dissenting.
I.
One is left to suppose from the Court’s “four-liner” disposition of this appeal following rehearing that it was expected to be a unanimous per curiam decision. But it is not, and those who are in the practice of criminal law and those who follow us on the bench, are by the majority left to wonder at the lack of any discussion whatever. In a case of this magnitude the parties and their attorneys are entitled to something better. It would not be surprising that *228there may be some speculation that the Court has had in mind to give some reconsideration to the Court’s recent judgments in State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985) (petition for rehearing filed Jan. 9, 1986) and State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985) (petition for rehearing filed Jan. 9, 1986), in both of which cases the death penalty was reversed as excessive. The Court’s reasoning in its Windsor and Scroggins opinions is equally applicable in Stuart. In Scroggins the child killed was but a few years older than the child killed by Stuart. The victim, by the very reason of being older, was not only killed in a manner more brutal than in Stuart, but was kidnapped, raped, and robbed of any vestige of human dignity before she was murdered. Worse yet, the helpless handcuffed girl was made to suffer the knowledge that she was going to be killed. Obviously, where there is such a crime as torture murder, it was more in appearance in Scroggins than it was here.
Similarly with the Windsor case. Here the distinction between Scroggins and Windsor is only in the fact that the victim in the latter was not a child, but an older man who had befriended his captors, torturers, and killers.
Because the legislature has insisted on proportionality, and the Court heretofore made its proportionality analysis in this case without having the benefit of the proportionality analysis it would shortly thereafter make in Windsor and in Scroggins, and the district court at sentencing in Stuart also was without the benefit of those opinions, my vote was tendered to treat Stuart as evenhandedly as the Court dealt justice to Scroggins and to Windsor.
It may be replied in answer to that proposition that the Court’s grant of a rehearing to Stuart did not include the propriety of the death sentence. True, the rehearing as granted was limited.1 But, as has been mentioned in my earlier opinions, any time there are three votes, three votes can do and have done anything. In addition to examples of what the Court as now constituted has done, I suggest the case of State v. Ramirez, 34 Idaho 623, 203 P. 279 (1921) (Ramirez II), where there were enough justices voting to result in a recall of the remittitur which had already gone down after the Court had upheld the death penalty in State v. Ramirez, 33 Idaho 803, 199 P. 376 (1921) (Ramirez I). On further reflection the Court, in Ramirez II, modified the sentence to imprisonment for life. Its reasoning in so doing is applicable to the case now under consideration:
“The judicial power to modify a judgment and sentence ... is an award of justice____ Justice is imperative, and must not be denied____ In other words, the provisions of our criminal procedure act make it the duty of this court to review the record, and in a proper case, if necessary in the furtherance of justice, modify the judgment so as to prevent the imposition of punishment which the evidence will not warrant.” [quoting Fritz v. State, 8 Okl.Cr. 342, 128 Pac. 170 (1912)]...
The right of courts to exist and to function rests upon their power to mete out fundamental justice____ Causes have frequently found their way into the appellate court, where error had been committed in the trial, not prejudicial error or such as would warrant a reversal of the cause, but which has resulted in the infliction of excessive punishment. When such is made to appear, this court has unhesitatingly, under the provisions of C.S., sec. 9086, modified the judgment, and in so doing has not exceeded its power under the law of this state.
... “There exists in every court ... an inherent power to see that a man’s *229fundamental rights are protected in every case. Where a man’s fundamental rights have been violated, while he may be precluded under the terms of the statute or rules of appellate procedure from insisting in this court upon relief from the same, this court has the power, in its discretion, to relieve him and to see that injustice is not done. The restrictions of the statute apply to the parties, not to this court____ Under such circumstances we cannot permit such an injustice to be done. For a similar case, and a similar holding, see Sykes v. United States, 204 Fed. 909, 123 C.C.A. 205.” [Quoting State v. Garcia, 19 N.M. 414, 421, 143 P. 1012, 1014 (1914) ].
From a careful examination of the record in this case we are convinced that while the evidence is sufficient to sustain the judgment, it is not sufficient to warrant the extreme penalty of the law. The verdict was based to a great extent upon the testimony of one Garcia, whom appellant charged with the murder. The testimony, actions and statements of this witness, as shown in the record, are of such a character that we have grave misgivings about the infliction of the death penalty. Without reciting in detail all of the facts and circumstances involved in the trial of this cause, and specifically pointing out errors which were not reversible, but which may have influenced the jury in assessing the extreme penalty, it is clear to our minds that the jury abused its discretion in so doing. Ramirez II, supra, 34 Idaho at 636-38, 203 P. at 283-84 (emphasis added).
The Sykes case, referred to above, contains like language:
[I]n criminal cases, where the life, or as in this case the liberty, of the defendant is at stake, the courts of the United States, in the exercise of a sound discretion, may notice such a grave error as his conviction without evidence to support it, although the question it presents was not properly raised in the trial court by request, objection, exception, or assignment of error____
The defendant in this case may not be lawfully deprived of his liberty for five years without proof of his guilt beyond a reasonable doubt much less without any substantial evidence of it, and this court cannot disregard his appeal, sit in silence, and permit the perpetration of such an injustice.
The judgment below is accordingly reversed, and the case is remanded to the District Court for a new trial. Sykes v. United States, 204 Fed. 909, 913-14 (1913) (citations omitted) (emphasis added).
The Ramirez case stands for two principles, one being that this Court long ago recognized its power 'to do what three or more justices decided needed to be done, and the other being that long before State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971), this Court recognized concepts of fundamental fairness in criminal cases. Those concepts are neither long-remembered or well-noted by today’s majority. The many errors at Stuart’s guilt trial, well-documented in my dissenting opinion, are far more than a mere sufficiency for at the least modifying the sentence imposed by the district court — not to mention the vast use of hearsay upon hearsay which went into the penalty phase of his trial.
II.
The court minutes will reflect my vote was for a full rehearing on all issues, not just the validity of the court’s Given Instruction No. 18. As most practitioners of even limited trial experience are well aware, juries are without fail admonished that the instructions are to be read and considered as a whole, not in isolation. How is it, then, that the Court has not followed the precepts which it teaehes? And how is it that the Court put the parties to the exercise of a rehearing, including for Stuart’s attorney travel to Boise, and produces nothing new to explain how it is that Instruction No. 18 was flawless?
The Solicitor General, on behalf of the state, has not claimed that it was a proper instruction. Rather, the contention is ad*230vanced that the defendant (who knows nothing of law) is in “procedural default”— for which reason this Court cannot examine the issue — the only issue — which the Court’s order said would be examined on rehearing. Mr. Thomas actually urged upon us that we had no authority to go into the issue:
“MR. THOMAS: Mr. Chief Justice, and may it please the Court, I want to address to myself this morning to two points. The first of them is the question of a procedural default precluding the Court from properly entertaining this question, and secondly I want to talk about, and probably at greater length than the first question, what the respondent perceives to be a factual misapprehension on the part of appellant on which his argument on this appeal rehearing is based.
“With respect to the question of procedural default, let me review the procedural background of the case for a moment or two. First of all, in the direct appeal of this case. The question relating to the torture murder instruction—
“JUSTICE BISTLINE: Mr. Thomas, correct me if I’m wrong, but I know that you were going to talk about this because Mr. Kinney said you would. We’re still on the direct appeal. Now where am I wrong on that part ?
“MR. THOMAS: We’re on the rehearing from the direct appeal.
“JUSTICE BISTLINE: But we’re still on the direct appeal, are we not?
“MR. THOMAS: We’re in what the Court has, on a number of occasions, separated from the direct appeal in a number of cases cited in our rehearing brief. Those cases say you cannot raise a new issue for the first time on a rehearing. It’s our position here that if this point is entertained here it will be contrary to that series of cases. That’s were we want to start on this procedural default question, because I think the question of procedural default is a very important one. If the procedural rules are not followed in these kinds of cases, then review in the state courts essentially becomes a kind of superfluity because the federal courts are going to start all over again and run through the process from the beginning essentially. Now, when this case was here on the first appeal, the question about this instruction had to do with the sufficiency of the evidence to support it. The appellant’s position at that time was that the evidence did not make out the facts of torture murder as that crime was defined by the statute. And, of course, that aspect of the case was decided against the appellant. But on this rehearing what we have is a question of the legal propriety of giving instruction no. 18 based on the theory, as I understand it, that the information charged that the crime had been carried out — the torture murder had been carried out — with the intent to cause suffering. The theory seems to be that the information thus required proof of intent to cause suffering but the [trial] Court dispensed with that proof by instruction no. 18, a variance theory. So it seems clear to us that this is a new issue, this is a brand new issue, and it appears to me that the appellant has conceded that in his argument, not raised until the time of the rehearing in violation of the Court’s procedural rule that you can’t raise new issues at the time of the rehearing.
“JUSTICE BISTLINE: Your argument is then that you are saying that the Court erred in granting the petition for rehearing on this instruction no. 18.
“MR. THOMAS: I think that would follow from my argument related to this. There is an exception, of course, that’s been brought out, and that’s the question of fundamental error. Fundamental error, however, in the context of giving instructions has been defined by the Court in the case of State v. Haggard, as the failure of the court to lay out the basic elements of the law that the jury needs to know about in order to determine whether the defendant committed a crime, or if it inaccurately states those basic principles of law. It’s our position, and I’m going to get to that in just a moment in talking about what the instructions given were, that there isn’t anything like that in here, that the court *231accurately instructed on the elements of law. But I want to just make this one final observation, if I may, about the procedural default situation. We’re not talking about the default of a fundamental matter. We’re not talking about an instruction laying out the correct law to the jury which was omitted. What the appellant has suggested is that he made an oversight. I would suggest that a more accurate view of that is that the appellant now comes in with a new theory to supplant that one which did not work the first time through and that is the precise thing that rules a procedural default, as the United States Supreme Court has talked about them in Wainwright v. Sykes, is intended to preclude in the interest of the ultimate finality of litigation. If an appellant’s counsel is entitled to come in on rehearings or on collateral attacks with new theories and say each time T overlooked this. I apologize but the pressures of the moment were just too great. There is no end to this kind of litigation, because that could be said about nearly every case the court hears. There is another theory lurking somewhere in the background on which the case could have been tried. If, under the rule of Wainwright v. Sykes, there is in fact a fundamental problem, if there is something in the procedural background case that casts doubt on the reliability of the ultimate judgment of guilt or innocence, then the cause and prejudice rule set out in Wainwright v. Sykes, allows that to be considered. What is not permitted in the interest of finality is a new theory, the overlooked theory, the ‘I think this is better, let me try this one out’ idea which so much undermines the finality of the solemn judgments of courts. So, I think the Court should consider this to be a defaulted claim.
“JUSTICE SHEPARD: Mr. Thomas, let me say this. I don’t want you to believe that I’m arguing it, but I want to give you my impression at the moment, and then you either comment if you think I’m wrong, or ignore what I said and go on to your next point, which I assume you’re about to do. It seems to me that the legislature in its wisdom or lack thereof has said to this Court, ‘Thou shalt review a death penalty case, whether there be an appeal or not. ’ Right?
“MR. THOMAS: The death sentence is to be reviewed whether there is an appeal or not, but not other questions.
“JUSTICE SHEPARD: The legislature has said to this Court, ‘You will examine the imposition of a death sentence and determine whether it is proportionate to other sentences imposed in other cases.’ Something that certainly we don’t expect trial courts to do and if they did it, we’d probably say they were in error in doing it. The legislature has said, ‘Death penalty cases are different,’ for whatever reason, on the finality if nothing else. I don’t really accept what I perceive your argument to be, that we are to apply procedural default rule in a death penalty case because counsel for the appellant did not raise the point in the initial briefing and hearing on it but has raised it now. Now you tell me why I shouldn’t think that way, Mr. Thomas.
“MR. THOMAS: Well, in the context of the federal constitution, if I can start there, the United States Supreme Court seems to have emphasized several times that as far as the procedural rules are concerned, it doesn’t make any difference whether the case is a capital case or another kind of case. It’s important for the state to have the right to enforce it’s procedural rules. Otherwise, these cases can go on forever. From a procedural point of view there isn’t any difference between a capital case and another kind of case. The legislature, in capital cases, has asked the Court to review the sentence, but not the procedural niceties or the procedural aspects of the case unless an appeal is brought raising those questions specifically. I don’t the believe the legislation creates a procedural distinction or was intended to create a procedural distinction between capital cases and other kinds of cases. It is just as important in a capital case to insist that one be precluded from interminable litigation of new ideas thought up after the *232decision comes down adversely to the defendant. As I say, if there is a real question about the reliability of the result, the accuracy of the finding of guilt or innocence, that problem may be addressed, even under Wainwright v. Sykes and even under this Court’s procedural rules. The fundamental error rule, for example, would permit that even if it were defaulted. But the procedural rules do prevent the relit-igation of claims that do not cast doubt on the reliability of the result and it seems to us that that is as it should be. Otherwise, capital cases will be carried on forever when counsel comes forward with another theory that wasn’t used at trial but might be successful this time around. Allowing that kind of undermining of the finality of these cases seems to me as only one possible result, and that is to undermine public confidence in the ability of the courts to enforce the law. So, both from a legal and a policy perspective, I think it would be a bad idea.
“JUSTICE BISTLINE: Mr. Thomas, would I understand from your response to Justice Shepard’s question is that if we had a defendant, like sometimes as Creech is and sometimes as he is not, says ‘okay, I’ve been convicted, I don’t want an appeal,’ we still have to do the mandatory bit under the legislative direction. We have to do our review. And if Creech did not have a lawyer and we were doing our review, are you saying that we would not, besides reviewing the sentence, look to ascertain to see that he had a fair and impartial trial ?
“MR. THOMAS: Oh, yes, absolutely, Your Honor. Sentence review is sentence review in the context of capital cases. The Court is to determine whether, assuming that the finding of guilt is accurate, the sentence of death was proper in the facts and circumstances of the case. But I don’t believe that was an invitation to the Court to go into procedural questions or other kinds of questions relating to the admissibility of evidence of whatever that do not impact on the court’s decision to impose a particular sentence.
“JUSTICE BISTLINE: I’m not sure I understand. Are you saying that we would or would not search the record of the trial proceedings to see if the defendant had had a fair trial ?
“MR. THOMAS: I think that’s correct. I think that the automatic review—
“JUSTICE BISTLINE: What’s correct? That we would or would not ?
“MR. THOMAS: You would not have the authority to go beyond sentence review which is the only thing specified for automatic review in the context of the capital case. It’s almost inconceivable that there’s not going to be an appeal in a capital case, but let us assume the defendant says I don’t want to appeal. I want to be executed, such as Gary Gilmore did. The Court isn’t off the hook in terms of sentence review, but it isn’t entitled in those circumstances to go into the procedural and evidentiary aspects of the trial.
“JUSTICE BISTLINE: If you’re correct, then why would we require, which we do requre, assuming there’s no appeal by the defendant himself, why do we require the transcript of trial proceedings ?
“MR. THOMAS: Well, the transcript of the trial proceedings lays out the facts, gives the factual background of the crime. It tells all the details relating to the crime and that’s an important consideration in passing sentence because the nature of the offense is, of course, a consideration under the capital aggravating factors that are set out in the aggravating list in the statute. In fact that’s the fundamental premise of those aggravating factors, how the crime was committed and the defendant’s culpability in the crime.
“JUSTICE BISTLINE: So you would say, in effect, that when we have an appeal in a case where the death sentence has been imposed, that any member of the Court — and there is counsel for the defendant, and we’re making the mandatory review — that any member of the Court who concerns himself with a question as to the fairness of the trial that hasn’t been brought up by the defendant himself is just *233being sort of an intermeddler, a busybody? Such as myself.
“MR. THOMAS: Not only that, Your Honor, but I think you are saying ‘and finally, forget what I have said, because this case is going over to the federal court and they’ll make the decision anyway.’ Because that’s really what you do when you don’t insist on adherence to the state’s procedural rules. And I don’t think that’s really a good idea, because you’ve got on a collateral review a federal court is at least twice removed from the facts. The record becomes more attenuated. The chance of factual error becomes greater and greater and obviously the interest in finality is attenuated as well.” (Emphasis added.) Obvious to the extreme, Mr. Thomas was confusing the circumstances here attendant — a conviction and death sentence still before this Court — with failure of exhaustion of state remedies in pursuing federal habeas corpus relief from a state conviction. Hence his reliance on Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (not to be confused with Sykes v. United States, 24 Fed. 909 (1913), mentioned above). There was no reason to believe that his argument convinced any member of the Court that we do not — even in noncapital cases, remain on the alert for fundamental error (even though unassigned) which has deprived an accused of a fair and impartial trial. To name a few fundamental error cases in which at least three or more members of this Court participated, I submit State v. Cariaga, 95 Idaho 900, 523 P.2d 32 (1975); State v. Swenor, 96 Idaho 327, 528 P.2d 671 (1974); and State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971).
Yet, today a majority of the Court, seemingly having no recollection of what was written in those cases of not so long ago, has perhaps succumbed to the Solicitor General’s wholly fallacious argument. Today the majority informs the litigants, informs the bar, and also the people of Idaho, long after rehearing, only that it adheres to everything which it held, declared, and stated in its earlier opinion. With respect to Instruction No. 18, that earlier opinion provides us only with this much, and no more:
[ ' ]
[ ]
[ ]
Concededly, the majority is found remaining consistent to what it earlier observed regarding Instruction No. 18, concerning which it now says only this, and nothing more:
[ ]
[ ]
[ ]
The only place in the opinion for the Court where the majority showed any concern with the instructions is in the eleven lines which comprise Part I.B., beginning at page 839 Maj.op., which, for reading facility, is footnoted below.2 All that the majority considered and disposed of there was the error assigned in the trial court’s failure to instruct on second degree murder by torture. Even that disposition did not comport with earlier holdings by the Court, and was a most improper and unfortunate ducking of an important issue, which was at the time exposed to the majority in my earlier effort at pp. 858-859 of the Maj. opinion.
As to Instruction No. 18, all that can be divined by the readers of our opinions here is that at least one member of the Court *234joined my vote for a rehearing, but restricted it to Instruction No. 18 only — the presumption being that someone other member of the Court did then see fundamental error in the trial court’s instructing the jury on alternative inferred torture murder which absolutely and unequivocally dispensed with proof of intent to cause suffering. The giving of Instruction No. 18,3 to the mind of any practitioners of even the slightest experience, would have supplied the “real question about the reliability of the result, the accuracy of the finding of guilt or innocence,” per the oral remarks of the Solicitor General. As I stated earlier, “defendant had not been so charged with extreme and prolonged acts of brutality, and this was fundamental error of the highest level. It allowed the jury to disregard that portion of Instruction 17 which required proof of intent.” P. 857.
The error in Instruction No. 18 was sufficient to require a new trial. Other error in instructing, previously documented, was equally erroneous and equally prejudicial. These are the kinds of errors which Wainwright v. Sykes, supra, teaches should be cleaned up in the state courts prior to and not in federal habeas corpus proceedings. Under either state or federal notions of constitutional due process, the instructions given m this case, as discussed earlier, deprived Stuart of a fair trial.
That which I wrote now well over nine months ago is even more compelling where the majority, having been afforded the opportunity of a second and perhaps less passionate review, obdurately clings to the absurdity that Instruction No. 18, no matter how prejudicially erroneous, must be laid at the feet of defendant’s counsel — which only activates post-conviction hearings in the state court as to adequacy of counsel, and then appeals in the state system, and then the gamut in the federal system.4
Mr. Kinney, Stuart’s appointed counsel, told us at reargument: “I did not invite error. I have never invited a court to commit error.” The majority contentedly does a disserivce to a practitioner who has singlehandedly undertaken an extremely “complicated first degree murder” case of first impression. Maj.op., p. 844. It is much to be doubted that any member of this Court has undergone that same experience.
. The Court’s order of September 20, 1985, stated: "IT IS HEREBY ORDERED that Appellant's PETITION FOR REHEARING be, and hereby is, GRANTED only as to the single issue of Jury Instruction Number 18 concerning proof of intent and is hereby DENIED as to all other issues raised by Appellant.” The Court heard oral argument in Windsor on September 4, 1985 and in Scroggins on September 3, 1985.
. Appellant also argues that the statute quoted above, I.C. § 18-4001, and I.C. § 18-4003, should be read to contemplate the existence of a second degree murder by torture offense, and thus the trial court should have instructed the jury on second degree murder pursuant to its duty to instruct on lesser included offenses. We note that a second degree murder instruction was given, but a second degree murder by torture instruction was not requested or given. In addition, we note that appellant’s counsel accepted the instructions as given by the court, and noted that he had no objection to the instructions the court intended to give. Thus, any error in failing to instruct on this charge, if indeed one exists, was invited error and will not be considered on appeal. State v. Lopez, 100 Idaho 99, 593 P.2d 1003 (1979). Maj.op., p. 840.
. Instruction No. 18 reads as follows:
Murder is the unlawful killing of a human being with malice aforethought or the intentional application of torture of a human being, which results in the death of a human being, torture is the intentional infliction of extreme and prolonged pain with the intent to cause suffering. It shall also be torture to inflict on a human being extreme and prolonged acts of brutality irrespective of proof of intent to cause suffering. The death of a human being caused by such torture is murder irrespective of proof of specific intent to kill; torture causing death shall be deemed the equivalent of intent to kill. (Emphasis added.)
. Oral argument on this appeal was first heard on November 4, 1983, and it is now almost 28 months later. Going on six years ago, in State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981), where that case had languished in this Court for less time than with Stuart’s case, I cautioned:
[Tjhere are certain types of cases which come before this Court where there are obvious compelling reasons for according those cases a priority in our deliberative and decision-making processes. One example coming readily to mind is any adoption case and, likewise, any child termination case.
Generally such cases have received preferential treatment, and I do not think tha anyone would complain that such take place. Death penalty cases, like juvenile waiver proceedings, see Dillard v. State, 101 Idaho 917, 623 P.2d 1294 (1981), are of a unique type where lengthy delays in the judicial process cannot be tolerated, and can lead to claims of prejudice or of cruel and inhuman punishment, especially where death row defendants are kept dangling indefinitely in appellate court processes not knowing whether they eventually will or will not be executed. Osborn, supra, 102 Idaho at 433, 631 P.2d at 215.
In this case, I think the Court has exceeded the limits beyond which there occurs the infliction of cruel and inhuman punishment. Stuart has now served almost six years of a life term and death may still await him. Add to that factor multiple trial errors, unheeded, and throw in Windsor and Scroggins, and modification of sentence seems mandated.