*1 48,072 Nо. Appellee, Kansas, Goodseal, Charles Charles State a/k/a Appellant. Jones, 279)
(553 P. 2d *2 Opinion July filed 1976. Gragert, Hiebsch, Michael Tinker, Wichita, argued D. Robbins and cause, appellant. onwas the brief for the Stephen Joseph, attorney, cause, M. argued assistant district and Curt T.
Schneider, attorney general, Sanborn, attorney, Christopher Keith district Randall, attorney, appellee. assistant district with him were on the brief for the The opinion of the court was delivered by
Harman, C.: This from a appeal conviction of first degree murder.
Appellant Goodseal, Charles known also as Charles Jones, was initially charged tried three counts separate arising the same incident: Unlawful possession of a firearm S. (K. A. 21- [1] [b]), aggravated robbery (K. S. A. 21-3427), and felony murder S. (K. A. 21-3401). The murder count charged homicide occurred during perpetration crimes of unlawful a firearm and aggravated At robbery. this first trial was appellant convicted of unlawful possession of a firearm (from which no has appeal been taken), he acquitted upоn aggra vated robbery count and the jury was unable agree as to the murder charge. a second trial Upon was convicted appellant the first degree, done the commission of a felony, Appel- conviction. unlawful firearm after review. lant the murder conviction here for brings In August, appellant revealed the following. The evidence reformatory Goodseal was released from the Kansas state industrial he had two counts serving imposed upon where been sentences December, 1973, left his home in Wichita to forcible rape. Denver, While there he stayed seek Colorado. employment friend, .38 Carl Davis. Davis testified handled a caliber appellant and that stated stay during revolver his Colorado appellant he, their return to Wichita automobile trip appellant’s appellant, had a in the car in Wichita December gun trunk. The two arrived 19, 1973. The met a whose real “Silky” next called day they girl was either Diana Warren or Dianna Coleman. The three name much of was to com- sрent day together drinking Silky gin. in a in Wichita working mence as a dancer club night topless called .22 She caliber Goldigger’s Lounge. displayed pistol which she her and said she another carrying purse gun hidden the club and that both were for her guns protection. *3 There were to ten at generally girls seven the club who dancers, worked as whom some of doubled as well as prostitutes. the club that told friend that he evening appellant At his Davis had a gun but Davis did not see him one at time any with the afternoon or Late in the evening. evening appellant early intervened in the argument between club bartender and the girl dancers, who was the manager of to offering help the the latter. commented, At one he “If I point you’re having some trouble agot heater back that will it my pocket straighten out”. homicide, Hunter, The victim of the Warren arrived at James
the m. lounge about 10:30 p. During evening he was seen talking Silky to and one fondled her At a point breasts. time when Hunter five dollars some of the paid get girls to pose Hunter, pictures bartender noticеd currency other his billfold. Davis and in the appellant time, remained until lounge closing which was 12:30 a. m. Outside the told lounge appellant Davis he was waiting give Silky ride home and that in car she was trick”, in the lot. Silky Davis assumed was parking “turning Appellant Silky would previously agreed appellant pre- tend to be her husband and her from the car so that pull she would actually have have sexual relations with man she was with. testified that after Appellant agreement this Silky handed him a .38 caliber revolver she said was not loaded. and went to the other automobile got out of his car
Appellant on but the motor lights in the lot. There no inside parking were butt, gun the back with the running. glass was Appellant tapped side opened passenger unlocked door and Silky appellant door. Hunter and in the back seat. out Silky Silky got were on immediately, pants asking appellant the car her pulling shoes. what he was with doing her asked Hunter get Appellant his “wife” and Hunter he had her. Hunter then replied paid pulled said, on “Hey, his turned inside out and pants, pockеts partially got money”. she testified he remembered my Appellant saying, wonder “No she wanted me to this little trick so she could play steal somebody’s money”. further testified he then bent Appellant shoes, snow, over to up Silky’s he into pick slipped bumped the door The bullet struck Hunter gun discharged. area, beneath his shoulder and armpit right penetrated lung causing his shooting death. version was was Appellant’s accidental and the he only gun reason took was to scare Hunter with it.
After returned his he he appellant car told his friend Davis had shot the victim in the chest. Davis had the shooting. witnessed As left area took appellant cartridge out of the gun threw The next away. day left for Denver and en route appellant he threw the gun away. Silky vanished after the shoot- immediately ing. Olathe, In January, Kan- appellant apprehended sas. Further evidence will be narrated in connection points at issue.
Appellant’s principal point upon is that the trial appeal court erroneously denied motions for new acquittal and trial because the offense of felonious possession of firearm is not inherently dangerous to human life therefore cannot be the basis for felony 21-3401, convicted, murder. K. S. A. under which appellant provides: *4 degree killing being “Murder in the is the a human committed mali- first
ciously, willfully, deliberately premeditation and with or committed in the perpetration attempt perpetrate any (Emphasis sup- to felony. or . . .” plied. ) Possession of a with a than twelve inches long firearm barrel less who within five years has been released from person imprison- ment for a is one form of unlawful of a firearm felony, possession and is class D felony (K. S. A. 21-4204 [1] [b] [2]). Here there that question is no within five after appellant years
491 his release from for a had in firearm confinement his hand felony with a a bullet barrel less than twelve inches at a time when long from that weapon argument caused Hunter s death. is Appellant’s this. He that to sustain a murder the says felony conviction life; collateral felony must to human inherently dangerous be one that this court rule in State v. recognized applied Moffitt, this 199 431 514, 879, Kan. P. 2d and held that unlawful of a possession firearm ex-felon by an to life as a inherently dangerous human law, matter further that in in reaching this conclusion Moffitt cited a line of California decisions unlawful holding aof firearm felony constitutes a human inherently dangerous to life and, shown, where causal connection is resulting homicide con- law; stitutes in felony murder the second under California degree that in 1971 the California this supreme court receded from posi- Satchell, 28, tion and People 6 Cal. 3d 98 33, Cal. Reptr. 1361, P. 2d 383, 50 ALR 3d ruled that the unlawful of a firearm felon, abstract, a convicted viewed in is not felony dangerous inherently to human life for purposes felony rule, murder and this court should similarly reverse its decision in and so hold. Moffitt first our statute does not
Appellee responds present require that a one to human in order felony be life inherently cannot At the support felony murder conviction. We agree. 1970, time was decided and our prior felony Moffitt statute (K. S. A. 21-401 1964]) provided: [Corrick “Every poison by lying murder which shall be committed means of or wait, by any willful, premeditated killing, kind or deliberate or which perpetration attempt any arson, perpetrate shall committed or an rape, robbery, burglary, felony, or other shall be deemed murder the first degree.” (Emphasis supplied.)
As a part of our new A. 1970 21-3401 criminal code K. S. Supp. provided: degree killing being “Murder in the is the malicious a human com- willfully, deliberately premeditation
mitted committed and with or perpetration attempt perpetrate any felony.” (Emphasis supplied.) Under context of this statute was to consider malice possible 1972, as a essential separate element of murder. felony statute was amended to its form present 1), (Laws Chap. § as already not an element quoted, indicate malice is essential murder, Clark, State v. following Kan. P. 2d 586, in which we indicated that the effect of the murder rule *5 of proving premeditation
is to relieve state of the burden is caused the killer while he by malice when the victim’s death is that the killer’s felony, being another the rationale committing felony. is сollateral malignant by proof established purpose resulting In we that a Moffitt, affirmed the rule homicide supra, life felony inherently dangerous from the commission of a to human Although murder in first degree. constitutes murder or felony statute has been twice amended since we have adhered our Moffitt 881, 251, In State v. 217 Kan. ruling. Bey, the same we said: felony required support . for all that is [T]o “. . a conviction prove inherently dangerous felony being that committed which life, to human result of the commission of the homicide was direct felony.” 5.) (Syl. para. Reed,
See also State v.
Hence we hold that the where necessary nature of the felony determination, are circumstances of its commission relevant factors in considering whether the particular felony inherently and foreseeably dangerous to human life so as con- support viction of felony murder. These are for the trial court questions decide appropriate cases. In case bar appel- lant’s own testimony was that he used the to' victim. pistol scare the However, there was no evidence he made any presentment in an pistol offer do corporal hurt to the victim so to amount as to an assault constituting integral of a murder part charge Clark, prohibited by State v. 460 P. 586. Under 2d appellant’s undisputed admissions the trial court in correctly effect held as a matter of law that the collateral felony, unlawful posses- firearm, sion was a sufficient basis for application murder rule. reaching contrary result the California court Satchell, People declined to take into supra, account the par- ticular circumstances of the collateral felony, rigid position decline to adopt. makes the
Appellant further broad assertion that application rule in his case constitutes infliction of cruel and unusual punishment and denial of rights of equal protec- tion and due process. The felony murder rule represents long standing policy this state. We have indicated its rationale already —to furnish an added deterrent to the of felonies perpetration
which, their circumstances, nature or the attendant create risk foreseeable of death. “The legislature, acting the exercise state, police power is empowered to enact measures in furtherance of the welfare and public and its safety, enactments in such areas are not to be curtailed judicially where they reason- ably relate the ends sought be attained. Classification hon- estly designed to protect the public evils which might other- wise arise are to be upheld unreasonable, unless they are arbitrary or oppressive” Weathers, (State v. Kan. Syl. & para. rule, 292). felony murder designed as it tois protect life, human sound represents public policy, related to reasonably the end sought to be accomplished is not im- constitutionally permissible.
Appellant next
contends
trial court
its
abused
discretion in
admitting into evidence several
photographs
the deceased taken
course of an
since he did not
autopsy,
seriously contest
the fact or cause of death during the trial. The pathologist who
*7
performed the
used the
autopsy
challenged
in
photographs
con-
nection with his
to,
trial testimony. He testified
and with the aid
of the postmortem
demonstrated,
pictures
effect
grazing
of
bullet wound indicating that
right
arm of the victim was raised
parallel with the shoulder and extended toward the front when
the bullet entered the body, and more importantly, the downward
path
bullet through the victim’s body, thus contradicting
appellant’s
that
testimony
the gun
when
discharged
he fell back-
wards next to the automobile. Under these circumstances the
photographs were relevant to illustrate and substantiate the pathol-
ogist’s testimony and
suffered
appellant
no prejudice in their ad-
mission. They were not of the shocking and
nature
repetitive
con-
demned in
State v. Boyd, 216 Kan.
pathologist’s testimony. Photographs, if relevant and material to matters in issue, merely they may not shocking rendered inadmissible are because or gruesome.” (Syl. para. 2.) Appellant contends the trial court in- respect erred to its struction on possession of a firearm. The fact earlier appellant’s not, course, conviction of that offense was made known to the instant jury target case. is instruction Appellant’s principal 4,No. stated: control, joint, temporary or “Possession means dominion exclusive or
permanent, revolver, say, possession is to over that a firearm within contemplation of the statute is exercise of thereof.” dominion Instruction No. stated: provide “You further are instructed that laws of the State of Kansas person having knowingly possession it shall be unlawful for a (12) long years
firearm with a barrel than twelve within after less inches five being rape imprisonment felony. felony.” from released Forcible is a trial counsel had this to on the Appellant’s say subject: possession custody “Like to have an on Instruction difference between custody possession. to the effect that there is a difference between terms present power right thing. person Possession is a to control A has the cutody property distinguished merely possession as where he has the right therefore, and, care of it or one who retains to control retains possession. constructive Like have that Instruction. object original instruction, again my “I [No. 4] reinstate in- possession opposed custody struction on difference I between as as read to yesterday.” the Court also Appellant submitted two written requested instructions follows: “ ‘Custody’ ‘possession’ distinguished delivery goods may are give ‘custody’ mere thereof while technical remains one de- livering goods. custody “Possession and To are convertible terms. constitute temporary custody mere is not sufficient.”
It should be borne in mind that determination of the sufficiency or adequacy given instructions in a case depend upon the particular evidence in that adduced case. now seeks to come within ambit of
Appellant
ruling
our
Neal,
State v.
496 until he defendant remained untouched and thereafter
closet the pawnshop it back to friend took girl it and with cleaned of our earlier decisions two reviewing After for pawning. concluded: Phinis, 472, v. Kan. together, [State Runnels 199 Phinis and taken “When Runnels, 513, fashion 251, 16] v. State 203 Kan. P. 2d and
430
handling
proscribed by
innocent
possession
the statute is
that the
rule
knowing
intent
to control
weapon
or
with the
but willful
management
that contained
This definition accords with
thereof.
the use and
Terms, p.
53.00,
Explanations
69:
Criminal, chapter
Definitions and
in PIK
“
knowledge
place
thing
Having
of and
or
‘Possession:
control over
Metz,
593,
v.
authority possess, its use control Knowles, held that both P. 2d we In State v. (b) S. A. 21-4204 (1) of a firearm under K. “possession” statute, 21-3701, A. con- theft K. S. “control” of property under in question (Syl. over the property note exercise “dominion” 1). para. here the instructions adequately
The real is whether question they think did. they Although might covered the We subject. did have been more worded define possession precisely they control, facts in terms of dominion and which was sufficient. The Neal those here. There the de- are clearly distinquishable it from the gun fendant’s was in only handling procuring friend girl it over to his wait- immediately turning pawnship it with ing cleaning returning outside in an automobile and in no he in any way her to the There was evidence pawn shop. gun appellant’s or control the Here attempted weapon. use mere “custody” own show did more than exert over admissions he testified he used to scare pistol. gun Most importantly, as a was more than the mere certainly weapon this use victim— casual, innocent or handling fleeting momentary possession argument referred to in some of our cases. prior Appellant’s and therefore Silky gun could have found owned *9 controlled it at the time death ownership of the victim’s equates and control and is fallacious because cases of unlawful of a firearm is not an essential element of ownership weapon Phinis, the offense and even immaterial v. (State supra; Potts, State 74). trial further contends the court erred
Appellant refusing oral him confession because was not suppress taped given and made was taken before a voluntarily prior appearance Kansas, Olathe, magistrate. was Sunday arrested late Appellant 6, 1974, evening, January upon charge gasoline. siphoning His giving of a fictitious name address аroused police suspicion and with the check was revealed he wanted consequence identity in Wichita on a murder He was charge. transported police 7, 1974, Wichita early Monday morning, and the January taped confession early was made afternoon of His day. the same before a was on appearance magistrate Tuesday, January 1974.
When was first in Olathe appellant arrested for siphoning gas arresting officer advised him immediately of his constitutional rights. then He was taken to the station he in- police where was terviewed a detective after a second advising rights. When this detective discovered true appellant’s and that identity he was wanted in Wichita for murder arrested him he charge and him again advised of his rights. constitutional On occasion he handed form entitled appellant printed Rights”, “Your contained the Miranda rights statement of provided space for their written read form Appellant signed waiver. waiver. He then told officershe killed a man in the parking lot of the Lounge in Wichita with a Goldigger’s .38 oaliber gun.
Three law officers from Wichita at arrived at jail Olathe about 5:45 a. tm. 8th. Monday, January They advised again ap- of his constitutional pellant rights conversed him for about six During minutes. this interview appellant stated he had killed a man shooting in Wichita but accidental. Appellant agreed then he would make a recorded statement when re- they turned to Wichita. the return During trip officers did not dis- cuss case with he appellant was free in the car. sleep Appellant request made no for food but was given trip coffee and a at a rest cupcake stop.
The officers and appellant arrived the Sedgwick county court- m., fingerprinted Appellant 7th. 11:15 a. January
house at where a detective’s ofiice taken to and then jail into booked *10 m. of the at 12:19 p. statement beginning recorded made tape taken again was was appellant the statement Before day. same he in his statement rights taped of his constitutional advised rights informed of those had been he acknowledged them. waived was not voluntary his confession taped contends
Appellant education; he had only grade He had sixth a number of reasons: food for two or three going without drinking heavily been arrest; he not nourishment given adequate was days prior made; did not have before the statement was he detention during taken, and he rest the before night recording adequate the officers were him asking ques- form because waiver signed them and he signing fast he did not understand believed tions so questions. form would stop con- a criminal a statement made accused proceeding In to the crime is admis- stituting guilt charged confession it the confession was freely unless made appears sible evidence of duress v. compulsion (State and not under voluntarily 432, Soverns, 516 P. In State McVeigh, 918). 213 Kan. 2d v. 215 775, 181, this to on custodial say interrogation: we had Kan. . . If such confession is made while the accused is under restraint “. officials, evidence of the confession is not admissible on law enforcement fully trial, clearly appear ad- unless is made to that the accused was rights, being advised, so the confession vised of his constitutional and after voluntarily guilt freely and under circumstances that afforded made procuring [Citations] no undue influence in the confession. obtaining “Coercion in a confession from an accused can be mental as crime, physical. determining In of a well as the voluntariness confession question in each case whether the defendant’s will was overborne confession; so, product if the confession cannot be deemed the time determining [Citation] of a rational intellect and a free will. the ad- missibility of a statement of the defendant obtained custodial inter- rogation weigh any conflicting trial court- must evidence and make its findings totality of If based on the the circumstances. there is substantial competent support findings evidence to the trial court’s that the defendant voluntarily, knowingly intelligently waived his Fifth and Six Amendment rights, findings appellate such will not be disturbed on review. . . .” (p. 777.) Creekmore, 96, In State v. P. 2d commented: 495 generally bearing “. . . Factors cоnsidered as on the voluntariness of interrogation; an accused duration and manner of the statement include the ability request world; of the accused on to communicate with the outside background; age, the accused’s intellect and and the fairness the officers interrogation. inquiry determining conducting the vol- The essential product untariness of a statement is whether the statement was the Generally independent free and will of the if accused was not accused. answer, deprived admit, deny of his choice to or refuse to the statement free voluntary.” (p. 934.) be considered “The at the mental condition of a defendant time makes a statement is is not relevant the issue of voluntariness but neces- conclusive; Brunner, sarily weight its is for trier of fact” (State 233). Kan. Syl. para. 2dP. It is the of the trial court a motion to duty suppress determine, instance, whether a confession has been made and without voluntarily coercion and the burden compulsion voluntariness is A. proving (K. 22-3215). on the state S. “When court, 22-3215, trial to the of K. S. pursuant A. conducts provisions *11 a on of an preliminary inquiry admissibility state- extrajudicial accused, ment an given by and determines the statement was freely, and voluntarily given and intelligently admits the statement trial, into evidence at the this on will appellate court review accept such determination if it is by substantial supported competent 265, evidence” (State Smith, 1, v. 216 P. Syl. 1215). Kan. 530 2d para. The trial held an court out-of-court type hearing Jackson-Denno on appellant’s motion to his and con- suppress taped statement cluded it was voluntarily given and admissible. Under the totality circumstances com- supported by decision is substantial petent evidence. Appellant fully rights was advised of on five his occasions, different by three different officers and in set- various tings. In each instance evinced understanding his appellant his his rights and to make a is willingness statement. There no claim or indication of in police cajolement or harassment order to break will and him appellant’s no time to break attempt by any off The questioning. officer saw no indication of alcohol arresting or drugs connection with The detective who first appellant. confronted with the he appellant charge testified did not believe was appellant drugs; under the influence of alcohol or that there was no impairment speech or walking ability no signs mental incapacity. Other officers testified he talked freely, understandingly, any without or compulsion promises kind. any Although he did not much of his get night sleep arrest, he car was allowed to rest in the Wichita. trip on He
500 more it appears meal the interim but missed one full may have v. In State request. given upon would have been nourishment 643, under Law, 320, considered the evidence 214 P. 2d Kan. 522 a rejected con- given statement was incriminating which an assertion based defendant’s tention of involuntariness stop questioning. a waiver order to signed rights before appearance What about the factor delay appellant’s Olathe, evening in He arrested late magistrate? Sunday was the next state early morning, gave taрed to Wichita transported a magis ment afternoon and first before appeared next early following delay trate He unreasonable day. asserts was K. S. A. given the statement was because prejudicial meanwhile. be taken before 22-2901 mandates that after arrest accused stat magistrate unnecessary delay”. purpose “without is charge ute is held on proper to insure arrested person possible opportunity and to to such the earliest person secure 249, 252, 519 714). v. 214 Kan. P. 2d (State Nading, bail any this court unwarranted Although disapproves delay arrested, after taking magistrate before a he has been a prisoner in some delay process in itself denial of due unless has v. Gid way of the accused to fair trial right (State prejudiced 14, delay 531 P. 2d dings, Syl. para. 445). Whether on the facts circum depend is unreasonable must prejudicial stances case. of each State, delays days
This court ruled that of six v. (Underwood has State, v. 457), days Kan. P. 2d thirteen (Cooper Kan. and two over a weekend 652) days (State dеlay at bar the Nading, supra) prejudicial. were not the case brought less than one after actually day appellant *12 Wichita. The statement his challenged prior appear- was made However, statement, magistrate. ance a this taped except before details, as he had essentially for elaboration same as twice Olathe—first to the Olathe detective when he given Sedgwick county and a few hours later to arrested for murder again and been jail, challenge officers at the Olathe no has against willing made. at all times to discuss completely seemed Appellant rights affair and in of Miranda repeated warnings view a there reason believe that an earlier before appearance is no A similar changed willingness. very would have magistrate Law, v. rejected this was made and argument supra, on score in State trial defendant had where the court excluded testimony two magistrate given not been before a until after had taken written confessions had over custody thirty-three and been hours. the trial court we said: upholding illegal during period “This court has held that a confession obtained a voluntarily product detention is not if made and not inadmissible say, approve detention. Needless we do not of unwarranted [Citations] delay suspect however, any taking proper magistrate; as to before issue freely voluntarily product whether defendant’s confessions were made or delay taking magistrate him was resolved the trial court.” before (pp. 650-651.) No all prejudice delay has been and under the cir- shown cumstances the not in admitting trial court did err state- appellant’s ment into evidence. next
Appellant contends the trial court erred to instruct refusing jury on lesser included second murder degree offenses of Reed, 562, and involuntary In State v. manslaughter. Kan. trial 21- duty noted court’s under K. S. A. to instruct on a (3) only lesser included offense arises where there is evidence under which the defendant might reasonably indicated, have been convicted of already the lesser offensе. As under felony murder rule the felonious conduct itself held is malice, tantamount to the elements deliberation and premedita- murder, tion which are degree otherwise for first and if required proof adduced the trial that committing the accused was a felony inherently to human life and the homicide was a direct result of that then felony, only conviction can possible be that of first murder -under the degree felony murder rule (State Reed, supra, Masqua, State v. 210 Kan. 502 P. 728). 2d however, The oases of Reed and were Masqua distinguished, case of recent State v. 548 P. 812. Bradford, 2d There this court decision upheld trial court’s to instruct the on jury lesser included degree though offense second even charged defendant was murder. The court’s rationale was as follows: distinguishable Reed “The of this circumstances case are from those in Masqua. In those cases the evidence was uncontradicted that a had conflicting testimony. There was no This court held
occurred. therefore Masqua guilty not have found Reed that because the not could they charged, yet guilty the felonies with which were of the murder charged, degrees inappropriate. instructions on were lesser homicide hand, conflicting presented “In the case at evidence was whether felony charged, robbery, occurred. . . . *13 case, the commission felony the evidence of “Ordinarily, where in a degrees of uncontroverted, on lesser felony no instruction is clear of the conflicting where, here, evidence as given. there But should homicide support a con- felony, will the evidence and where to the commission appropriate homicide, lesser degree on instructions of a lesser viction given.” 342-343.) (pp. degrees should be undisputed at bar clear in the case Was the evidence a fire- of unlawful felony committed the the appellant homicide felony arm, the commission of and that supplies said already been of that which was committed? Much has testimony own Appellant’s this question. an affirmative answer to evidence the victim and all the to scаre pistol was that used the menacing in a fact use the pistol the conclusion he did in compels have been discharge may its though fashion as even weapon any on facts instructions accidental. these Under uncontroverted improper. lesser would have been degree homicide trial failure permit court’s Finally, appellant complains conviction. fix to be assessed upon jury punishment Murder court as life imprisonment. Instead the fixed punishment A K. A. 21-4501 degree provides: is a class S. felony. following purpose sentencing, of felonies terms “For the classes imprisonment for each class established: authorized are imprisonment “(a) A shall be death or Class the sentence for which punishment jury jury shall life. If trial shall determine which there is be inflicted. . . .” At trial appellant’s The no merit. the time of complaint has death in Kansas had been abolished penalty judicially A or choice to longer a class case no function felony any Randol, v. (State conviction perform fixing penalty upon fixed the only рermissible 212 Kan. The law 248). matter for the trial court. declaration was a its punishment is affirmed. judgment BY APPROVED THE COURT. majority’s disposition I concur with the J., (concurring):
Kaul, record these- observations. but feel compelled this appeal, court 514, 431 P. a unanimous Moffitt, 2d State after a convic- pistol established firmly inherently 21-2611 a felony tion in violation of K. S. A. constituted held: dangerous Moffitt, to human life. In felony’ in S. A. includes the created “The term ‘other K. 21-401 felony) (possession pistol conviction of a K. S. A. 21-2611 of a after inherently life, to be human is held and where the evidence dis *14 felony a causal such and the closes direct relation between the commission of homicide, charge sustain a conviction on a of in it is sufficient to murder the degree, proof though not an of S. A. 21- even intent is element in K. (Syl. (Emphasis supplied.) 6.) 2611.” Moffitt, our in of gist holding concerning application The of rule, court in was reaffirmed a unanimous felony-murder by State 535 2d 881. Bey, P. said, in 1967. I it without dis- was decided think be
Moffitt that it is a of that firearm homi- pute, knowledge matter common cides, felons, committed have since by dramatically increased even decision. Our has examined criminal legislature our Moffitt code on several to alter occasions and found no reason the Moffitt circumstances, me, Under the to that appears rule. modification or reversal our a grave of unanimous decision in would be Moffitt mistake. dissenting: I J., respectfully dissent from that
Prager, of portion which majority opinion holds that mere possession aof firearm S. contrary to K. A. 21-4204 (1) (b) may used to an convert accidental or nonmalicious killing to murder in the first degree by application felony-murder rule. murder typical case in order for a defendant h> be convicted murder in the first de- it is incumbent gree upon the state to that prove the defendant killed his victim maliciously, willfully, and with deliberation and premeditation. Murder first degree is punishable life by under our imprisonment present statute. The opinion majority correctly points out felony-murder that the rule designed to relieve the state of the willfulness, burden proving premedita- tion, deliberation, and malice when the victim’s death is caused by the killer while he is committing another felony. The rationale behind the felony-murder rule is malignant that killer’s purpose is by established proof the collateral felony. majority opin- ion that correctly declares all felonies are not sufficient permit application felony-murder rule. In for the felony- order murder rule be applicable, the collateral felony be one must inherently life, or forseeably dangerous human a sustain conviction for rule, first degree under that it must be shown the homicide committed was a direct causal result the commission of such At felony. this I am in point complete agreement with the majority.
The basic issue in this case is whether presented not the mere unlawful of a a convicted felon possession contrary firearm A. K. S. 21-4204 is the which (1) type felony reasonably (b) rule to a permits application felony-murder killing is accidental or nonmalicious. I wish to emphasize beginning firearm by offense of unlawful of a convicted is K. S. part felon of our criminal code. A. 21-4204 important of a firearm with a (1) (b) substance provides who, barrel than twelve-inches within five long person less such been convicted of under years preceding felony violation has Kansas or or has been released any jurisdiction laws of other D which under prison penal is a class our for a penal code confinement institution punishable nor minimum term not than more than year variable less one The law of ten is well de- years years. three and maximum term *15 by to the from the use of signed public improper firearms protect The to concede that majority opinion appears convicted felons. in of K. S. A. 21-4204 in unlawful of a firearm violation possession an fores act inherently eeably dangerous the abstract is not or unless of its make it so. Such rule is the circumstances commission a the that the of possession based it is not logically upon assumption it is rather dangerous the firearm which is but the handl- inherently may inherently which is of the firearm which be ing the use made rule. felony-murder to the of the justify aрplication so as dangerous by us this case was determined the Supreme The issue before Satchell, 6 of C. 3d 98 People Court California 1361, A. L. 383. In the R. 3d that case Rptr. Cal. rule is a felony-murder highly that the pointed California court out “it that should not be extended be- artificial and warned concept to serve.” The court function that it is any designed rational yond to the as whether a is inher- felony that determination further held be felony-murder of the rule must ently dangerous purposes not on felony in the abstract and an assessment of based that neither of a It concluded possession facts case. particular con- firearm a who has been person a concealable by of previously of a such by any weapon nor felony possession person of victed a dangerous to human felony inherently shotgun as a sawed-off is a that a It concluded rule. felony-murder life for purposes in the merely engaged homicide while who a perpetrates person be firearm may of a possession commissiоn crucial state mental unless existence of convicted murder aforethought malice is It is actually proved by prosecution. that we important California closely examine the rationale of the court in Satchell where court stated: criminally range “It is manifest activities are antisocial punishable very felonies, as felonies in this state is wide indeed. Some of these another, against person distinctly such as certain well-known crimes propensity part manifest a for acts to human life on the of the perpetrator. just distinctly pro- . Others . . fail to such a manifest pensity. Surely person it cannot that a a crime be said who has committed category, weapon, pre- in this latter when he arms himself with concealable danger significantly presented sents a human life so more extreme than that by similarly justify imputation a non-felon armed as to to him of malice Accordingly, if a homicide should result. because can conceive of such grossly impute illogical vast number of situations wherein would be mаlice, previously we must conclude that the violation of section 12021 one felony inherently dangerous convicted of a is not itself to human life support degree felony-murder (pp. 40-41.) which will a second instruction.” The California court of a firearm recognized possession itself, act which in passive and of is not inherently dangerous. becomes weapon when it is used in such a inherently dangerous manner as to endanger human life. The California court its opinion stated as follows in this regard: “Viewing standpoint danger, matter from of inherent we find it diffi- any passive possession cult to understnad of mere how offense be consid- can supply prosecution. sure, ered the element of malice in a murder To be if extremely manifesting is of such reckless nature a conscious dis- regard life, imputed by for human malice means of basic murder
principles. Moreover, passive possession ripens . . . if into felonious danger inherent, purpose felony- act in which life is human application murder rule is served its it is the of such deterrence acts —for designed accomplish. However, felons which the rule is mere ignoring propensities possessor conduct essen- *16 itself— —is tially aspect neutral in its intentional and should not serve the basis for as imputation (pp. 42-43.) the of malice.” The rule adopted the in the case us is before not majority sound for several In the in reasons. it is place, my judgment, a rule which would be for the trial impossible courts of this state to apply. The majority states that opinion where doubt as to exists whether in a particular case unlawful a firearm possession of inherently dangerous, there is in nothing wrong considering both the nature the offense in the abstract and the circumstances of its commission determining whether the offense was inherently to human in the life particular case. The majority has furnished opinion no guidelines to assist the trial court in in- burden a difficult my places judgment the This structing jury. adopted the rule in applying this state courts of the district upon the majority. con- a serious result in also may opinion The rule majority first-degree in a that of law the principle established flict be properly rule felony-murder the murder prosecution integral is an part it upon invoked when is based 586; Clark, State v. Kan. the homicide. (State the followed Fisher, The rule 291.) 243 Pac. only to consider not the the trial court and requires majority also the in the abstract but the unlawful possession pistol in determining the is handled or used in which pistol manner to life. human inherently dangerous whether now majority upon the case before us the relies fact scare the deceased and had a his hand in order to defendant gun In order avoid a involuntary him into action. to coerce thereby Clark, State v. opinion conflict with rule of supra, majority the defendant made any that there was no evidence emphasizes hurt an offer to do presentment pistol .corporeal victim so as to amount to an an constituting integral part assault the murder Clark. charge implica- The clear prohibited by tion is if the defendant had assaulted deceased actually then the felony-murder with а rule would not been gun, have in that since situation the assault would have been applicable integral part of homicide. It would seem follow that if defendant unlawfully firearm does not commit an possessing him, assault his accidentally victim but kills then he bemay If, however, found guilty felony-murder. assaults his victim then the rule felony-murder cannot be and in order applied convict the defendant of murder the state must prove defendant intentionally and with malice committed the homicide. of this irrationality distinction is obvious on its face.
Furthermore, the practical I wish to out that point application can majority produce of the rule other absurd approved by defendant, For us that a been having results. let assume example, check, an insufficient previously felony writing convicted fund against himself and his crim- purchases protect firearm family drops gun, causing inal of his home. He accidentally invaders to strike floor and be home. discharged, killing guest felony, Since occurred commission of a killing would inter- unlawfully, precluded defendant gun *17 the defense posing adopted of accident. Under rule majority defendant murder in the first degree would be of guilty the state possibly subjected a term of life imprisonment penitentiary. farm
Another lad served in the Vietnam war and at example—a the time of his automatic rifle which he discharge obtained an took to his farm gun home. He wanted the not for the only protection of himself and family also of killing but for use predators that might attack his K. livestock. Under the of S. A. provisions 21-4201 E is a (1) (g) class for any person possess firearm of capable discharging automatically more than once aby function single An trigger. intruder comes the defend- upon ant’s intruder, farm. The defendant gun points directing him to get off his gun place. discharges and kills accidentally the intruder. The rule in this adopted by case would majority to convict require the defendant of in the murder degree since at the time the killing of the defendant was com- another mitting felony possession of an automatic weapon — —at time the took killing place. One A having more should suffice. defendant been example pre- viously convicted of a shoots another felony accidentally person. At the time defendant was in of a firearm with a barrel eleven-inches rule the long. felony-murder defendant Applying would be guilty murder and conviction a life sen- imposed. tence would If firearm involved in the case had a barrel twelve-inches long guilty defendant would not be any criminal offense since the accidental shooting was and would fall into the of an excusable homicide. It does category not seem reasonable malice to the defendant in the first impute situation situation; and not to do so in the second absurd result would yet this follow under the rule in this adopted majority the court case.
I have out these irrational it is to pointed examples show how use the unlawful a firearm as a possession of basis for application felony-murder rule. want to I the fact that the emphasize California rule does prevent prosecution cases Satchell, such as People the one now us. supra, before merely holds malice not be from the act imputed passive a weapon. The state may properly prove basic elements premeditated murder where the evidence establishes that the firearm was used convicted felon in such manner *18 malice, willfulness, jury The could premeditation.
as show and to first-degree of murder. convict the defendant properly then adopted, be it the should Assuming majority rule defendant and the grant this case still to reverse necessary would be the has taken posi- the majority a trial. out above new As pointed abstract is not suffi- of a in the firearm felony possession tion For the doctrine. felony-murder to the of cient justify application the the of firearm to be felony-murder applied possession the rule to inherently be under such circumstances as be must would, an require to rule of majority necessity, human life. should jury felony-murder the that before the rule instruction to of case be it must find that factual circumstances the applied the crime. Absent felony inherently dangerous made possession permitted such a be use jury instruction the would qualifying the suffi- of of firearm passive nondangerous type possession felony find In this guilty cient basis to defendant of murder. the jury the that if the defend- qualification case was instructed without if was in the com- ant killed the deceased such done killing of unlawful of firearm he should possession mission the not be the first were degree. They found murder guilty take the circumstances instructed into consideration factual case. would present majority appear Even opposed this result.
I with disagree majority further the reason that opinion in the case the judgment presented under the evidence my to an instruction on lesser offenses defendant was included entitled of homicide. The offered defendant tended testimony shooting accidental as a of his in the slipping show result snow, causing gun discharged. into the door to be bumping that he just The defendant testified received gun from who it was loaded and that Silky only said not purpose it. scare with taking gun was to the man Such evidence of a willful and mаlicious negates killing pre- presence necessary degree. my meditation murder prove it instruct was error for the trial court in this case to judgment theory on the murder rather than jury premeditated on and in its to instruct the lesser included failure justified theory offenses which were under evidence the defense. dissent, taken it
In view that has been in this position 514, 2d 431 P. Moffitt, follow that State v. would logically 879, should be overruled. to a on great People relies extent Moffitt Ford, 892; 772, 620, v. People 60 C. 2d 36 Cal. 388 P. 2d v. Rptr. Williams, 647; 7, 63 C. 406 P. and People 2d 47 Cal. 2d Rptr. Robillard, 88,10 v. 83 A. L. R. Rptr. C. 2d Cal. 2d 1086. Those California cases held unlawful felon pistol by supporting felony- convicted capable murder instruction. of those cases was considered and The rationale Satchell, rejected by People the California Court in Supreme for the supra. should overruled this court only Moffitt reason that relied California decisions which are no longer the law but also basic because the rationale of the case is not sound legally inherently unjust.
For the reasons set forth I would above reverse this case that a new directions trial be granted.
Fromme join in JJ., the foregoing dissenting opinion. Owsley,