dissenting.
The double jeopardy provisions of the United States and Wyoming Constitutions protect an individual against multiple punishments for the same criminal offense, unless the Wyoming Legislature intends otherwise. Thus, the deceptively simple question before this Court is: Did the Wyoming Legislature intend that an individual convicted of felony murder be sentenced for both felony murder and the underlying felony? Five years ago, a differently com*1364prised court answered this question in the affirmative. Birr v. State, 744 P.2d 1117 (Wyo.1987), habeas corpus denied, 894 F.2d 1160 (10th Cir.), cert. denied, 496 U.S. 940, 110 S.Ct. 3224, 110 L.Ed.2d 671 (1990). Today, the majority holds to the contrary and overrules Birr. Because I believe that the Birr court correctly ascertained the Wyoming Legislature’s intent and that the Birr decision furthers the purpose of the felony-murder statute, I dissent.
I disagree with the majority using the “enlightened” Blockburger test as though it were some talismanie formula for the divination of legislative intent. It is not! The Blockburger test is merely one tool of many which may be used in the trade of statutory construction. The majority applies the “enlightened” Blockburger test to observe that felony murder requires proof of an element which is not required in proving aggravated robbery, but not vice versa. Extrapolating upon this observation, the majority invokes the assumption that legislatures “ordinarily do[ ] not intend to punish the same offense under two different statutes,” Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), to conclude that the Wyoming Legislature did not intend that criminals convicted of felony murder be sentenced for both felony murder and the underlying felony.
I believe that the majority ignores an aspect of this case which is far more revealing of the Wyoming Legislature’s intent than is the “enlightened” Blockburger test. The aspect of which I write is the Wyoming Legislature’s reaction to the Birr decision. This Court has stated on many occasions that the Wyoming Legislature’s response to an interpretation of a statute by a co-equal branch of government is relevant to the inquiry of legislative intent. See, e.g., Town of Pine Bluffs v. State Board of Control of State of Wyoming, 647 P.2d 1365 (Wyo.1982); School Districts Nos. 2, 3, 6, 9, and 10, in County of Campbell v. Cook, 424 P.2d 751 (Wyo.1967); and Sanders v. Brown, 80 Wyo. 265, 341 P.2d 85 (1959). The Birr decision clearly held that the Wyoming Legislature did intend that criminals convicted of felony murder be sentenced for both felony murder and the underlying felony. In the five legislative sessions since Birr was decided, the Wyoming Legislature did not take any action to correct what is dubbed today as being an obviously erroneous determination of legislative intent. This fact speaks for itself.
I also believe that the Birr decision advances the purpose underlying the felony-murder statute. The majority states that the purpose of the felony-murder statute is to discourage accidental and negligent killings which occur during the commission of violent felonies. As an example of the statute’s deterrent effect, the majority posits a hypothetical situation in which a criminal’s gun accidently discharges, killing a store clerk during the course of a robbery. The majority notes that the aggregate sentence which could be imposed for the constituent crimes — aggravated robbery and manslaughter — would be forty-five years, but, because of the felony-murder statute, the defendant would be sentenced to life imprisonment or death for the same conduct.
The curious result of the majority’s decision is exposed by the facts of this case. Here, Peterson intentionally killed the store clerk during the course of robbing a Gasamat station. The aggregate sentence which could have been imposed upon Peterson for the constituent crimes — aggravated robbery and first-degree murder — would have been life imprisonment plus twenty-five years or death. However, since the prosecutor invoked the felony-murder statute, the result of today’s decision is that Peterson will receive a lesser sentence than he would have received had he been convicted of the constituent crimes. Personally, I feel that an intentional killing is more egregious than an accidental or negligent killing and that the purpose of the felony-murder statute, which I believe is to deter the commission of violent felonies, is furthered by the Birr decision.
As a final note, the majority justifies its decision in part by noting that whether to impose a sentence for an underlying felony, when the only sentencing alternatives for *1365felony murder are life imprisonment or death, is of academic interest only. The majority’s academic argument applies, however, with equal force against disturbing settled law which is consistent with the Wyoming Legislature’s intent and which furthers the purpose of the felony-murder statute.
Consequently, I dissent.