dissenting.
In State v. Creech, 105 Idaho 362, 670 P.2d 463 (petition for rehearing filed May 23, 1983), I expressed a strong concern with a majority opinion which refused to discuss the view of Justice Huntley who in *909dissent pointed out that our Idaho Constitution guarantees that no person shall be executed except on direction of a jury. In today’s opinion the same majority, now deigning to discuss that issue, and completely ignoring that written by Justice Huntley and by myself in Creech, rationalizes around the research which we there presented by noting the absurdity that it was the judge who was the sentencer where the jury convicted an accused of second degree murder — but at the same time facetiously conceding “that the jury’s decision had an impact on the sentence which was imposed.” This is pure sophistry at its best. The jury, if it convicted the accused of first degree murder thereby sent the accused to the gallows. That is an impact indeed. As stated in my Creech dissent:
“In People v. Walters, 1 Idaho 271 (1869), the defendant was charged with murder in the first degree. The jury, knowing that a first degree conviction required execution, recommended the mercy of the court.
“ ‘We the jurors in the above entitled cause find the Deft guilty as charged in the Indictment and recommend him to the mercy of the court.
L. Jackson Foreman of Jury’ ”
It cannot in good conscience be argued that from 1869 until Furman it was not the jury which made the life or death decision. Any lingering doubt as to the intention of the legislature should be dispelled by simply observing that following the 1911 Amendment to I.C. § 18-40041 the courts of Idaho, including this Supreme Court, continued to acknowledge the jury’s function as sentencer, as was carefully documented in my dissenting opinion in Creech wherein were set forth verbatim the jury verdicts in [State v.] Hoagland [39 Idaho 405, 228 P. 314 (1924)], [State v.] Reding, [52 Idaho 260, 13 P.2d 253 (1932)], [State v.] VanVlack, [57 Idaho 316, 65 P.2d 736 (1936) ], [State v.] Golden, [67 Idaho 497, 186 P.2d 485 (1947)], Owen, Clokey, [State v.] Gonzales [92 Idaho 152, 438 P.2d 897 (1968)], and Buckley — which latter was the last first degree murder to be reviewed in this Court under the law as it existed prior to Furman’s advent.
Regrettably one must conclude that the author of today’s opinion for the Court has yet to read my Creech dissent. Nothing in today’s majority opinion supports its bald conclusion “that Art. 1, section 7, of the Idaho Constitution does not require the participation of a jury in the sentencing process in a capital case.” The best that can be said for the majority opinion is that it does recognize that where the jury convicts of second degree murder, “no death penalty could be imposed,” but this is said to be an incidental effect. Some may consider it a deplorable state of affairs that in a matter of such grave moment the majority does not even attempt to comment upon the proceedings of the Constitutional Convention and the remarks of Mr. Heyburn, Mr. Claggett, and Mr. Ainslie in the drafting of Art. 1, section 7 — -which was thereafter adopted by the people. Instead the majority digresses into the wholly irrelevant field of the judge’s discretion where the jury’s verdict was to convict of murder in the second degree.
With equal facility the majority facilely avoids discussing the teaching of State v. Miles, 43 Idaho 46, 248 P. 442 (1926), or attempting to explain away the words and wisdom of Justice Ailshie in In re Prout, 12 Idaho 494, 86 P. 275 (1906). Instead the majority opinion speaks of the sentencing discretion in, of all things, burglary cases. It gives us the remarkable pronouncement that the jury’s determination of whether the defendant is guilty of first or second degree murder, or perhaps the included of*910fense of petit larceny, “will have a substantial impact upon the sentence ...,” and that such “does not mean that under our Constitution a defendant is entitled to have a jury impose the sentence.” No one has ever contended that it did in other than murder cases; the statement of the majority only serves to show no knowledge of the documentation of the Creech dissenting opinions, at the best, or, at the worst, a complete disregard for the irrefutable teaching of that documentation. In an ordinary case this would be thought regrettable. In a case where we review the imposition of a death sentence, it may well be regarded as unpardonable. .
Most disturbing is the knowledge that prior to Furman the capital death sentencing procedures in Idaho were within a small percentage of being those which the Wood-son Court would later prescribe. Basically all that was needed, prior to Furman, was a bifurcation so that a person accused of first degree murder would not be prejudiced by attempting at a single trial to prove both that he did not deserve the death penalty and that he was not guilty of first degree murder — a Catch 22 situation if ever there was one. For example, see State v. Clokey, 83 Idaho 322, 364 P.2d 159 (1961), and State v. Owen, 73 Idaho 394, 253 P.2d 203 (1953), both discussed in my Creech dissent. Those cases, and others, make it clear that this Court earlier, and absent legislative involvement, recognized that the trial courts should properly instruct the jury in a capital case to the end that the jury did not arbitrarily or capriciously invoke the penalty of death.
Following Woodson the legislature set guidelines to follow, and, unfortunately believing (as the Statement of Purpose to the proposed 1977 amendment shows, set out in the Creech dissenting opinion of Justice Huntley) that the Supreme Court of the United States had barred juries from continuing as sentencing authorities, made those guidelines for the benefit of judges. Nonetheless, the guidelines are there, and all that is required now, primarily, is for this Court to legitimize the 1977 Death Penalty Act by declaring that a sentence of death will constitutionally be imposed as the judgment of twelve jurors — in whose selection the defendant played a large part — instead of being imposed by a single individual who holds the office of district judge. Alternatively, if this Court fails to follow that route, which simply encompasses a holding that wherever in- I.C. § 19-2515 the word “court” appears, “court” shall be construed to mean the jury and not the judge.2 To do so would comport with an earlier court’s understanding that “[i]n all cases triable by a jury, the court is made up of the judge and the jury.” State v. Ramirez, 34 Idaho 623, 203 P. 279 (1921) (not to be confused with State v. Ramirez, 33 Idaho 803, 199 P. 376 (1921)). As to the problem which I just mentioned in footnote 2, the Ramirez Court also noted that “[t]he words ‘judge’ and ‘court’ are frequently used as convertible terms .... ” 34 Idaho at 634, 203 P. 279. This Court today would do a service to its people were it to thus put a saving gloss on the 1977 legislation. My own view, however, is that this Court will not do so — as evidenced by the illogical reasoning of the three-member majority which brings it to the conclusion that our Idaho Constitution does not give a capital defendant the right to have his fate decided by a jury. In the long-run it would be preferable if the legislature attended to the matter.3 Meanwhile, one may be certain, a bare majority of this Court will continue to uphold judge-imposed death sentences.
Another defect in the present scheme for capital sentencing is found in I.C. § 19-2827, mentioned in my separate opinion in State v. Osborn, 104 Idaho 809, 663 P.2d *9111111 (1983), wherein I pointed out, as applicable here in reviewing § 19-2827:
“[T]here is a defect in I.C. § 19-2827(g) wherein and whereunder it is only required that ‘The supreme court shall collect and preserve the records of all cases in which the penalty of death was imposed from and including the year 1975.’ “Collecting such records is not a difficult task, because of the automatic review provisions of I.C. § 19-2827(a). Preservation is also no problem, because the Court does keep one copy of all appellate review proceedings. My own conclusion is that the drafter had in mind a separate collection of death penalty bindings and conclusions in all cases, readily available on request to district courts, prosecutors, and defense counsel. Such a collection, which we do not presently maintain as such, will indeed be a helpful too), but I see it as virtually meaningless unless the collection includes all sentencing hearings held following a conviction of first degree murder. Only in this manner will this Court in making its review be able to determine ‘whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.’ I.C. § 19-2827(c)(3).2 Only in this manner will sentencing authorities have established guidelines as to the state-wide norm in imposing the penalty for murder in the first degree. Only in this manner can prosecuting attorneys and defense attorneys be adequately informed as to the pulse of Idaho’s people— from among whom come the jurors who decide guilt or innocence, and who constitutionally should even now be determining the sentence to be imposed. When we have provided for a proper collection, and when we have required jury sentencing — both of which are within the Court’s authority to provide for — thus putting a saving gloss upon the entire procedure— the entire citizenry may profit from a sentencing procedure which is constitutionally sound.
2 The tenor of the statute is such that I do not hesitate to express a belief that the drafter thereof intended the collection to include all dispositions of first degree murder convictions.”
The majority in today’s opinion properly states that § 19-2827 requires of our review that we determine whether “the sentence imposed in this case is excessive or disproportionate to sentence imposed in similar cases.” This is as it should be. But, because of the defect in the statute above described, the majority wholly ignores the facts and circumstances in the extremely similar case of State v. Major, 104 Idaho 4, 665 P.2d 703 (1983). Major too involved a first degree murder conviction, and there the weapon was a knife only — which is considered by many more brutal and sadistic than being shot to death. The district judge in Major made the findings in aggravation and mitigation which are statutorily required:
“5. Aggravation The court finds, from the evidence, that a heinous, atrocious attack occurred upon a human being. As the state proved at the trial, and reiterated at the hearing, the killing of Tony Mesa involved injuries inflicted prior to his death, then the death injury, and brutal aggravation of the death wound. The Court finds no possible justification for the nature of the attack, and finds no evidence that the victim was armed or able to defend himself in any way.
“The Court further finds that the accused has a criminal record which extends back to 1962, and involves at least seventeen narcotics offenses. The Court further finds that, within ten years prior to this offense, the accused was convicted of a felony, second degree burglary. The defendant himself admitted commission of a felony, and the pre-sentence report shows the conviction occurred in June, 1975, in San Bernardino County, California. The Court also finds that the accused has twice been convicted of some sort of assault on another person.
6. Statutory Aggravating Circumstances The court finds beyond a reasonable doubt that two of the statutory circumstances set forth in Idaho Code, § 19-*9122515 exist. The murder was, in the opinion of the court, ‘especially heinous, atrocious or cruel, manifesting exceptional depravity.’ The testimony of the autopsy pathologist graphically depicted the brutal, destructive knife attacks which were inflicted upon the victim. The nature of the wounds made it apparent that the attack virtually amounted to a series of torturing wounds which finally culminated in the massive cutting of the victim’s throat. The evidence made it clear that after inflicting the throat wound, the assailant then made ripping motions with the knife which were simply mutilating in nature. There was enough bleeding from the early wounds to make it clear that the victim was seriously injured and no doubt in great pain before the final, brutal attack was made. The nature of the attack, taken in stages as it was, also clearly, and beyond a reasonable doubt, shows that the defendant, at the time of the attack, ‘exhibited utter disregard for human life.’ The Court therefore finds, that the circumstances set forth in Idaho Code 19-2515(f)(5) and (6) have been established beyond a reasonable doubt.” R., pp. 150-51.
Major is exactly one of the “similar cases” referred to in I.C. § 19-2827(c)(3), and yet the majority of the Court in making their review does not consider it. How, one must ask, can a reviewing court determine whether a sentence of death “is disproportionate to the penalty imposed in similar cases” if it does not collect, preserve and refer to all capital cases? The majority apparently sees the matter in a different light. The statute, however, is clear that “the penalty involved in similar cases” may be the death penalty, or it may be a life sentence. Again, no argument to the contrary can in good conscience be made. Nor should it. Should the members of this Court, regardless of how § 19-2817 is read, shut their eyes to the penalty that the .stabbing, slashing murderer in Major received? It was not a sentence of death:
“7. Why The Death Penalty Is Not Being Imposed This Court is of the opinion that the statutes providing for imposition of the death penalty, and for imposition of the death penalty by lethal injection are constitutional, and are necessary in our society. And, even though the Court finds the existence of two of the statutory aggravating circumstances in this case, the death penalty is not here being imposed. The line which must be crossed before the extreme penalty is imposed is a fine one, and ultimately the decision which the Court must make is a very subjective one. Here, the Court has determined that the victim was not an innocent member of society whose death grew out of no criminal conduct on his part. The court truly believes that the victim was a drug supplier who for some reason had cut off the supply to the accused. During the negotiations to resume that supply line, something went wrong, and the violence of the drug subculture erupted. Every person who lives in that sub-culture risks the same violent end which befell the victim here. The Court believes that this accused would again repeat his actions if confronted with the same set of circumstances, and thus is a danger to other human beings. But the Court also believes that the danger to innocent members of society can be avoided by incarcerating the defendant for the rest of his life. And, the sentence which the Court imposes today will accomplish such incarceration if allowed to run its proper length.
“THEREFORE the death penalty should not be imposed on the defendant for the capital offense of which he was convicted.”
R., p. 152.
This is not any criticism of the trial court’s conclusion in Major. Nor is there intended any criticism of the trial court’s conclusion in Lacey Sivak’s case. Nor is it to point out that the two cases standing side by side are difficult of reconciliation. It is to point out, as I intimated in comparing LePage with Osborn, as I did in Osborn II, that this Court, not just a minority thereof, needs to do its part in completing the death sentencing procedures so as to achieve just and *913impartial death sentences which conform with notions of constitutionality.
There is, of course, yet another first degree murder case which bears even a stronger similarity to Sivak than Major. That case is State v. Bainbridge, No. 14544. It is inconceivable that the Court today reviews the death penalty imposed upon Sivak without any consideration of the penalty imposed upon Bainbridge. The majority opinion, while it gives mention of Sivak’s co-defendant, Bainbridge, in connection with the trial court’s § 19-2515 findings of aggravating and mitigating factors, Part II B of the majority opinion, wholly and, perhaps deliberately, avoids any mention of the penalty meted out to Bainbridge or of the judge’s § 19-2515 findings in Bainbridge. Keeping in mind that the district judge who presided at Bainbridge’s trial and at his sentencing was not the same district judge who presided at Sivak’s trial (a point to which I will later return, time permitting), and firmly convinced that one sentence can not be reviewed without consideration of the other, following is the disposition made at Bainbridge’s sentencing:
“The above defendant having been found guilty by a jury of the criminal offense of First Degree Murder which under the law authorizes the imposition of the death penalty; and the court having ordered a presentence investigation of the defendant and thereafter held a sentencing hearing for the purpose of hearing all relevant evidence and argument of counsel in aggravation and mitigation of the offense;
NOW THEREFORE the court hereby makes the following findings:
1. Conviction. ' That the defendant while represented by court appointed counsel was found guilty of the offense of First Degree Murder by jury verdict.
2. Presentence Report. — That a presentence report was prepared by order of the court and a copy delivered to the defendant or his counsel at least seven (7) days prior to the sentencing hearing pursuant to section 19-2515, Idaho Code, and the Idaho Criminal Rules.
3. Sentencing Hearing. — That a sentencing hearing was held on March 5, 1982, pursuant to notice to counsel for the defendant; and that at said hearing, in the presence of the defendant, the court heard relevant evidence in aggravation and mitigation of the offense and arguments of counsel.
4. Facts and argument found in mitigation.
(a) Defendant has no previous conviction for the crime of murder, or any crime of violence. His prior offenses are property related.
(b) Defendant has demonstrated a propensity to being manipulated and used by other criminals; and although he participated in these crimes, he would be unlikely to initiate or perpetrate such crimes on his own.
(c) Although he had the opportunity and the encouragement of the co-defendant to do so, defendant did not himself inflict any death threatening wounds on the victim.
5. Facts and Argument Found in Aggravation.
(a) The defendant Bainbridge was in agreement with the co-defendant Sivak relative to the purpose and intent of the crimes of robbery and murder as committed here.
(b) The defendant, along with his co-defendant, acted in utter disregard of human life, knowing the victim Dixie Wilson would have to die to prevent her identification of the persons who robbed her.
(c) Such victim was murdered in an extremely cruel, atrocious and heinous manner, manifesting exceptional depravity; and this defendant, by his willing presence, and participation in the robbery, aided, abetted and encouraged the commission of the murder; and made no effort to discourage or dissuade such co-defendant in the means or manner of its execution.
(d) Although only one person was murdered, the circumstances attending such murder created a threat to the lives of *914others, including other employees of Baird Oil Company, customers of the station robbed, and other potential witnesses of the robbery who might otherwise happen to be in its vicinity.
(e) Defendant has been previously convicted of two felony crimes.
6. Statutory Aggravating Circumstances Found Under Section 19~2515(f), Idaho Code.
(a) The defendant knowingly created a great risk of death to many persons, for the reasons explained in paragraph 5(a), (b)and (d) above.
(b) The murder was especially heinous, atrocious and cruel, manifesting exceptional depravity, as discussed in paragraph 5(c) above.
(c) By circumstances surrounding the commission of the robbery and murder here, the defendant exhibited utter disregard for human life, as discussed in paragraph 5(c) above.
(d) The murder was one defined as murder of the first degree by 18 — 4008(d), Idaho Code, and was accomplished by the specific intent to cause the death of a human being as discussed in paragraph 5(a) above.
7. Reasons why death penalty was not imposed.
I find that the mitigating circumstances, particularly that defendant did not himself deliver any death threatening blows to the victim, outweigh the gravity of the aggravating circumstances here so as to make unjust the imposition of the death penalty on this defendant.
Conclusion
That the death penalty should not be imposed on the defendant for the capital offense of which he was convicted.”
It is difficult, if not impossible, to reconcile the two sentences. One murderer dies; the other lives. This is a classic case of the disparity in sentencing which produced Fur-man and in turn led to the second series of cases four years later wherein the Supreme Court declared that Furman had been misunderstood, while Idaho in the interim destroyed death penalty sentencing procedures which would today be entirely valid according to my own reading of the “threshold theory” which the Supreme Court now retreats to in Zant v. Stephens, -U.S.-, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). I am not critical of Justice Stevens’ opinion — which was expected. At the same time I agree with the view of Justice Marshall that “the States may as well be permitted to re-enact the statutes that were on the books before Furman." -U.S. at-, 103 S.Ct. at 2760. For, as I have stated and written even prior to receiving Zant, Idaho’s procedures in capital sentencing did not lead to arbitrary and capricious imposition of death sentences. Well instructed juries would hear evidence offered in mitigation and in aggravation, and would decide between life or death. Bifurcation of the guilt phase from the penalty phase would serve to avoid undue prejudice to a defendant charged with first degree murder.
In Godfrey v. Georgia, 446 U.S. 420, 427, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980), the Supreme Court reaffirmed that “the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious fashion,” and at 428, 100 S.Ct. at 1764, “ ‘if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.’ ”
Constitutionality is not merely adhering to that which is spelled out in the Constitution, Art. 1, section 7, but includes notions of fair trial and due process. This brings me to again join Justice Huntley in decrying, as we did in Creech, the wholesale use of a presentence investigator’s report. Nothing is to be gained by repeating that which was written in dissent in Creech. It will, however, lift the spirits of those who believe in a fair trial and due process to be told that in Major the district judge, although he obtained and delivered to defense counsel a pre-sentence report, at the sen*915tencmg hearing, “heard relevant evidence in aggravation and mitigation of the offense and arguments of counsel.” There is contained in the Major findings nothing to intimate a belief that a trial judge is at liberty to use a pre-sentence report as admissible evidence in reaching the determination that a convicted defendant will suffer death. This, too, may pass if that district judge, and all district judges, abide by the declaration of today’s majority that there was no wrong in giving consideration to an ex parte interview of Sivak’s accomplice — which was included in the presentence report, and by the majority is said to support finding 5(a).
It may be that I do not fully understand what is meant by “the arbitrary and capricious infliction of the death penalty.” But, if I have not seen it exemplified in comparing the penalty Sivak may pay to the penalty Bainbridge will pay, then for certain I do not know what the phrase means.
Two men, Sivak and Bainbridge, were found guilty of first degree murder which was committed in the course of a planned robbery of a gas station attendant who was acquainted with both and who could have identified both individuals. The attendant, a woman but a few years older than the defendants, was stabbed twenty times and shot three times — a brutal murder if ever there was one. The two were jointly charged, as they should have been, given a preliminary hearing, and held to answer. A single information was filed charging them jointly with armed robbery, premeditated murder, and murder in committing a felony of robbery, as they should have been charged. Neither made a motion for separate trial, apparently being unable to show the prejudice required by our case law, and they should have been tried together.4 But they were not so tried. One defendant, Bainbridge, filed an affidavit of disqualification against Judge Newhouse, who thereupon disqualified himself as to Bainbridge only, for which there may or may not be precedent in some other jurisdiction. In any event, Judge Newhouse assigned Bainbridge’s trial to Judge Rowett. In that strange manner the co-defendants were not tried together as they should have been for the crimes the two of them committed, but the results of the guilt trials came out the same, as both were convicted of first degree murder. There is little doubt in my mind, after reviewing the facts and circumstances of the crimes, that had they been tried jointly and had a jury been the sentencer both would have suffered the same fate. But they were not tried together for their jointly committed crimes as they should have been, and a jury was not the sentencer as should have been the case. As it stands now, one dies and one lives. If this is not disparate sentencing, then I do not expect to ever see it.
The two co-defendants were not only bungling criminals and inept, and thus brutal murderers, but also not loyal to each other. Sivak, who testified at his trial, claimed that Bainbridge did all of the robbing and murdering while he, Sivak, was merely in the company of Bainbridge at a poor time. Bainbridge, who did not testify at his trial, gave taped statements to the investigating officers which, on his turn to talk, blamed the entire criminal activity on Sivak, Bainbridge by misadventure merely happening to be with him at the wrong time and place, as it turned out. There were no other witnesses to the crime of murder than these two defendants. The two different juries convicted both of first degree murder and robbery, Sivak testifying to his innocence, Bainbridge not taking the stand. Neither testified at the other’s trial. Notwithstanding like jury verdicts the district judges involved imposed the drastically different sentences for the same crime of murder. As acknowledged in the majority opinion in Part II B, Judge New-house in Sivak’s case made a § 19-2515 finding that “[t]he defendant dominates his *916co-defendant and is primarily responsible for all that occurred.” The majority, notwithstanding the provisions of I.C. § 19-2827, makes no mention of the penalty imposed in Bainbridge, and strangely does not mention the complementing findings of Judge Rowett in Bainbridge’s case that “[although he had the opportunity and the encouragement of the co-defendant to do so, defendant did not himself inflict any death threatening wounds on the victim,” and “that defendant did not himself deliver any death threatening blows to the victim
Now, a large difficulty with these two cases and the disparity in penalties imposed, is an inability to see how it would make any genuine difference which of the two defendants delivered the more telling blows, knife wounds, or shots against and into their helpless victim. The cold inescapable fact is that they murdered her, and that the two district judges, neither of whom ever heard Bainbridge testify as to the circumstances of the crime, and only one who heard Sivak testify, could both to a degree exonerate Bainbridge at Sivak’s fatal expense is regrettably to my mind unacceptable. Moreover, it highlights the bizarre results of having two separate trials where there should have been a single trial, and drives home the importance of adhering to jury death sentencing as is a defendant’s right under the Idaho Constitution.
As briefly mentioned in the majority opinion, Part II C, “[t]he jury ... acquitted appellant [Sivak] of Count II .... ”
As mentioned both defendants had been charged jointly. On the morning of Sivak’s trial, the prosecutor filed an amended information five minutes before court convened. This amended information named Sivak as the only defendant. The four counts remained the same except that it deleted any mention of Bainbridge. The amended information was read to the jury:
“THE CLERK: (Reading.) In the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Ada, Amended Information. The State of Idaho, plaintiff, versus Lacey M. Sivak, defendant. Jim C. Harris, prosecuting attorney in and for the County of Ada, State of Idaho, who in the name and by the authority of said State prosecutes in its behalf in proper person, comes now into said District Court of the County of Ada and gives the Court to understand and be informed that Lacey M. Sivak is accused by this information of the crime of Count 1, robbery, felony, Idaho Code 18-6501; Count 2, murder in the first degree, felony, Idaho Code 18-4001, 03(A); Count 3, murder in the first degree, felony, Idaho Code 18-4001, 03(D); and Count 4, possession of a firearm during the commission of a crime, felony, Idaho Code 19-2520, which said crimes were committed as follows to wit:
“Count 1, that the said defendant, Lacey Sivak, on or about the 6th day of April, 1981 in the county of Ada, State of Idaho, did feloniously and by means of apparent force and fear take from the immediate presence of Dixie Wilson, an employee of the Phillips 66 gas station, certain personal property, to wit, cash money, U.S. currency, the property of the Baird Oil Company which was accomplished against the will of the said Dixie Wilson, and that the defendant pointed a gun at the said Dixie Wilson, then shot and stabbed the said Dixie Wilson to death, and taking said cash money from the said Phillips 66 gas station.
“Count 2, that the said defendant, Lacey M. Sivak, on or about the 6th day of April, 1981 in the County of Ada, State of Idaho, did willfully, unlawfully, deliberately with premeditation and with malice aforethought murder one Dixie Wilson, a human being, by shooting and stabbing the said Dixie Wilson in the head and torso thereby mortally wounding the said Dixie Wilson from which she sickened and died in the County of Ada, State of Idaho, on the 6th day of April, 1981.
“Count 3, that the said defendant, Lacey M. Sivak, on or about the 6th day of April, 1981 in the County of Ada, State of Idaho, did, in the perpetration of a robbery, a felony, kill one Dixie Wilson, a *917human being, by shooting and stabbing the said Dixie Wilson in the head and torso thereby mortally wounding the said Dixie Wilson from which she sickened and died in the County of Ada, State of Idaho, on the 6th day of April, 1981.
“Count 4, that the said defendant, Lacey M. Sivak, on or about the 6th day of April, 1981 in the County of Ada, State of Idaho, did carry and use a firearm, to wit, a .22 caliber revolver in the commission of the crimes alleged in Counts 1, 2, or 3 above, all of which is contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the State of Idaho.
“Jim C. Harris, Ada County prosecuting attorney. (End reading.)”
Sivak testified that it was Bainbridge who was the actual murderer. The jury while deliberating sent this note to the court:
“If we convict him of robbery and agree that a’ murder took place by one or both of the two men do we HAVE to convict him of 1st degree murder on count III, or can we convict him of second degree murder?”
R., Supp. Volume, p. 26.
and thereafter returned verdicts which found Sivak not guilty as charged in count II, but guilty as charged in counts I, III and IV.
Following that verdict, the prosecutor amended the information in Bainbridge’s case to two counts only, Robbery, Count I, and murder in the commission of a felony, Count II. Thus, the prosecutor for reasons of his own, not disclosed on the record, did not give the jury any opportunity to pass upon Bainbridge’s guilt on the charge of premeditated murder. Sivak had been acquitted of that charge, apparently because the jury believed his testimony. The judge, however, at sentencing on “a different range of information” nevertheless held him guilty of being the actual murderer. In my view this is not a tolerable result, something that could not have happened in Idaho in pre-Furman times, and should not happen today even with the present system of sentencing. If a court can do as was here done, the legislature might as well abolish the jury function entirely — in which effort it might find some support on this Court.
For reasons stated by Justice Huntley and myself in our Creech opinions, which have been herein reaffirmed, I vehemently dissent from Part II C of the majority opinion which announces and embraces the theory of “different ranges of information.” This novel doctrine, said to be based upon Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), opens the doors to anything that a prosecutor can persuade a presentence investigator to incorporate into his report. Here, in Sivak’s case, the majority with blatant candor approves of the “in-depth interview” of Sivak’s accomplice and its inclusion in the report. This “in-depth interview” of Bainbridge, who had not yet been tried at the time Sivak was being sentenced, was not an interview but a taped police and prosecutor’s interrogation of Bainbridge just three days after the murder. This interrogation occurred while Bainbridge was in custody, having been interrogated the evening before by Mr. Pfeiffer and Mr. Killeen until about 8:25 p.m. at which time he was arrested, given his Miranda rights and booked into the Ada County Jail. Presentence Report, pp. 9-10, Police Report.
The “in-depth interview” of Bainbridge found in the presentence report took place on April 9th and was conducted by Mr. Vaughn Killeen, Mr. Dee Pfeiffer from the Ada County Prosecutor’s Office, John Dutcher, deputy prosecutor for Ada County, and Officer Collins of the Garden City Police Department. The transcript of the tape is 75 pages long. No purpose would be served by setting it out, other than to demonstrate the skills of the interrogators. It suffices to say that Bainbridge did, as might be expected, attempt to exonerate himself from both the robbery and the mur*918der, and fix all blame on Sivak.5 In the same presentence report is a four-page unsigned and uninitialed document entitled DEFENDANT’S VERSION, following which is the following direction and admonition:
“Use this page to tell in your own words what happened before, during and after the crime. Include how you felt at the time, if you had been drinking or using any drugs, and any other factors that may have caused you to commit the crime.
“This section is VERY IMPORTANT as it will be included in the report to give the Judge and the court an opportunity to understand your side.”
Following, then, is that which presumably is Sivak’s post-conviction account of what transpired at the murder scene — appearing to be consistent with his testimony, and just as equally self-serving as Bainbridge’s unsworn answers to police questioning. . How a district judge could divine from the two sources of evidence, to wit, the sworn and unsworn statements of Sivak as against the unsworn statements of Bainbridge, who was telling the truth, if either, is beyond my powers of comprehension. As I have said, the two should have been tried at one time, and a jury should have decided their fate. I find it intolerable that for the same brutal murder which juries have found were committed by both, our system of criminal justice results in vastly differing penalties for the two offenders.
I am also greatly troubled by some of the testimony that was offered and accepted at the “live” portion of Sivak’s sentencing hearing. In particular, there was little reason or justification for the prosecutor to put on the stand a Mr. Frank Sattler. His testimony, in my view, transgresses beyond that which a sentencing jury, or judge, should hear — having nothing to do with the circumstances of the crime, or the character of the defendant.6 If any one private eiti*919zen can be allowed to advise the sentencer to impose the death penalty, then why not fifty such witnesses? Or five hundred, or the entire community? And, here, is it not to be legitimately presumed that the prosecutor called this particular witness knowing or believing that the witness could and would be the deciding factor when the judge made his determination. Who is to say it was not the swinging factor?
And, was it proper to place the victim’s husband, Harry Wilson7 on the stand and *920beseech of the judge the death penalty? I believe that it was totally wrong, and here again may have been the single precipitating factor which tipped the scales. Did Harry Wilson know, any better than the judge, who it was, Bainbridge or Sivak, who was the sole heartless murderer? Or, whether it was both who struck, stabbed, and shot her to death. I am at a loss to see from this record how Harry Wilson could know that. He would learn eventually, but not then, that a second jury at a later trial would also convict Bainbridge of that same murder — but Bainbridge at the time that the prosecutor placed Harry Wilson on the stand was yet presumably innocent. Whether Harry Wilson would later ask Bainbridge’s judge to execute him, too, is another question, as is so with whether the prosecutor would exercise his discretion to call Harry Wilson and Mr. Sattler to the stand in order to urge the death penalty.
Although it is again disturbing to peruse a presentence report which again, as in Creech includes accounts of trial proceedings, there is not present here, as there was in Creech, an editorial encouraging the death penalty. This Court, which has assumed the right to dictate that which shall be included in presentence reports, see I.C.R. 33, Idaho Judge’s Sentencing Manual part V, pp. 5.1-1 to 5.2-32, should take proper steps to keep out extraneous matter, and should reconsider State v. Moore, 93 Idaho 14, 454 P.2d 51 (1969), with a concerned view to the remarks of Justice Huntley in Part II of his Creech opinion.
In State v. Moore, a non-capital case, where a defendant was seeking probation, this Court considered the extent to which it would allow the use of hearsay found included in presentence reports, and held in favor of such use on the basis that “even though it would not be admissible under the rules of evidence [it] might be of great benefit to a defendant. We hesitate to apply unduly strict procedural requirements which would operate equally to prevent defendants from marshalling hearsay and other evidence favorable to themselves.” Id., 93 Idaho at p. 18, 454 P.2d 51 (emphasis added). It was a compassionate judgment when rendered. Fourteen years have since gone by, and recently the Court, differently constituted, has forgotten that the reason for the rule was to benefit defendants hoping for probation and rehabilitation. I very much doubt that any defendants convicted of first degree murder have ever sought probation. In non-capital cases the rule of State v. Moore has been used to the disadvantage of defendants — who would in my experience generally be better off if presentence investigation and reports were done away with. There has always been and remain yet our statutory procedure providing for the presentation of evidence in aggravation and evidence in mitigation. This has been so in pre-Furman cases, as documented in my Creech opinion. Whatever the Court decides to do in non-capital cases, and a return to the beneficent intentions of State v. Moore is in order, the Court simply cannot in any show of conscience continue to let capital sentencing be hinged on unsworn statements and other forms of hearsay. It is now clear that a capital case involves two trials. The first is to try the issue of the accused’s guilt. If convicted, the second is to try the issue of the circumstances of his crime and the facets of his character. Common sense dictates that the second trial for his life is the defendant’s more important trial. Can it be then that in Idaho we have a rule that while due process obtains at the guilt trial, anything goes at the second trial which determines the issue of life and death? Until recently, I had thought that removing the element of *921due process from the second trial was such a monstrous proposition as to be undeserving of discussion or comment. Today I find myself aligned with Justice Huntley in an effort to so convince today’s unyielding majority who harken back to State v. Moore as authority for abolishing due process.
It is true that State v. Moore, in addition to safeguarding defendant’s rights, relied on Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), but it is also true that thirty-four years have passed, and much has changed, particularly in the area of death penalty sentencing. If thé Supreme Court of the United States, as presently constituted, can now say that it little matters that a defendant is deprived of constitutional due process when his life is the issue stake, then a great many state judges and justices are going to be both disappointed and surprised. Whatever the outcome when the validity of Williams is closely scrutinized, we who sit on the Idaho Supreme Court will strike a sound blow for good government and good criminal justice administration when we remember that we are also sworn to uphold the Idaho Constitution and its requirements of due process and fundamental fairness. Today, as a Court, we do not do so. Presently, insofar as the United States Constitution is concerned, I believe that under it, and the many many death penalty cases of the Supreme Court, the validity of Williams has wholly eroded — insofar as it denied that due process was involved in sentencing a man to death.
HUNTLEY, J., concurs.. As amended in section 18-4004, the legislature showed its understanding that the jury had been and would continue as the sentencer:
“Punishment for murder. — Every person guilty of murder in the first degree shall suffer death or be punished by imprisonment in the state prison for life, and the jury may decide which punishment shall be inflicted. Every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten years and the imprisonment may extend to life.”
. I am not unaware of the use of the words “judge” and “trial judge” in I.C. section 19-2827(c)(2) and (e)(2).
. In his Creech opinion, Justice Huntley urged the legislature “to amend the statutes to provide for proper jury participation in order that future capital punishment cases will not be subject to this serious defect.” Hopefully, the 1984 legislature will respond when it convenes in January.
. State v. Allen, 23 Idaho 772, 131 P. 1112 (1913); State v. Huskinson, 71 Idaho 82, 226 P.2d 779 (1951); State v. Robinson, 71 Idaho 82, 226 P.2d 779 (1951); State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968). See I.C. § 19-2106, as modified by I.C.R. 14, requiring a showing of prejudice to avoid being jointly tried.
. As mentioned, Bainbridge did not testify at either trial. At his trial the prosecution did not offer his statement in evidence — perhaps because he denied any complicity, and perhaps because of what appears to be a Miranda violation.
. “FRANK SATTLER, produced as a witness at the instance of the State, having been first duly sworn, was examined and testified as follows:
“DIRECT EXAMINATION BY MR. HARRIS:
“Q. Frank, would you state your full name, please, and spell your last name?
“A. Frank Sattler, S-a-t-t-l-e-r.
“Q. Mr. Sattler, how are you employed?
“A. I’m a director of the Oil Heat Institute for Southern Idaho and Eastern Oregon.
“Q. Okay. You reside here in Ada County, do you?
“A. Ido.
“Q. Can you describe what that association is?
“A. It is an association of all the dealers in Southern Idaho in which markets petroleum products.
“Q. Were you employed in that capacity on and after April 6th of this year, 1981?
“A. I was.
“Q. Do you recall the incidents as reported in the press that occurred on April 6th, 1981 at a gas station owned by Claud Baird here in Boise?
“A. Ido.
“Q. What I would like you to do, Mr. Sattler, if you would, is just describe the ramifications throughout your industry that were felt based upon that criminal act on that day.
“A. I didn’t bring my notes. I don’t recall the exact dates, but shortly thereafter we had a meeting at my home concerning the murder of Dixie Wilson.
“Q. What kind of people attended that meeting?
“A. Well, the Stinker service chain was represented, the Shell service station, the Husky, the American Oil — I think all the major service station owners were at the meeting.
“Q. All right. Go ahead.
“A. And at the meeting Mr. Baird briefed the people that were there on what he had found at his particular station.
“Obviously, the emotions were quite high. And the meeting progressed as to what action, if any, we could take to prevent future occurrences and just how we could protect our people, frankly.
“Q. What kind of feelings resulted from that crime as were evidenced by the retail dealers in Ada County at that time?
“A. Well, several of the people that were there had — their employees had expressed to them the desire to take weapons to work with them. We discussed that at length and ruled it out with the obvious intent that somebody innocent would get hurt.
“We went to the manuals to find whatever safety devices were available to us, which some have been installed, like, bullet-proof glass and *919the like in those stations when the teller is inaccessible to the people.
“But where the teller is accessible, we can’t use that, obviously.
“Q. All right. What kind of people generally are tellers in gas stations in this community?
“A. The cashier types are primarily housewives trying to make a few extra dollars.
“Q. Would you say that they are vulnerable to this type of criminal activity?
“A. Totally vulnerable.
“Q. Mr. Sattler, if you were in a position to pass down a sentence in this case, what would that sentence be?
“A. My personal opinion?
“Q. Yes.
“A. I’d hang him.
“MR. HARRIS: That’s all I have Judge.”
“CROSS-EXAMINATION BY MR. KEHNE:
“Q. Mr. Sattler, do you know anything about the facts of the case other than what was reported in the press?
“A. Nothing.
“Q. You don’t know who actually killed Dixie Wilson, do you?
“A. I do not. Other than what was reported in the press and what the Court found.
“Q. Were you aware that the jury acquitted Mr. Sivak for premeditated murder?
“A. Was I aware of that?
“Q. Yes.
“A. No, I don’t recall reading that.
“Q. Would that change your opinion?
“A. Negative.
“Q. You don’t think it is something that should be considered?
“A. I wouldn’t — I don’t consider taking a human life as something that just—
“Q. He was acquitted of that, Mr. Sattler.
“MR. HARRIS: I object, Your Honor. He wasn’t acquitted of that.
“THE COURT: Well, it’s cross-examination. You may proceed, Mr. Kehne.
“Q. BY MR. KEHNE: About how many robberies have there been in gas stations around this valley in, say, the last three years?
“A. I don’t keep the statistics on that.
“Q. How often does it happen; can you give me an approximation?
“A. I think we probably average about two a month. I think Mr. Harris probably has the statistics on that.”
. “HARRY R. WILSON produced as a witness at the instance of the State, having been first duly sworn, was examined and testified as follows:
“DIRECT EXAMINATION BY MR. HARRIS:
“Q. Mr. Wilson, try to make yourself as comfortable as you can there, and would you state your full name for the record.
“A. Harry R. Wilson.
“Q. Do you reside in Ada County, Mr. Wilson?
“A. Yes.
“Q. How long have you lived in Ada County?
“A. Since ’69.
“Q. And how are you employed?
“A. For Baird Oil.
“Q. What do you do for them?
“A. I drive delivery truck.
“Q. Are you the same Harry Wilson who testified in the trial of this defendant, Lacey Sivak, in September?
“A. Yes.
“Q. Could you describe for the Court, please, Mr. Wilson, your family setting and general family life prior to April 6th, 1981?
“A. It was a pretty happy family life. Everything went pretty smooth. We had our disagreement, which anybody does, but it was a happy life.
“Q. How many children did you reside with at your residence with Dixie?
“A. Three.
“Q. How old are they now?
“A. 13, 12 and 9.
“Q. Who was the mother of those three children?
“A. Dixie B. Wilson.
“Q. I would like for you now to describe you family circumstances since April 6th, 1981.
“A. It has been a hard go. It’s — we started out the day of the funeral.
“Their original father, of the two boys that we had, that was hers from a previous marriage, he stuck me with a custody suit. We was in court right after that, and I have been in court four — or five times over that.
“Q. Are those children still residing with you, however? “A. Yes. I won my case with them; I’ve got them. And I’ve got one daughter that has been in psychiatric treatment ever since.
“Q. How old is she?
“A. She is nine.
“Q. Is that the natural daughter of both you and Dixie?
“A. Yes, that’s our natural daughter.
“Q. Tell me about those problems. What kind of problems is she having?
*920“A. Well, she just — she couldn’t accept it— this. And then she’s had other problems; she ■ has been molested twice since then.
“Q. Okay.
“A. She’s just — too many things; she can’t accept it.
“Her grades — schoolwork; everything has went down. All the kids went down.
“Q. Harry, if you were in a position to pass sentence on Lacey Sivak, what would that sentence be?
“A. Death.
“MR. HARRIS: That’s all I have, Judge.
“MR. KEHNE: We have nothing. Thank you.”