dissenting as to Part II.
I concede that under Missouri v. Hunter, 459 U.S. 359, 74 L.Ed. 2d 535 (1983), the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution does not preclude punishing this defendant for both felonious breaking or entering and felonious larceny, of which, we must assume, the breaking or entering is an essential element, so long as our legislature so intended.
I think Hunter was incorrectly decided. It is based, in my view, on a misapplication of principles formulated by the United *464States Supreme Court in earlier cases and designed to resolve double jeopardy questions other than the one presented here and in Hunter. The misapplication is understandable because as the Supreme Court itself acknowledged in Albernaz v. United States, 450 U.S. 333, 343, 67 L.Ed. 2d 275, 284 (1981), its “decisional law in the [double jeopardy] area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator.” Now a majority of our Court has, by slavishly following Hunter and misapplying some of the same precedents there relied on, determined to entangle itself in this Sargasso Sea even after being forewarned by the Court which created it and decided Hunter based upon it. Forewarned, for the majority, is not, alas, to be forearmed.
I concede, of course, that we are bound by Hunter insofar as we must decide this case under the Double Jeopardy Clause of the Fifth Amendment. We are not bound to follow Hunter and are free to follow our own precedents on the subject insofar as we base decision on the double jeopardy prohibition contained in the Law of the Land Clause in Article I, section 19 of the North Carolina Constitution. See State v. Crocker, 239 N.C. 446, 80 S.E. 2d 243 (1954) (Law of Land Clause includes prohibition against double jeopardy).
Unlike those of the United States Supreme Court, our precedents speak with one clear, unambiguous voice on the subject. The majority recognizes as much in that it finds it necessary to overrule State v. Midyette, 270 N.C. 229, 154 S.E. 2d 66 (1976), and to find “erroneous” the stated rationale for the Court’s decision in State v. Thompson, 280 N.C. 202, 185 S.E. 2d 666 (1972), in order to sustain its position.
We should in this case follow our precedents, avoid the United States Supreme Court’s Sargasso Sea, and hold that to punish both for the breaking or entering and for the larceny in this case violates the double jeopardy prohibition of Article I, section 19 of the North Carolina Constitution.
The essential fallacy in the majority opinion and the United States Supreme Court’s Hunter opinion is the failure to distinguish between two different situations which call for different applications of double jeopardy principles. The first situation is that in which a single criminal transaction amounts to the violation of *465two or more criminal statutes, neither of which violation forms an essential element of the other. The question is: Can the state convict and punish for each criminal offense committed? In this context the United States Supreme Court has concluded that it can so long as the legislature so intended. Albernaz v. United States, 450 U.S. 333, 67 L.Ed. 2d 275 (1981); Blockburger v. United States, 284 U.S. 199, 76 L.Ed. 306 (1932). This Court, without discussing the question of legislative intent, has concluded that it can. State v. Barefoot, 241 N.C. 650, 86 S.E. 2d 424 (1955); State v. Davis, 223 N.C. 54, 25 S.E. 2d 164 (1943). This was the context addressed by the language in State v. Murray, 310 N.C. 541, 547, 313 S.E. 2d 523, 528 (1984), here relied on by the majority. These cases note that determination of whether the single transaction really constitutes more than one offense or only one offense may require an examination of the various elements involved in the offenses and may ultimately rest on whether each offense has an element the other does not. But once it is established through this test that two or more different criminal offenses have been committed, albeit by only one factual transaction, the double jeopardy prohibition does not preclude punishing each different offense committed if the legislature intended that each be separately punished.
This is not the question presented in this appeal, although the majority sometimes treats the appeal as if it were. The question presented in this appeal may be put as follows: When a defendant is simultaneously convicted of two or more crimes and one of those crimes constitutes an essential element of the other so that without this elemental crime there could be no conviction of the other compound crime, does the double jeopardy prohibition preclude punishing defendant both for the compound crime and the elemental crime. Until Hunter, the United States Supreme Court cases relied on by the majority do not answer this question. Except for Hunter, these cases do not hold that this question resolves itself to one of legislative intent.
The closest case factually to the one before us is Whalen v. United States, 445 U.S. 684, 63 L.Ed. 2d 715 (1980). In Whalen defendant was convicted of first degree “felony murder” on the theory that he murdered his victim during the perpetration of a rape. He was also convicted of the rape. He was given consecutive sentences for both the first degree murder and the rape. The *466United States Supreme Court held that consecutive sentences could not be imposed for both crimes on the ground “that Congress did not authorize consecutive sentences for rape and for a killing committed in the course of the rape . . . Id. at 693, 63 L.Ed. 2d at 725, and “[t]he Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so.” Id. at 689, 63 L.Ed. 2d at 722 (emphasis supplied). Whalen does not hold, indeed it could not have held given its view of congressional intent, that had Congress intended consecutive punishments for both the rape and the murder it would have been constitutionally permissible.
As I have previously noted, Albemaz and Blockburger, and our own Murray, involved situations where one transaction resulted in defendants’ convictions of one or more crimes. In none of the cases was one of the crimes an essential element of another. The cases address the question of whether in law one or more crimes were committed and if so whether each crime could be punished separately and cumulatively. The Court looked to see whether each crime had elements not present in the others to answer the first question and to legislative intent to answer the second.
Our felony murder cases provide a perfect analogy for resolving this case and should be considered as controlling it. It has, as the majority concedes, long been the law in this jurisdiction that the state may not punish both for the felony murder and the underlying felony which constitutes an essential element of the felony murder. State v. Martin, 309 N.C. 465, 308 S.E. 2d 277 (1983); State v. Williams, 284 N.C. 67, 199 S.E. 2d 409 (1973); State v. Thompson, 280 N.C. 202, 185 S.E. 2d 666 (1972). This result has sometimes been referred to as the “merger rule,” or “merger doctrine.” State v. Silhan, 302 N.C. 223, 262-63, 275 S.E. 2d 450, 478 (1981); State v. Jeffries, 55 N.C. App. 269, 290, 285 S.E. 2d 307, 320 (1982). The true basis for the rule, however, lies in the double jeopardy prohibition.
In considering whether to permit the underlying felony of armed robbery in a capital, felony murder prosecution to be considered as an aggravating circumstance, this Court had reason to consider the application of the merger rule in concluding that the *467underlying felony, if used to convict defendant of first degree felony murder, could not also be considered as an aggravating circumstance at the sentencing phase. State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979), cert. denied, 446 U.S. 941 (1980). For a unanimous Court, Justice, now Chief Justice Branch wrote:
Although designed to prevent double jeopardy, a problem with which we are not here confronted, we think the merger rule sheds light on the question before us. Once the underlying felony has been used to obtain a conviction of first degree murder, it has become an element of that crime and may not thereafter be the basis for additional prosecution or sentence. Neither do we think the underlying felony should be submitted to the jury as an aggravating circumstance in the sentencing phase when it was the basis for, and an element of, a capital felony conviction.
Id. at 113, 251 S.E. 2d at 567-68 (emphasis supplied).
Neither do I think, as does the majority, that this Court erred in State v. Thompson, 280 N.C. 202, 185 S.E. 2d 666 (1972), when it said, in a felony murder case, that the underlying felony of felonious breaking or entering was a lesser included offense of the felony murder in the sense that it was “an essential and indispensable element in the state’s proof of murder committed in the perpetration of the felony of feloniously breaking into and entering that particular dwelling.” 280 N.C. at 215, 185 S.E. 2d at 675. This language was quoted with approval and emphasized in State v. McLaughlin, 286 N.C. 597, 213 S.E. 2d 238 (1975).
The reason, of course, that the underlying felony in a felony murder prosecution is a lesser included offense of the felony murder is because once the state has proved the felony murder it has proved all of the elements of the underlying offense and in addition the other elements necessary to prove the felony murder. The underlying felony is a lesser included offense in a felony murder prosecution in the same sense as the joyriding offense was held to be a lesser included offense of auto theft for double jeopardy purposes in Brown v. Ohio, 432 U.S. 161, 53 L.Ed. 2d 187 (1977). The Court there said:
Here the Ohio Court of Appeals has authoritatively defined the elements of the two Ohio crimes: joyriding consists of *468taking or operating a vehicle without the owner’s consent, and auto theft consists of joyriding with the intent permanently to deprive the owner of possession. App. 22. Joyriding is the lesser included offense. The prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft; the prosecutor who has established auto theft necessarily has established joyriding as well.
Id. at 167, 53 L.Ed. 2d at 195. The Court in Brown held that a defendant who had pled guilty to joyriding could not later be prosecuted for auto theft, saying:
If two offenses are the same ... for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings. Unless ‘each statute requires proof of an additional fact which the other does not’ the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment.
Id. at 166, 53 L.Ed. 2d at 194-95 (citations in original deleted). The Supreme Court then concluded that proof of auto theft necessarily proved joyriding. There were no additional elements of joyriding which were not included in the crime of auto theft. Therefore both offenses were the same, and both successive prosecutions and double punishment were prohibited by the Double Jeopardy Clause.
In State v. Williams, 295 N.C. 655, 249 S.E. 2d 709 (1978), defendant kidnapped two women, forced them at gunpoint to a deserted place where he then robbed both, shot one —causing serious injury but not death — and raped the other. He was convicted at one trial of kidnapping, rape, armed robbery, and felonious assault. One of the questions in the case was whether he could be sentenced for all crimes, the sentences to be served consecutively. The argument was made that the robbery, the rape and the assault were essential elements required to prove “aggravated” kidnapping under the kidnapping statute as it was then written. We concluded that these felonies were not elements of *469kidnapping nor were they sentence-enhancing factors. Defendant, we concluded under the statute as it was then written, could have been given the same punishment for kidnapping whether or not these other offenses had occurred, unless defendant could have proved certain mitigating factors then provided for in the statute.
Importantly in Williams this Court acknowledged as valid the principle relied on by defendant “that when a criminal offense in its entirety is an essential element of another offense a defendant may not be punished for both offenses. . . .” Id. at 659, 249 S.E. 2d at 713. The Court went on to say:
This principle is frequently applied in felony-murder cases when the underlying felony is used as an essential element of first degree murder. In such cases punishment for the murder precludes punishment also for the underlying felony. (Citations omitted.) The principle, however, is not limited to felony murder, but applies in any situation in which one criminal offense is in its entirety an essential element of another offense. State v. Midyette, 270 N.C. 229, 154 S.E. 2d 66 (1967). The basis for each application is the constitutional prohibition against double jeopardy. Amends. V and XIV, U.S. Const.; Art. I, § 19, N.C. Const. See cases cited in 4 N.C. Index 3d, Criminal Law, §§ 26-26.9.
Id., n. 3.
In Midyette two indictments were consolidated for trial. In one, No. 483, defendant was charged with the felonious assault of one W. I. Robertson by shooting him with a .22 caliber pistol. In the second case, No. 484, defendant was charged with resisting a public officer, to wit, W. I. Robertson, while in the discharge of his duty “by firing at and hitting the said officer with bullets from a .22 caliber pistol.” Defendant was convicted and sentenced on both offenses. On appeal, this Court arrested judgment in the resisting arrest case. The Court said that having been convicted of the felonious assault against Robertson, defendant “could not thereafter be lawfully indicted, convicted and sentenced a second time for that offense, or for any other offense of which it, in its entirety, is an essential element.” 270 N.C. at 233, 154 S.E. 2d at 70. The Court went on to say that the state by its allegations in the indictments had made the assault case an essential element of the resisting arrest case, saying:
*470By the allegations it elects to make in an indictment, the state may make one offense an essential element of another, though it is not inherently so, as where an indictment for murder charges that the murder was committed in the perpetration of a robbery. In such a case, a showing that the defendant has been previously convicted, or acquitted, of the robbery so charged will bar his prosecution under the murder indictment. State v. Bell, 205 N.C. 225, 170 S.E. 2d 50.
Id. Finally, the Court noted that under the indictments by which defendant was tried
the State could not convict the defendant of resistance of a public officer in the performance of his duty without proving the defendant guilty of the exact offense [the felonious assault] for which he has been convicted and sentenced [in the assault case].
Id. at 234, 154 S.E. 2d at 70.
The above authorities of this Court should control this case. Here, the breaking or entering was an essential element of the felonious larceny. Without it, defendant could not have been convicted of felonious larceny, assuming, as we must, that this was the theory of felonious larceny upon which the jury relied. Consequently, the state may not punish defendant for both the felonious larceny and the felonious breaking or entering.
To me, it simply makes no sense to say that the constitutional double jeopardy prohibition provides no check on legislative but only on judicial power. If, as the United States Supreme Court has said many times, and as the majority here acknowledges, the double jeopardy prohibition means that the state cannot punish more than once for a single offense, this must mean that the legislature cannot authorize courts to punish more than once for a single offense. I would so interpret this state’s constitution, notwithstanding what the United States Supreme Court has held with regard to the federal constitution.
The expression that the double jeopardy prohibition applies more to the courts than it does to the legislature arises from the fact that only courts punish for crime. The legislature defines crimes and sets punishments, but it does not punish. Since only *471courts punish, the prohibition against double punishment must of necessity be directed more to courts than to the legislature. The expression means that courts must not apply legislatively prescribed punishments so as, in effect, to punish more than once for a single offense. It does not mean that the legislature is free to authorize the courts to punish more than once for a single offense.
Under our precedents when one crime, the elemental crime, is used as an essential element to prove another compound crime, which could not be proved without this element, and defendant is convicted simultaneously of both the compound crime and the elemental crime, both convictions cannot stand and be separately punished. To do so, this Court has consistently held, is to convict and punish for the elemental crime twice —a violation of the double jeopardy prohibition. These holdings seem eminently sound to me.
Even if the majority’s position that the double jeopardy question resolves itself into one of legislative intent is adopted, I find no evidence in the statutes of any legislative intent to authorize punishment for both felonious larceny and felonious breaking when the latter constitutes an essential element of the former. In Missouri v. Hunter, 459 U.S. 359, 74 L.Ed. 2d 535 (1983), upon which the majority primarily relies, the Missouri legislature had expressly authorized punishment for the primary felony [“armed criminal action”] and additional punishment for the elemental felony [“first degree robbery”]. I do not think we should, as the majority does, imply from the statutory history of the larceny and breaking statues a legislative intent to authorize punishment for the felonious larceny and in addition punishment for the felonious breaking which forms an essential element of the larceny. The breaking and larceny statutes were passed, or amended, before Missouri v. Hunter was decided when decisions of both this Court and the United States Supreme Court provided no support for the notion that the legislature could authorize punishment for a primary offense and additional punishment for an offense forming an essential element thereof. It seems clear to me that when the larceny and breaking statutes were passed and amended, our legislature would not have thought it had the power to authorize punishment for both felonious larceny and felonious breaking when the latter was an essential element of the former. Not *472thinking it had the power, it would not have intended to exercise it.
The majority argues that this Court has “approved multiple punishments” for breaking or entering when this crime is an essential element of felonious larceny, i.e., that punishment may be imposed both for the breaking offense and the larceny offense when defendant is tried and convicted of both at the same trial and the former is an essential element of the latter. It then argues that since the legislature has acquiesced in this Court’s “approval,” it must intend the result we approved.
The majority relies solely on State v. Morgan, 265 N.C. 597, 144 S.E. 2d 633 (1965), for the proposition that our Court has heretofore approved the result it reaches today. In Morgan defendant was indicted in one count of the bill for felonious breaking or entering a certain storehouse and in another count with the larceny of goods of less than $200 in value. He entered pleas of guilty to both counts. He was sentenced in the breaking case to not less than two nor more than four years and received a similar sentence in the larceny case, the latter to begin at the expiration of the former. Defendant’s sole contention on appeal was that the sentences imposed were excessive and harsh and “unwarranted by the true spirit of the statute.” This Court, in a per curiam opinion, affirmed the judgments, saying simply:
Under the provisions of G.S. 14-54, the crime charged in the first count, to which defendant pleaded guilty, is punishable by a sentence in prison of four months to ten years.
The crime charged in the second count in the bill of indictment, to wit, larceny of property from a storehouse, with felonious intent, et cetera, is a felony as at common law, without regard to the value of the property stolen. S. v. Cooper, 256 N.C. 372, 124 S.E. 2d 91.
The court below could have imposed a maximum sentence of ten years on each count.
There is no merit in defendant’s contention, and the sentences imposed by the court below will be upheld.
Id. at 598, 144 S.E. 2d at 633.
*473Morgan is too slender a reed to support the majority’s legislative-acquiescence-in-judicial-approval theory. First, there was no contention in Morgan that the sentences imposed violated the double jeopardy prohibition. Second, defendant entered pleas of guilty to the crimes charged. It was not, therefore, incumbent upon the Court to determine upon which theory defendant might have been convicted of felonious larceny had he not pled guilty.
A defendant, nothing else appearing, pleads guilty to a charge contained in a bill of indictment not to a particular legal theory by which that charge may be proved. His plea waives his right to put the state to its proof. It obviates the necessity for the state’s invocation of some particular legal theory upon which to convict defendant. The question of which theory, if there is more than one available, upon which defendant might be guilty does not arise. His plea of guilty means, nothing else appearing, that he is guilty upon any and all theories available to the state.
State v. Silhan, 302 N.C. 223, 263, 275 S.E. 2d 450, 478 (1981). Finally, the result in Morgan, insofar as it stood for the proposition that the larceny count in the bill of indictment was sufficient to charge a felony, was overruled in State v. Jones, 275 N.C. 432, 168 S.E. 2d 380 (1969).
Justices Martin and Frye join in this dissenting opinion.