(concurring in result). The defendant is charged with assault with intent to commit murder, MCL 750.83; MSA 28.278, and with possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Both charges are based on the same allegation— that the defendant fired a gun through the door of a van occupied by eight off-duty police officers, one of whom was wounded in the foot. Defendant appeals from the denial of his motion to quash one or both of the counts or, alternatively, to compel the prosecutor to elect between them. The trial judge did conclude that the case involves a controlling question of law as to which there is substantial ground for difference of opinion, and that an appeal from denial of the motion may materially advance the ultimate termination of the litigation. GCR 1963, 806.3(l)(a)(ii).
Defendant contends that in the circumstances of his case, he would be placed twice in jeopardy by having to defend against prosecution on both counts. I conclude that this issue is prematurely raised. The Federal and state constitutions provide that a criminal defendant cannot be put twice in jeopardy. US Const, Am V; Const 1963, art 1, § 15. *707But a defendant is not placed in jeopardy until he is put to trial before the trier of facts; jeopardy does not attach until the jury is impaneled and sworn or, in a bench trial, until the court begins to hear evidence. United States v Jorn, 400 US 470, 479; 91 S Ct 547; 27 L Ed 2d 543 (1971), Serfass v United States, 420 US 377, 388; 95 S Ct 1055; 43 L Ed 2d 265 (1975), People v Alvin Johnson, 396 Mich 424, 431, n 3; 240 NW2d 729 (1976), People v Gardner, 37 Mich App 520, 525-526; 195 NW2d 62 (1972), People v Pribble, 72 Mich App 219, 223; 249 NW2d 363 (1976). Even if it is true that conviction on both counts would constitute double punishment, the mere fact that the defendant is charged with both does not put him twice in jeopardy. See People v Goodchild, 68 Mich App 226, 236-237; 242 NW2d 465 (1976), lv den, 397 Mich 830 (1976), McDaniel v Jackson, 78 Mich App 218; 259 NW2d 563 (1977). At this point, prior to trial, defendant has yet to be placed in jeopardy once, let alone twice. For this reason I would affirm the trial court.
However, I disagree with the majority’s conclusion that there would be no double jeopardy violation if defendant is ultimately convicted of both crimes with which he is charged. Because assault with intent to commit murder is a lesser included offense of "felony-firearm”, at least in this case, defendant may not be convicted of both the lesser and the greater offense.
Among the guarantees encompassed by the double jeopardy clause is protection against multiple punishment for the same offense. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). It is beyond dispute that a single act may violate more than one criminal statute where this is the clear legislative intent. Blockburger v *708United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958), People v Bennett, 71 Mich App 246, 248; 247 NW2d 368 (1976). But where one of two offenses charged is necessarily a lesser included offense of the other, convictions for both based on the same act amount to unconstitutional double punishment. People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977).
Based on the facts developed at the preliminary examination, it appears that defendant’s alleged act of assault with intent to murder was necessarily a lesser included offense of felony-firearm. A necessarily lesser included offense is an offense such that it is impossible to commit the greater without first having committed the lesser. People v Patskan, 387 Mich 701, 713; 199 NW2d 458 (1972), People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975). Some offenses are never necessarily included in others on any set of facts because they share no elements. E.g., People v Jones, 75 Mich App 261, 272; 254 NW2d 863 (1977) (gross indecency and assault with intent to commit gross indecency). Other offenses are always necessarily included in others because the latter consist of all the elements of the former plus more. E.g., People v Hoffmeister, 394 Mich 155, 157, n 1; 229 NW2d 305 (1975), People v Carter, 395 Mich 434, 437-438; 236 NW2d 500 (1975) (second-degree murder always included in first-degree murder). In these polar cases of mutual exclusivity, the question of lesser included offenses is answerable by reference to the elements of the offense without an analysis of the facts of the particular case. But this is not always true. There are offenses which are neces*709sarily lesser included offenses of others as a matter of fact but not as a matter of legal or logical necessity. In such situations, it becomes necessary to elect between a purely legal and factual analysis of necessarily lesser included offenses:
"A necessarily included offense can reasonably mean a lesser offense which would always be committed when the main offense was committed. It can be decided in the abstract without any reference to an individual case; for example, assault is always found in assault with intent to kill. Conversely, it could also be one which, as a factual matter, was shown at trial to have been a method not identical to, but included within, the major crime. Thus felonious assault would be a lesser included offense of assault with intent to kill if the method of assault was use of a gun.” Koenig, The Many-Headed Hydra of Lesser Included Offenses: A Herculean Task for the Michigan Courts, 1 DCL Rev 41, 44 (1975).
In the Martin and Stewart cases, supra, the Michigan Supreme Court adopted the factual analysis of lesser included offenses. In both cases the Court held that convictions for possession and delivery of heroin could not both be sustained where there was no evidence of possession apart from the sale. On the facts of those cases, though not in all cases, possession was incident to sale:
"Testimony at trial indicated that a police informant brought [sic] 1/2 ounce of heroin directly from defendant. The defendant personally cut the heroin and delivered it to the informant. Defendant was charged in a two-count information with (1) delivery and (2) possession of a certain 15.62 grams of heroin. There is no dispute over the fact that it was the same 15.62 grams of heroin in each count.
"Possession of the heroin present in this case was that necessary to its delivery.
*710"On the evidence adduced at this trial, there is no doubt that unlawful possession was a lesser included offense of delivery.
"When the jury found defendant guilty of unlawful delivery of this heroin on the evidence in this record they necessarily found him in possession of it.
" 'It is elementary that the State cannot divide a single offense into several parts according to time and conduct and base separate prosecutions upon and impose separate punishments for the various necessary divisions of that single crime. * * *
" 'The possession of narcotic drugs is an offense distinct from the sale thereof. But in the instant case the possession and sale clearly constituted one single and same act. The possession, as legally defined, is necessarily a constituent part of the sale, as legally defined. Where the only possession of the narcotic drug is that incident to and necessary for the sale thereof, and it does not appear that there was possession before or after and apart from such sale, the State cannot fragment the accused’s involvement into separate and distinct actions or transactions to obtain multiple convictions and separate convictions under such circumstances will not stand. * * * The error is not cured by the fact that the trial Court permitted the two sentences to run concurrently. * * * The conviction and sentence upon the charge of possession must be set aside.’ State v Allen, 292 A2d 167, 172 (Me, 1972).
"A defendant may be charged and tried for each act that constitutes a separate crime. However, when tried for an act which includes lesser offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense.-The prohibition against multiple punishment for the same crime cannot be avoided by the form of the charge. 'The form of pleading cannot assume such importance that it will permit defendant to be convicted of both the included and greater offense.’ People v Greer, 30 Cal 2d 589, 599; 184 P2d 512, 518 (1947). Accord, United States v Belt, 516 F2d 873 (CA 8, 1975), cert den 423 US 1056; *71196 S Ct 790; 46 L Ed 2d 646 (1976).” People v Martin, supra, at 307-309. (Emphasis supplied.)
In Stewart the Court stated:
”In a given case, sale may be found without possession. Likewise, possession may be determined without sale. However, depending upon the facts developed at trial, when the circumstance of possession is not severable or apart from a sale and the jury concludes the defendant is guilty of sale, then the possession blends together with the sale so as to constitute one single wrongful act.
"Therefore, from the evidence adduced at this trial, the illegal possession of heroin was obviously a lesser included offense of the illegal sale of heroin. When the jury in the case at bar found the defendant guilty of the illegal sale of this heroin, they necessarily found him guilty of possession of the same heroin.” Stewart at 548. (Emphasis supplied.)
In the case at hand, the people concede that as a matter of fact, assault with intent to commit murder was a lesser necessarily included offense of felony-firearm. The felony of "felony-firearm” consists of two elements: a) carrying or possession of a firearm, b) while committing or attempting to commit a felony (other than carrying a concealed weapon). Where the carrying of a firearm is unrelated to the underlying felony, punishment for committing the underlying felony and also for carrying a firearm while doing so is not double punishment. But where a firearm is used to commit the underlying felony, the underlying felony is necessarily included in felony-firearm because it is impossible to commit a felony by using a firearm without at the same time possessing or carrying the firearm during the felony. Possession or carrying is necessary and incidental to use, just as *712possession of heroin was necessary and incidental to its delivery in Martin and Stewart. In such circumstances, only one conviction can be sustained.
I do not disagree with the goal of the Legislature. Discouraging the use of firearms in the commission of crimes is clearly a proper matter for legislative concern. However, the Legislature has attacked the problem in a constitutionally impermissible manner. By making felony-firearm an independent felony, the Legislature has undermined its own legislative intent. Most states which have enacted similar statutes have merely augmented the punishment for crimes in which a firearm is used,1 whereas in Michigan the Legislature has created a separate felony. Where, as here, a firearm is used in the commission of a felony, only one conviction can be sustained. Therefore if a defendant is convicted of the "lesser” underlying felony, he or she cannot be convicted of felony-firearm and the legislative intent, additional punishment for use of a firearm during the commission of a felony, is defeated. On the other hand, if a defendant is convicted of the greater offense, felony-firearm, he or she may only be imprisoned for two years for a first offense, five years for a second offense and ten years for a third offense— all of which are shorter sentences than could be imposed for conviction of many of the "lesser” felonies. Again the intent of the Legislature is defeated by the adoption of a statutory scheme which creates a separate felony rather than merely enhancing the punishment for crimes involving the use of a firearm.
In closing, I feel compelled to comment on what *713I believe to be a dangerous precedent set by the majority. By holding that double jeopardy questions are to be resolved through an examination of "legislative intent”, the majority essentially holds that the Legislature is free to determine whether its own acts are or are not violative of the protections afforded citizens by the state and Federal constitutions. Historically it has been the duty of the courts to interpret constitutional provisions and to determine whether a legislative act runs afoul of some constitutional guarantee. No matter how clear the legislative intent, a statute cannot deprive a citizen of fundamental constitutional rights. I readily concede that the intent of the Legislature is clear in the felony-firearm statute. However, even the clearest and best of intentions cannot save the statute from its constitutional infirmity. A legislative scheme which allows conviction of both the greater and the lesser included offenses deprives a defendant of the protections afforded by the double jeopardy clauses of the state and Federal constitutions.
See generally, Woofter v O’Donnell, 91 Nev 756; 542 P2d 1396 (1975).