trial sort out whether the contended misconduct was embezzlement, homicide or only jay walking? This then is the history in Wyoming law of Birr and the recent regression of denied constitutional protection against double jeopardy.2
If logic and reasoned theory provide any relevance for structuring Wyoming law for future generations, consideration of the consecutive prosecution conclusions in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) and analysis of both the majority by Justice Kennedy and the dissent by Justice Scalia in Jones v. Thomas, 491 U.S. 376, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989) might provide direction in adjudicative responsibility. In Harris, 433 U.S. at 682, 97 S.Ct. at 2913, the United States Supreme Court recognized:
When as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one.
The majority in Thomas, 491 U.S. at 387, 109 S.Ct. at 2528, stated:
Double jeopardy is an area of the law filled with technical rules, and the protection it affords defendants might at times be perceived as technicalities. This is irrelevant whether ancient and important principles embodied in the Double Jeopardy Clause are implicated. “Violations of the Double Jeopardy Clause are no less serious than violations of other constitutional protections.” [Morris v.] Matthews, 475 U.S. [237], at 255, 106 S.Ct. [1032], at 1043 [89 L.Ed.2d 187] *1361[ (1986) ] (BLACKMUN, J., concurring in judgment).
Justice Sealia stated in dissent:
The Double Jeopardy Clause is and has always been, not a provision designed to assure reason and justice in the particular case, but the embodiment of technical, prophylactic rules that require the Government to turn square corners. Whenever it is applied to release a criminal deserving of punishment it frustrates justice in the particular case, but for the greater purpose of assuring repose in the totality of criminal prosecutions and sentences.
Thomas, 491 U.S. at 396, 109 S.Ct. at 2533.
Wyoming’s double jeopardy constitutional protection, derived since statehood from Wyo. Const, art. 1, § 11, is well anchored in conceptual understanding and historical precedent:
The law is well settled that if a defendant is convicted of a lesser felony than that charged in the indictment, he cannot again be tried for the greater, nor can a defendant claim a new trial on the ground that the jury found him guilty of a lesser grade of the offense charged in the indictment than the evidence warranted.
Phillips v. Territory, 1 Wyo. 82, 84 (Wyo.1872). Our earliest court discussed the sufficiency of an indictment and, in recognizing that it failed in another particular, then observed:
Not alleging those facts, it does not identify the offense upon the record; and therefore does not secure the accused in his right to plead autre fois acquit or autre fois convict to a second prosecution for the offense. This right is made constitutional by that amendment; it declares that “no person shall be subject for the same offense to be twice put in jeopardy of life or limb”; which, according to the 18 Wall, 163, ex parte Lange [85 U.S. 163, 21 L.Ed. 872 (1873)], means that he shall not be put in jeopardy of a second punishment for the same offense. This provision of the amendment erects the common law upon the subject into a constitutional sanctity.
McCann v. United States, 2 Wyo. 274, 294 (Wyo.1880).
The seminal case in an opinion written by Justice Blume, State v. Tobin, 31 Wyo. 355, 226 P. 681, 685 (1924) (quoting Byrne v. State, 12 Wis. 525), recited:
“The rule is well settled that, where a statute makes either of two or more distinct acts, connected with the same general offense and subject to the same measure and kind of punishment, indictable separately and as distinct crimes, when each shall have been committed by different persons or at different times, they may, when committed by the same person at the same time, be coupled in one count, as constituting altogether but one offense.”
This was followed by Loddy v. State, 502 P.2d 194 (Wyo.1972), cert. denied 414 U.S. 1134, 94 S.Ct. 877, 38 L.Ed.2d 760 (1974) and various other cases.3
This court then, in State v. Carter, 714 P.2d 1217 (Wyo.1986), Cardine & Urbigkit, JJ., dissenting, abandoned its historical *1362structure for the law, existent for approximately a century, without explanation or examination to adopt the separate evidence test instead of the transactional test which had historically existed. That result did not provide the most serious injury to Wyoming’s constitutional interest in avoiding double jeopardy. It was Birr, 744 P.2d 1117, where only half of the separate evidence rule was used and Blockburger was cited, but misapplied, that brought us to this present juncture of creating dual penalties for one completely self-defined criminal offense. The anomaly and the absurdity, previously anticipated from Birr, was best illustrated in Duffy, 789 P.2d 821 where the Birr fallacy did make a difference which did not exist in Birr with the felony murder life sentence initially imposed.
As Justice Cardine and this writer recognized, Birr, 744 P.2d at 1122, did not really do anything but create a possible change in the parameters of philosophic review by the Governor under his power of commutation. Wyo. Const. art. 4, § 5. The danger was that Birr would have been followed by future cases where the multiplication of penalties were subject only to the imagination of the prosecution and the contribution of this court in eviscerating the century-old tradition of our law which was solemnly emplaced in the Wyoming Constitution as the preclusion against double jeopardy. Simply stated, when we take one criminal offense — felony murder, mandatory life sentence — and create two penalties without rhyme or reason, we abrogate a basic constitutional right.
The Fifth Amendment states that “[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.... ” In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Court labeled the double jeopardy clause a “basic constitutional guarantee,” id. at 718, 89 S.Ct. at 2077, and quoted an 1873 case that stated: “ ‘If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And ... there has never been any doubt of [this rule’s] entire and complete protection of the party when a second punishment is proposed in the same court on the same facts, for the same statutory offense.’ ” Id. at 717-718, 89 S.Ct. at 2076-77 (quoting Ex Parte Lange, 85 U.S. (18 Wall.) 163, 168, 21 L.Ed. 872 (1873)).
McIntyre v. Trickey, 938 F.2d 899, 904 (8th Cir.1991). “What is critical is the double jeopardy relationship of the alleged offenses under statute, indictment, evidence and jury charge.” State v. Herrera, 754 S.W.2d 795, 796 (Tex.App.1988).
The compelling majority rule which we today adopt that only one sentence can be given to a defendant convicted of both felony murder and the constituent felony includes this illustrative, but not even inclusive in current time, inventory: Hall v. State, 299 Ark. 209, 772 S.W.2d 317 (1989); Richie v. State, 298 Ark. 358, 767 S.W.2d 522 (1989); McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988); People v. Guffie, 749 P.2d 976 (Colo.App.1987); People v. Horton, 683 P.2d 358 (Colo.App.1984); People v. Raymer, 662 P.2d 1066 (Colo.1983); State v. Wood, 208 Conn. 125, 545 A.2d 1026, cert. denied 488 U.S. 895, 109 S.Ct. 235, 102 L.Ed.2d 225 (1988); State v. Usry, 205 Conn. 298, 533 A.2d 212 (1987); Harling v. United States, 460 A.2d 571 (D.C.App.1983); Rainwater v. State, 260 Ga. 807, 400 S.E.2d 623 (1991); Thomas v. State, 256 Ga. 176, 345 S.E.2d 350 (1986); Gore v. State, 246 Ga. 575, 272 S.E.2d 306 (1980); Atkins v. Hopper, 234 Ga. 330, 216 S.E.2d 89 (1975); State v. Ah Choy, 70 Haw. 618, 780 P.2d 1097 (1989); Sivak v. State, 112 Idaho 197, 731 P.2d 192 (1986).
Additional cases which follow the double jeopardy majority rule regarding dual sentencing for felony murder include: People v. Trimble, 220 IlI.App.3d 338, 162 Ill.Dec. 790, 580 N.E.2d 1209 (1991); People v. Cook, 129 Ill.App.3d 531, 84 Ill.Dec. 719, 472 N.E.2d 856 (1984); People v. Holman, 103 Ill.2d 133, 82 Ill.Dec. 585, 469 N.E.2d 119 (1984), cert. denied 469 U.S. 1220, 105 S.Ct. 1204, 84 L.Ed.2d 347 (1985); 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); State v. Jones, 525 *1363So.2d 1149 (La.App.1988); State v. Stewart, 400 So.2d 633 (La.1981); Shabazz v. Com., 387 Mass. 291, 439 N.E.2d 760 (1982); People v. Zeitler, 183 Mich.App. 68, 454 N.W.2d 192 (1990); People v. Wilder, 411 Mich. 328, 308 N.W.2d 112 (1981); People v. Anderson, 62 Mich.App. 475, 233 N.W.2d 620 (1975); State v. Fratzke, 354 N.W.2d 402 (Minn.1984); State v. Lane, 629 S.W.2d 343 (Mo.1982); State v. Connell, 208 N.J.Super. 688, 506 A.2d 829 (1986).
The list continues: People v. Castillo, 178 A.D.2d 113, 576 N.Y.S.2d 855 (1991); see also manslaughter and constituent assault, People v. Garland, 177 A.D.2d 410, 576 N.Y.S.2d 848 (1991); People v. Bokun, 145 Misc.2d 860, 548 N.Y.S.2d 604 (1989); State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987), cert. denied 373 S.E.2d 554 (N.C.1988), cert. granted and judgment vacated on different issue, 494 U.S. 1022, 110 S.Ct. 1465, 108 L.Ed.2d 603 (1990); Tibbs v. State, 819 P.2d 1372 (Okl.Cr.1991); Munson v. State, 758 P.2d 324 (Okl.Cr.1988), cert. denied 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1989); State v. Fish, 282 Or. 53, 577 P.2d 500 (1978); Com. v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981); State v. Powers, 566 A.2d 1298 (R.I.1989); Herrera, 754 S.W.2d 795; State v. McCovey, 803 P.2d 1234, 1238 (Utah 1990); State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991); State v. Tesack, 181 W.Va. 422, 383 S.E.2d 54 (1989); Elliott, 412 S.E.2d 762.
See also, in federal court cases: Taylor v. Whitley, 933 F.2d 325 (5th Cir.1991); Neville v. Butler, 867 F.2d 886 (5th Cir.1989); Rubino v. Lynaugh, 845 F.2d 1266 (5th Cir.1988); United States v. Chalan, 812 F.2d 1302 (10th Cir.1987); Wiman v. Lockhart, 797 F.2d 666 (8th Cir.), cert. denied 479 U.S. 1021, 107 S.Ct. 678, 93 L.Ed.2d 728 (1986); Sekou v. Blackburn, 796 F.2d 108 (5th Cir.1986).
It is recognized that a minority rule in a few state courts does exist founded upon the explanation that the felony does not constitute a lesser included offense within the felony murder, Fallada v. Dugger, 819 F.2d 1564 (11th Cir.1987) (Florida law); not a lesser included offense, State v. Enmund, 476 So.2d 165 (Fla.1985); State v. Bailey, 247 Kan. 330, 799 P.2d 977 (1990), cert. denied — U.S.—, 111 S.Ct. 2022, 114 L.Ed.2d 108 (1991); determined legislative intent, State v. Close, 191 Mont. 229, 623 P.2d 940 (1981); Talancon v. State, 102 Nev. 294, 721 P.2d 764 (1986); legislative interpretation, State v. Blackburn, 694 S.W.2d 934 (Tenn.1985); legislative interpretation, Fitzgerald v. Com., 223 Va. 615, 292 S.E.2d 798 (1982), cert. denied 459 U.S. 1228, 103 S.Ct. 1235, 75 L.Ed.2d 469 (1983). However, see State v. Stephens, 93 N.M. 458, 601 P.2d 428 (1979) compared to State v. Pierce, 110 N.M. 76, 792 P.2d 408 (1990). Then, see State v. Martinez, 95 N.M. 421, 622 P.2d 1041 (1981) and the separate victim examination in State v. Neely, 112 N.M. 702, 819 P.2d 249 (1991). Cf. Gaskin v. State, 591 So.2d 917 (Fla.1991), felony murder and premeditated murder cannot be separate offenses for a single death.
Logic, constitutional theory, consistency and any rational application of legislative intent in establishing felony murder as one of two first degree murder crimes requires this present majority’s decision. As simplistically as it can be stated, felony murder cannot be committed without commission of the intrinsically included felony. “ ‘ “In other words, it is impossible to commit the greater offense without necessarily committing the lesser also.” ’ ” Trimble, 162 Ill.Dec. at 795, 580 N.E.2d at 1214 (quoting People v. Garza, 125 Ill.App.3d 182, 188, 80 Ill.Dec. 483, 465 N.E.2d 595 (1984)). In concurring in this decision, I continue in consistent application of well-determined legal principles.
. In a sense, this is a continued inane academic exercise. In Wyoming, a life sentence is for life subject only to commutation by the Governor. If the Governor decided to commute, the doubled-up sentence would not likely make a particle of difference. The problem is that rules of law, invalid or subverted as they may. be, have a way of escaping from a limited context into other applications where more effective and equally faulty in use. The Birr fallacy could have, unfortunately, directly fit into lesser in-eluded dual sentencing results. The pale remnants of protection against double jeopardy would have suffered one more egregious body wound. Tragically, although the effort may be academic, the issue is deeply embedded within the basic constitutional protection that can be traced back before the time of Christ in world history. The issue is simple. Double jeopardy is, in this case, to be questioned — sentenced twice for the same criminal conduct.
. One unfortunate aspect found in some of the cases is the failure of the court to recognize the difference between felony murder and premeditated murder. The double jeopardy issue and the entire subject of merger does not occur when homicide proof is something other than felony murder — for example, premeditated murder. Taylor v. Whitley, 933 F.2d 325 (5th Cir. 1991); Harling v. United States, 460 A.2d 571 (D.C.App.1983).
The merger doctrine when applied to felony murder, Russell R. Barton, Comment, Application of the Merger Doctrine to the Felony Murder Rule in Texas: The Merger Muddle, 42 Baylor L.Rev. 535 (1990), also addresses the differentiated subject of creation of felony murder instead of dual sentences for felony murder and its constituent felony, but confusion exists and some dual sentence decisions are approved or denied in terms of merger. General principles of lesser included offense non-multiplied prosecutions are also involved. Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989); Jennifer Hoagland, Comment, Double Jeopardy and Pennsylvania’s Merger Doctrine, 62 Temple L.Rev. 663 (1989). See abo S. Jill Weinlood, Note, CRIMINAL LAW—Felony Murder in Kansas—The Prosecutor’s New Device: State v. Goodseal, 26 Kan.L.Rev. 145 (1977); Note, Consecutive Sentences in Single Prosecutions: Judicial Multiplication of Statutory Penalties, 67 Yale L.J. 916 (1958); and Charles L. Cantrell, Double Jeopardy and Multiple Punishment: An Historical and Constitutional Analysis, 24 S.Tex.L.J. 735 (1983). Cf. George C. Thomas III, A Unified Theory of Multiple Punbhment, 47 U.Pitt.L.Rev. 1 (1985).
The dysfunction in theory and double jeopardy application can be found in Kansas and New Mexico, both of which apparently reject the Blockburger thesis of precluded consecutive sentences where each offense does not have a separate element, yet applies merger to determine existence of the felony murder. State v. Lucas, 243 Kan. 462, 759 P.2d 90 (1988), aff’d 244 Kan. 193, 767 P.2d 1308 (1989); State v. Prouse, 244 Kan. 292, 767 P.2d 1308 (1989) compared to State v. Bailey, 247 Kan. 330, 799 P.2d 977 (1990), cert. denied-U.S.-, 111 S.Ct. 2022, 114 L.Ed.2d 108 (1991). See abo State v. Martinez, 95 N.M. 421, 622 P.2d 1041 (1981) and State v. Stephens, 93 N.M. 458, 601 P.2d 428 (1979) compared to State v. Pierce, 110 N.M. 76, 792 P.2d 408 (1990).
. In Loddy, 502 P.2d at 197-98, Tobin was cited with approval and further quoted 24 C.J.S. Criminal Law § 1567(5) at 434-437:
“If the several counts of the indictment on which accused stands convicted in effect charge only one offense, or charge in different ways the commission of the same offense, or charge the commission of different crimes or degrees of crime which, by reason of the fact that they are of the same character and grow out of the same transaction, are in effect parts or aspects of one offense, or where the crime charged in one count necessarily embraces or includes the crime charged in another count, or is merged in, the crime charged in another, it is erroneous for the court, on a finding of a general verdict or plea of guilty, to impose separate penalties for the several counts, whether by way of separate sentences to run successively, or a single gross sentence lumping the several penalties. In such case accused is subject only to a single penalty on all the counts constituting one entire offense * *
Other Wyoming cases providing identical perspectives include: Jerskey v. State, 546 P.2d 173 (Wyo.1976); Boyd v. State, 528 P.2d 287 (Wyo. 1974), cert. denied 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975); Jackson v. State, 522 P.2d 1286 (Wyo. 1974); and Dorador v. State, 520 P.2d 230 (Wyo. 1974). See also Howard, 762 P.2d 28.