dissenting, with whom CARDINE, Justice, joins.
Cause to wonder exists about the real advocacy in this appeal, since appellant, under present law, will spend the rest of his life in prison subject only to commutation. As I contemplate the wisdom of future governors as they may observe our attention to this tail-ender robbery sentence, it likely will have no practical effect on their exercised judgment under the constitutionally provided commutation power considering this case where appellant was involved in a course of conduct resulting in two murders. The only sentence not subject to commutation is the executed death penalty.
Next, inquiry is generated why the prosecutor in plea bargain did not directly avoid the Tobin-Carter-Wyoming Constitution, Art. 1, § 11 issue per Blockburger, Whalen, Brown, Harris and Garrett (State v. Tobin, 31 Wyo. 355, 226 P. 681 (1924); State v. Carter, Wyo., 714 P.2d 1217 (1986); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764, reh. denied 473 U.S. 927, 106 S.Ct. 20, 87 L.Ed.2d 698 (1985)), and consequently negotiate pleas on two clearly differentiated crimes like two murders or at least murder of one and conspiracy to rob another. Perhaps the answer as suggested in the record is who got out-negotiated for at least the gamble of the chance by the after-plea invocation of double jeopardy, to attack the life sentence augmenting penalty of separate time for robbery.
All of this aside, and with conviction that what is done on this appeal matters hardly at all to Charles Edward Birr, I dissent because the precedent established will be singularly unfortunate as to both future cases that may involve felony murder and other cases coming within the duplicity, multiplicity, or double-jeopardy inquiry of the Wyoming Constitution.
Technically this appeal involves accessory felony murder with the constituent felony as an intrinsic ingredient for the homicide offense to be first-degree murder, and with a separate sentence then given for that one constituent of the senior offense. Consequently, appellant was sentenced twice for the same murder, not unlike the result in Whalen v. United States, supra.
The amended information, upon which the guilty plea was taken, stated:
" * * * that CHARLES EDWARD BIRR * * *, on or about the 1st day of March, A.D. 1985 * * *, did unlawfully and knowingly encourage, command or procure an aggravated robbery to be committed and during the commission of the aggravated robbery human beings, to wit: Robert Louis Bernard and Kathleen Ann Bernard were killed, in violation of Section 6-1-201 and 6-2-101, Wyoming Statutes.
“COUNT II
“That on or about the 1st day of March, 1985, * * * the above named defendant did unlawfully and knowingly encourage, command or procure an aggravated robbery and that Charles Edward Birr furnished deadly weapons, materials and *1123transportation to the residence of Robert Louis and Kathleen Ann Bernard where the aggravated robbery took place, in violation of Section 6-1-201 and 6-2-401(c)(ii), Wyoming Statutes.”
The issue is whether the constituent lesser-included robbery which creates the felony factor for felony murder coalesces in the resulting major offense for constitutional double-jeopardy purposes. Although not otherwise agreeing with the dissent, I would concur with the explanation in analysis of Blockburger by Justice Rehnquist in dissent in Whalen v. United States, supra, 445 U.S. at 712, 100 S.Ct. at 1448:
“ * * * [W]hen applied to compound and predicate offenses, the Blockburger test has nothing whatsoever to do with legislative intent, turning instead on arbitrary assumptions and syntactical subtleties. * * * If the polestar in this case is to be legislative intent, I see no reason to apply Blockburger unless it advances that inquiry.”
More directly relevant to this case is the majority in Whalen, which I would find to be applicable here:
“ * * * [Rjesort to the Blockburger rule leads to the conclusion that Congress did not authorize consecutive sentences for rape and for a killing committed in the course of the rape, since it is plainly not the case that ‘each provision requires proof of a fact which the other does not.’ A conviction for killing in the course of a rape cannot be had without proving all the elements of the offense of rape.” 445 U.S. at 693-694, 100 S.Ct. at 1438-1439.1
In result, as far as the individual is concerned, I do not find consecutive trials to be necessarily different from consecutive sentences under the same trial, when the decision will be made under the purview of the Wyoming Constitution which is the basis upon which my present dissent is premised. Cf. Harris v. Oklahoma, supra.
More wise than many if not most of those writing within the United States Supreme Court confines, Justice Blume for the Wyoming Supreme Court clearly and suitably addressed the proper rule in State v. Tobin, supra, 226 P. 681, which rule was consistently followed for the next 62 years, until almost casually rejected in State v. Carter, supra, 714 P.2d 1217. In abandoning our tradition and precedent of the same-transaction rule to adopt what has been a wholly unsettling rule in the federal court as a result of Blockburger, generally called the different-evidence rule, we invoke confusion for a standard of rationali*1124ty, as enunciated in Tobin and then continuously followed until current date.
Additionally, it would appear that this court improperly applies the Blockburger rule by reconstruction from “each provision requires proof of a fact which the other does not,” to adopt a rule that would provide “if either invokes proof of a new fact.” Under this reconstruction of Blockburger any lesser-included offense would always be definable as a different offense for consecutive-sentence imposition, even under the purview of the changeability of the United States Supreme Court. This posture would not now be acceptable in application of Brown v. Ohio, supra.
“ * * * The double jeopardy clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.” 432 U.S. at 169, 97 S.Ct. at 2227.
If we were to follow completely this conception as now advanced in the majority opinion, we could have a conviction of manslaughter, second-degree murder, murder, and felony murder, with consecutive sentences where the offense involved a single death. It may seem hardly to matter, since normally one person in presently known circumstances has only one life to live.
A different-evidence test involves that different evidence will be used in each conviction not required in the other, not that the augmented offense involves further misconduct which was part of the composite transaction.
“ ‘ * * * [T]he test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact that the other does not.’ ” (Emphasis added.) Whalen v. United States, supra, 445 U.S. at 692, 100 S.Ct. at 1438, quoting from Blockburger v. United States, supra, 284 U.S. at 304, 52 S.Ct. at 182.
In the lesser-included support felony which is the premise for felony murder, no separate fact is required to prove the one since its proof is inclusive in the proof of the second which only is the additional proof invoked. I do not perceive that the underlying offense goes unpunished since it is composite and participative in the final sentence on the resulting more severe offense.
In Brown v. Ohio, supra, 432 U.S. at 169, 97 S.Ct. at 2227, it is established under the double-jeopardy prohibition of the United States Constitution, as then to be applied to the states by the Fourteenth Amendment:
“ * * * Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.”
Certainly neither Whalen nor Brown, nor any of the other cited United States Supreme Court decisions have held to the contrary, that a lesser-included offense which is intrinsic in the major offense can be the vehicle for a second and consecutive sentence to supplement the punishment afforded on the major conviction.
More particularly of concern than what I perceive as an apparent misapplication of the law within the purview of the United States Constitution, is the almost cursory disregard of the Wyoming Constitution, Art. 1, § 11, “nor shall any person be twice put in jeopardy for the same offense,” and the disregard of the long-standing precedent of this state. As politics and political appointees are engrafted into the United States Supreme Court, as currently witnessed to a stark degree, the case law resulting will waiver and wane, and we of the state judiciary should establish a consistency and reliability in maintenance of a standard premised upon our state Constitution, only then to be interpreted in a fashion not to conflict with the temporal criteria manifested by current United States Supreme Court decision. See the conclusion in Comment, Federalism, Uniformity, and the State Constitution — State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986), 62 Wash.L.Rev. 569 (1987).
I dissent, in the almost academic question of the extended confinement obligation beyond a one-lifetime sentence by application of the constituent felony as a separate offense for punishment when the principal offense, felony murder, was pleaded out as *1125a life sentence. I agree with the current decision of Garrett v. United States, supra, where again Justice Rehnquist said:
“ * * * We have recently indicated that the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.” 471 U.S. at 779, 105 S.Ct. at 2412.
I would only add that the Blockburger rule should not obviate the state principles long established by Justice Blume as our standard. See Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983); and most currently, United States v. Gibson, 820 F.2d 692 (5th Cir.1987); and Barnard v. State, Tex.Crim.App., 730 S.W.2d 703 (1987), where the prohibited bootstrapping did not occur in the capital-murder case where the separate felony charge involved a second person.
I would deny validity of the augmenting term as to extend sentence beyond the life confinement provided by the murder offense plea.
. Not exhaustive in even reasonably current decision, cases which reject consecutive sentences for the underlying felony in felony-murder or double-jeopardy prescription include: United States v. Chalan, 812 F.2d 1302 (10th Cir.1987); Pryor v. Pose, 724 F.2d 525 (6th Cir.1984); Colle v. Henderson, 350 F.Supp. 1010 (W.D.La.1972); McCracken v. State, Alaska, 521 P.2d 499 (1974); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981); Callis v. People, Colo., 692 P.2d 1045 (1984); Hunter v. State, 249 Ga. 114, 288 S.E.2d 214 (1982); Sivak v. State, 112 Idaho 197, 731 P.2d 192 (1986); Mitchell v. State, 270 Ind. 4, 382 N.E.2d 932 (1978); State v. Stewart, La., 400 So.2d 633 (1981); Shabazz v. Commonwealth, 387 Mass. 291, 439 N.E.2d 760 (1982); People v. Wilder, 411 Mich. 328, 308 N.W.2d 112 (1981); State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987); Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981); State v. Villani, R.I., 491 A.2d 976 (1985); State v. Strouth, Tenn., 620 S.W.2d 467 (1981), cert. denied 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 692 (1982); State v. Vandiver, Mo., 613 S.W.2d 637 (1981); State v. Morgan, Mo., 612 S.W.2d 1 (1981); Ex Parte Drewery, Tex.App., 710 S.W.2d 148 (1986); State v. Shaffer, Utah, 725 P.2d 1301 (1986). On the associated subject of double jeopardy in dual conviction as including the lesser-included offense, see Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); United States v. Gibson, 820 F.2d 692 (5th Cir.1987); Hamilton v. Commonwealth, Ky., 659 S.W.2d 201 (1983), cert. denied 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984); Heald v. Perrin, 123 N.H. 468, 464 A.2d 275 (1983); Jones v. Commonwealth, 218 Va. 757, 240 S.E.2d 658, cert. denied 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 238 (1978).
Cases contra on the double-jeopardy, felony-murder sentence based upon interpretation of legislative intent or specified state statutes are a distinct minority in number (from, for example, Arizona, Florida, Nevada, and New Mexico), as the subject is reflected by Brimmage v. Sumner, 793 F.2d 1014 (9th Cir.1986); and Brimmage v. State, 93 Nev. 434, 567 P.2d 54 (1977). See also Fallada v. Dugger, 819 F.2d 1564 (11th Cir.1987), and cf. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) (vehicular homicide versus failure to reduce speed).