concurring.
The principal opinion appropriately points out that Missouri v. Hunter, 459 U.S. 359 (1983), authorizes cumulative punishment for the same conduct if the legislature clearly indicates its intent so to punish. That case involved the armed criminal action statute, former § 559.225 (repealed 1977; current version at § 571.015, RSMo 1986). Hunter held that statutory provisions proscribing the same offense “ ‘are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.’ ” Hunter, 459 U.S. at 366, 103 S.Ct. at 678 (emphasis original) (quoting Whalen v. United States, 445 U.S. 684,100 S.Ct. 1432, 63 L.Ed.2d 715 (1980)). The very purpose of the armed criminal action statute is to authorize additional punishment for those using weapons in the perpetration of crime. Section 556.041, RSMo 1986, discussed in the principal opinion, likewise indicates a legislative purpose of punishing offenses having different elements, even though they arise out of the same set of facts.
I am forced to write separately, however, because the principal opinion fails to deal adequately with the problem posed by Moore v. Wyrick, 766 F.2d 1253 (8th Cir.1985) cert. denied sub. nom Armontrout v. Moore, 475 U.S. 1032, 106 S.Ct. 1242, 89 L.Ed.2d 350 (1986), in which a Missouri conviction was set aside because it was based on a change in the construction of the felony murder statutes, without legislative sanction. This Court had affirmed a felony murder conviction in which a tavern patron shot and killed another patron after the defendant and others undertook an armed robbery. State v. Moore, 580 S.W.2d 747 (Mo. banc 1979). The holding overruled State v. Majors, 237 S.W. 486 (Mo.1922), which held that the felony murder rule may be applied only if the defendant or an accomplice is the killer. The federal court cited Calder v. Bull, 3 Dali. 386, 390,1 L.Ed. 649 (1798), for the proposition that due process precludes judicial construction which “aggravates a crime, or makes it greater than it was, when committed.” Moore, 766 F.2d at 1255.
A question might be raised under Moore v. Wyrick about a holding so patently in conflict with State v. Neal, 514 S.W.2d 544 (Mo. banc 1974) and State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970). A court may be forced to perpetuate an erroneous decision on criminal law, unless there is subsequent legislative sanction. Section 556.041 provides that sanction. Thus we are free to apply the Hunter principles unencumbered by the prior decisions.
The trial judge thought that the defendant should serve a term of 45 years. He could easily have accomplished this result by making the sentences for assault and attempted robbery concurrent. See §§ 565.050; 558.011, RSMo 1986. That would have eliminated the problem.
With these observations, I concur.