dissenting.
While agreeing with the dissent of Justice Huntley in the matter of two separate sentence enhancements, it is observed that both the majority and Justice Huntley overlook a very basic problem with the crimes themselves. Whether there is or is not a steady, indivisible course of conduct, the scenario does not bear out both a murder and a robbery.
The trial court correctly concluded that Johns’ conduct constituted two distinct crimes but the conclusion that one of these crimes is robbery is in error. The majority states: “It was only after Price had been mortally shot and stabbed, and after Johns had dragged him off to a hiding place in the sagebrush, that Johns, as an afterthought, determined to take Price’s wallet and his Harley motorcycle.” (Emphasis added.) Such conduct amounts to larceny, but not robbery. Robbery is a crime defined by the Idaho Code as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” I.C. § 18-6501 (1979). See also State v. Olin, 112 Idaho 673, 735 P.2d 984 (1987). The intent to take the wallet and the motorcycle was formed after the act of force, i.e., inflicting the fatal wounds.
The intent, animo furandi, necessary for the crime of robbery accompanies the force or fear being used to obtain the property which is in the possession of another. Since Price, according to the majority opinion, was mortally wounded or already dead, no force or fear was involved in the taking of his property. It is, of course, essential to a conviction of robbery “that the taking ... should, at the time of manucaption, have been with a larcenous intent.” McCall v. State, 56 Ala.App. 457, 322 So.2d 748 (1975), citing Kennedy v. State, 208 Ala. 66, 93 So. 822 (1922). The intent to take his property was instead an afterthought according to the majority. While it is undoubtedly true that a person can steal from a corpse, and a person can steal from an unconscious person — a rather common affair with unworthy prostitutes and dead drunks — robbery involves an additional quantum beyond a felonious taking. The force Johns used here was expended in killing Price, not the taking of his wallet or his Harley.
The issue arose in a similar context in People v. Green, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468 (1980). There the defendant Green killed his wife and took her clothes, rings, and purse in a failing effort to render her body unidentifiable. Convicted of robbery as well as kidnapping and felony first degree murder, on appeal, Green argued that his conviction for robbery was improper since his intent to steal arose only after the force was used against the victim. That court’s analysis should be this Court’s as well, especially within a *885short few weeks after our decision in State v. Olin, 112 Idaho 673, 735 P.2d 984 (1987):
The rule urged by defendant, on the other hand, is consistent with the fundamental doctrine of criminal law codified in Penal Code section 20, to wit, that in every crime “there must exist a union, or joint operation of act and intent____” (See People v. Mayberry (1975) 15 Cal.3d 143, 154, 125 Cal.Rptr. 745, 752, 542 P.2d 1337, 1344; People v. Hernandez (1964) 61 Cal.2d 529, 532, 39 Cal.Rptr. 361, 393 P.2d 673; People v. Stuart (1956) 47 Cal.2d 167, 171, 302 P.2d 5.) “So basic is this requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication.” (Fn. omitted.) (People v. Vogel (1956) 46 Cal.2d 798, 801, 299 P.2d 850, 853.) It is an element of robbery. (People v. Crowl (1938) 28 Cal.App.2d 299, 308, 82 P.2d 507.)
Under section 20,[1] the defendant’s wrongful intent and his physical act must concur in the sense that the act must be motivated by the intent....
... [T]o support a conviction of larceny the defendant must have intended to steal the property at the time he took it; if the intent arose after the act of taking, the crime may be embezzlement or a lesser offense but it cannot be larceny____ The same rule must therefore apply to robbery: “Since robbery is but larceny aggravated by the use of force or fear to accomplish the taking of property from the person or presence of the possessor [citation], the felonious intent requisite to robbery is the same intent common to those offenses that, like larceny, are grouped in the Penal Code designation of ‘theft.’ ” (Fn. omitted.) (People v. Butler (1967) 65 Cal.2d 569, 572 573, 55 Cal.Rptr. 511, 514, 421 P.2d 703, 706.) We conclude that like the nonviolent taking in larceny, the act of force or intimidation by which the taking is accomplished in robbery must be motivated by the intent to steal in order to satisfy the requirement of section 20: if the larcenous purpose does not arise until after the force has been used against the victim, there is no “joint operation of act and intent” necessary to constitute robbery.2 Green, supra, 609 P.2d at 500-01.
See also Ortega v. Superior Court of San Joaquin County (3d Dist.), 135 Cal.App.3d 244, 185 Cal.Rptr. 297 (1982); People v. Joyner, 26 N.Y.2d 106, 308 N.E.2d 26, 257 N.E.2d 26 (1970) (Defendant was not guilty of felony murder, if at the time of the murder defendant did not have the intent to commit the robbery.); McCall v. State of Florida, 503 So.2d 1306 (5th Dist., 1987). Johns clearly was not shown to have had larceny in mind when he shot Price; hence, the taking of his wallet followed by the appropriation of the motorcycle was larceny, but a larcenous taking absent any intimidation or violence. 67 Am.Jur.2d, Robbery § 17, p. 70.
The importance of determining that Johns did not commit a robbery is obvious. Although Johns’ crime in stealing the wallet and the Harley was a larceny under I.C. § 18-4601, it is not one of the substantive crimes for which an enhanced penalty is provided for under I.C. § 19-2520. The trial court was in error when it convicted Johns of a robbery and imposed a separate enhancement for the crime. The majority is grossly in error in declaring that the evidence supports that conviction and concomitant sentence enhancement.
. Section 20 of the California Penal Code is identical to § 18-114 of the Idaho Code except for the title and opening sentence which reads: "Crime; unity of act and intent, or criminal negligence. To Constitute Crime there Must Be Unity of Act and Intent." West’s Ann.Pen.Code, § 20 (1970).
. Because the court held the jury could have reasonably concluded that the defendant Green had used force or intimidation in causing his wife to disrobe before he killed her, and because one spouse can steal from another, the robbery conviction was upheld.