dissenting.
I dissent from the disposition of this case according to the majority opinion. I am not necessarily dissatisfied with the result but, in my view, this case is one that would best be disposed of by applying the doctrine of merger of offenses for sentencing. This court has acknowledged that the prohibition against double jeopardy found in both the Fifth Amendment to the Constitution of the United States and in Article 1, Section 11 of the Constitution of the State of Wyoming affords three distinct protections to the accused. Among those, is the protection against multiple punishments for the same offense in a single trial. E.g., Lauthern v. State, 769 P.2d 350 (Wyo.1989); Schultz v. State, 751 P.2d 367 (Wyo.1988); Birr v. State, 744 P.2d 1117 (Wyo.1987), cert. denied 496 U.S. 940, 110 S.Ct. 3224, 110 L.Ed.2d 671 (1990); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).
*872In Vigil v. State, 563 P.2d 1344 (Wyo.1977), we discussed the filing of multiple charges and the separate verdicts on those charges that were returned by the jury. The court introduced the subject in this way:
There are here separate crimes that have been charged and proven. All arise from the same event but each involves a separate victim and courts are protective of the individual citizen subjected to the criminal conduct of another. We have compiled cases in which there were separate charges, entangling more than one citizen victim, arising out of one occurrence in which courts have held there to be no double jeopardy and imposed multiple punishments, in some cases concurrent and in others consecutive or by combinations of those sentencing techniques. The precise question is addressed to the asserted error of failure of the trial court to dismiss all or part of the counts on the grounds of double jeopardy and fair trial. Vigil, 563 P.2d at 1351.
Dismissal of all or part of the counts is precisely the disposition made by the majority opinion in this case and favored by the other dissenting justice. Yet, in Vigil, this court went on to hold that no prejudice attached to charging, trying, submitting to the jury, and receiving the five verdicts. The third protection afforded by the constitutional prohibition was not reached because the trial court in Vigil had imposed only one sentence.
I am satisfied, in this instance, that no error occurred in the trial court because of the failure to dismiss all or part of the counts on the grounds of double jeopardy and fair trial. Certainly, the evidence was adequate to justify a conviction on any one of the counts as is appropriately demonstrated by the arbitrary selection of one unidentified count to be sustained and the vacation of all of the other convictions. (I -have some concern about the ultimate result under the majority opinion if the selected count should somehow be reversed on post-conviction review.) I would maintain the validity of each conviction, but would permit the justice of the peace court to impose only one sentence by holding that these offenses merged for purposes of punishment.
A very lucid description of the doctrine of merger of offenses for sentencing is found in Commonwealth v. Whetstine, 344 Pa.Super. 246, 496 A.2d 777 (1985), as that doctrine has developed in Pennsylvania.
In deciding whether offenses merge, the question is whether the offenses charged “necessarily involve” one another, or whether any additional facts are needed to prove additional offenses once the primary offense has been proven. In deciding merger questions, we focus not only on the similarity of the elements of the crimes, but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed but a single criminal act.
Additionally, we note that analysis of merger claims traditionally has revolved around the concept of injury to the sovereign; in order to support the imposition of more than one sentence, it must be found that the defendant’s conduct constituted more than one injury to the Commonwealth.
Whetstine, 496 A.2d at 779-80 (citations omitted).
Applying that approach, I would analyze this case as one in which we are concerned about the concept of injury to the sovereign. The majority opinion quotes from the statute in question, Wyo.Stat. § 6-3-203(b) (1988), and I note that it defines the offense as cruelty to animals, in the plural. It follows that the injury to the sovereign is cruelty to animals. The evidence for the several counts is substantially identical except that it did establish that more than one animal was involved. The doctrine of merger, applied in light of common sense in this instance, and analyzing the “unique facts” of this case, achieves the appropriate result.
As the majority notes, the jurisdiction of the justice of the peace court in a criminal case is limited to punishment for not more than six months and a fine of not more than $750. The application of the doctrine *873of merger for sentencing recognizes this limitation upon the jurisdiction of the justice of the peace court, and the single sentence for the merged offenses does not exceed that jurisdiction.
In In re Snow, 120 U.S. 274, 284, 7 S.Ct. 556, 30 L.Ed. 658 (1887), the court quoted Lord Mansfield writing in Crepps v. Durden, Cowper 640:
There can be but one entire offence on one and the same day. And this is a much stronger case than that which has been alluded to, of killing more hares than one on the same day. Killing a single hare is an offence; but the killing ten more on the same day will not multiply the offence, or the penalty imposed by the statute for killing one.
It seems to me Lord Mansfield’s comment is peculiarly applicable to this instance and, while it might lead to a conclusion that it supports the majority resolution, I conclude the holding in Vigil, which is cited by the majority, demands the convictions be sustained, but that the single penalty be imposed.
Recognizing that the “bottom line” according to the majority opinion and according to my suggestion is identical, I am satisfied that we better support our precedent articulated in Vigil, and perhaps maintain a better posture of the law in Wyoming, by acknowledging the validity of the separate charges and the separate convictions. At the same time, we protect the constitutional rights of Amrein by limiting the imposition of punishment to a single sentence that is clearly within the jurisdiction of the justice of the peace court in a single case.