concurring and dissenting.
Because it has been changed and is generally in accord with the views which I heretofore expressed and appended to 1993 Opinion No. 83, issued by this Court on July 27,1993, which is today withdrawn and replaced with the above opinion, I concur in Part I, and also concur in the section of the opinion vacating the conviction for “attempted felony-murder.” 125 Idaho at 601, 873 P.2d at 855 (1994). As to the remainder of the majority opinion, I suggest that the Court reconsider, and advance the following analysis.
THE COURT SHOULD FORTHRIGHTLY ADDRESS THE CHALLENGES TO THE GIVEN JURY INSTRUCTIONS IN A LOGICAL FASHION.
Pratt challenges ten jury instructions. The majority casually disposes of these challenges in one short paragraph wherein it asserts without discussion that the jury instructions do not misstate the law. In my view, where, as here, the stakes at issue are not insignificant, the Court should specifically address all issues on appeal which have been properly raised, unless such discussion is unnecessary to a resolution. Here, Pratt’s challenges to the jury instructions were properly raised; had he prevailed on any of those challenges the outcome of this case could be different, and in my view would be. No reason is advanced which sustains the majority in not fully deciding all issues; it is only in that manner the litigants and the public will have the benefit of the Court’s reasoning. Only in that manner will we also avoid the impression that we are making decisions which may be regarded as result-oriented. See Matter of Aragon, 120 Idaho 606, 612, 818 P.2d 310, 316 (1991) (Bistline, J., specially concurring). Additionally, in setting forth the underlying basis for our decisions we will provide guidance to the bench and bar for future cases, a significantly important function of any Court, and one that is sometimes neglected in the attempt to keep up with the ever-burgeoning appeal docket. Moreover, what may appear to interest readers as an apparently indifferent treatment of these important issues by the majority may effectively deprive Joseph Pratt of a meaningful appeal. Otherwise stated, is not Joseph Pratt entitled to a full explanation of the majority’s rejection of the arguments which he asserts entitles him to a new trial? Ordinarily the opinion of the Court are carefully crafted with a view to*602ward gaining or maintaining credibility in the eyes of the litigants and the general public. Properly raised issues are deserving of being addressed.
Facially, Pratt’s challenges to the giving of instructions regarding the killing of a peace officer were well founded. As noted by the majority, the United States Forest Service officer was not a peace officer for purposes of I.C. § 18 — 4003(b). Accordingly, instructions numbered 26, 30, and 37, which addressed the killing of a peace officer, should not have been given to the jury. But, they were given and could not but have worked an unfair disadvantage to both Pratt defendants.
Pratt also argues that instruction 60 was an incorrect statement of the law. That instruction reads:
The Felony Murder Rule does not include any element of intent; a Defendant who participates in a felony can be held responsible for the death of any person killed during the commission of the felony, regardless of the individual’s intent that a death occur, unless you find the killing to be otherwise excusable or justifiable.
Pratt argues that a prerequisite to felony murder is that there must be a murder, I.C. § 18-4003(d), and in order for any murder to occur there must be an intent to kill. The problem with his argument is that murder requires “malice aforethought,” not necessarily the intent to kill. I.C. § 18-4001. Malice aforethought may be express or implied. I.C. § 18-4002. Intent to kill is express malice aforethought. Id. With felony murder, however, malice aforethought is implied from the fact that the killing took place during the commission of a felony. State v. Lankford (Mark), 116 Idaho 860, 866-67, 781 P.2d 197, 203-04 (1989) cert. den. 497 U.S. 1032, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990). Thus, I agree with the majority that jury instruction 60 correctly states the law.
Pratt next argues that instruction 32, which states that a “killing is unlawful if it was neither justifiable nor excusable,” was misleading because it implied that a nonjustifiable or inexcusable killing must be murder. Of course, manslaughter, a lesser included offense in this case, is also an unlawful killing. Pratt’s concern is unfounded, however, because instruction 57 informed the jury that if it “was satisfied beyond a reasonable doubt that the killing was unlawful, but without malice, [it] must determine and state in [its] verdict whether [it finds] the killing to be voluntary or involuntary manslaughter.” Further, instruction 58 advises the jury that, should it decide that the killing was unlawful but entertains “a reasonable doubt whether the crime was murder or manslaughter, [it] must give the Defendant the benefit of such doubt and find it to be manslaughter.” Upon a close reading of instructions 32, 57, and 58 together, it can only be concluded that the jury could not have been misled into believing it was required to return a murder verdict if it found the killing to be unlawful.
Finally, Pratt argues that there are “inherent conflicts” between instructions 31 and 36 and instructions 83, 84, and 87(a). Pratt argues these instructions allowed the jury to convict both Pratts - of felony murder even if the jury found his brother shot the United States Forest Service officer in self-defense. Pratt does not explain his theory further and, after independently reviewing the instructions, I cannot see how they could be read as Pratt suggests. In any ease, if those instructions were somehow ambiguous, the district court’s instruction 60 clearly states that a person is not guilty of felony murder if the jury finds the killing to be “otherwise excusable or justifiable.”
Although I ardently maintain that the majority should have undertaken an analysis of the instructions, I concur in the majority’s conclusion as to the district court’s instructions 31, 32, 36, 60 83, 84, and 87(a). I dissent as to the majority’s conclusion concerning instructions 26, 30, and 37.
I.C. § 19-2132(e), WHICH FORBIDS A JURY FROM CONSIDERING A LESSER-INCLUDED OFFENSE UNTIL IT UNANIMOUSLY AGREES THAT THE DEFENDANT IS NOT GUILTY OF THE GREATER OFFENSE, UNCONSTITUTIONALLY RESTRICTS THE DEFENDANT’S RIGHT TO A FAIR AND IMPARTIAL JURY TRIAL.
Because the majority “fails to see how [I.C. § 19-2132] subsection (c) has changed *603the jury’s power to find a criminal defendant guilty of a lesser offense,” I will attempt to explain it for its benefit and that of the interested reader. 125 Idaho at 600, 873 P.2d at 854. The statute decreases a jury’s power because from the beginning of statehood (over one hundred years ago) until the 1988 amendment to I.C. § 19-2132 the jury could consider a lesser included offense if the jurors did not unanimously agree that the defendant was guilty of the greater charge. After 1988, I.C. § 19-2132(c) forbade the jury from considering the lesser included offense until the jurors unanimously agreed that the defendant was not guilty of the greater offense. Thus, in those cases where some but not all of the jurors have a reasonable doubt as to the defendant’s guilt as to the greater offense, the jury may not go on to consider the lesser included offense, as it could have before 1988. Obviously, until the jury is allowed to consider the lesser included offense it cannot return a verdict based upon the lesser included offense.
The intent of the 1988 amendment is twofold. The first goal is to obtain more convictions on the greater offense by presenting juries with an all-or-nothing choice (because there will be fewer cases where the jury will be able to consider the lesser included offense). Thus some of those jurors who have a reasonable doubt as to whether the defendant committed the greater offense may be pressured to vote to convict on the greater offense rather than continue deliberating until the court declares a hung jury. The second goal is to obtain hung juries in those cases where the jurors who have a reasonable doubt as to the defendant’s guilt are not pressured into returning a verdict on the greater offense. Apparently, the State would rather have a hung jury as to the greater offense than a conviction on a lesser included offense because with a hung jury, it has the option to retry the original charge. If the jury returns a verdict of guilty to the lesser included charge, the State is barred by the double jeopardy clause from retrying the greater charge. Green v. United States, 355 U.S. 184, 192, 78 S.Ct. 221, 226, 2 L.Ed.2d 199 (1957) (defendant charged with first degree murder but convicted of second degree murder could not be retried for first degree murder after second degree murder conviction overturned on appeal).
However arguably laudable these goals may be, the enactment of I.C. § 19-2132 violates our state constitution wherein it diminishes the jury’s power as it existed at the time of the adoption of our constitution. As the majority itself notes, art. 1, § 7 of the Idaho Constitution provides that “[t]he right of trial by jury shall remain inviolate.” That clause guarantees the right to a jury trial as it existed at the time of the adoption of the Constitution. Christensen v. Hollingsworth, 6 Idaho 87, 93, 53 P. 211 (1898). Because at the time the Constitution was adopted a jury could consider whether to convict on the lesser included offense whenever it did not unanimously agree that the defendant was guilty of the greater offense, the 1988 amendment to I.C. § 19-2132, which abrogates that power, constitutes a clear violation of art. 1, § 7 of the Idaho Constitution. Accordingly, every conviction on a count wherein a lesser included instruction was given should be reversed and a new trial ordered.
Finally, because of a strong and unyielding belief that the cause should be remanded for a new trial, I express no opinion on part IV of the majority opinion wherein it upholds the sentence imposed.