To invoke the felony murder rule there must be proof a homicide was committed in the perpetration of or an attempt to perpetrate a felony and that the collateral felony was one inherently dangerous to human life. However, the felony murder doctrine is not applicable when the other felony is an integral part of the homicide. In such a case the collateral felony is said to have merged with the homicide and results in only one offense. The proper test for determining whether an underlying felony merges into a homicide is whether all the elements of the felony are present in the homicide and whether the felony is a lesser included offense of the homicide.
The trial court convicted defendant of two counts of child abuse, in violation of Kan. Stat. Ann. § 21-3609 (1987 Supp.) and one count of felony murder, in violation of Kan. Stat. Ann. § 21-3401, in the beating of a three-year old and the beating death of an 18-month old, both daughters of his girlfriend. Defendant appealed, contending that it was error to fail to dismiss the charge of felony murder because the child abuse charge merged into the felony murder and could not constitute the requisite collateral felony to support the felony-murder charge. The court affirmed defendant's conviction of one count of child abuse in the beating of the three-year old. The court reversed defendant's convictions of felony murder and abuse of a child in the beating death of the 18-month old and reversed that portion of defendant's case for further proceedings.
Did the trial court err in failing to dismiss the charge of felony murder against defendant because the child abuse charge merged into the felony murder and could not constitute the requisite collateral felony to support the felony-murder charge?
Because it was the state's theory that the 18-month old died as a result of a severe beating to her head administered by defendant from which she lost consciousness and drowned in the bathtub, the collateral felony of child abuse merged with the homicide and resulted in only one offense. A single instance of assaultive conduct would not support the use of abuse of a child as the collateral felony for felony murder when that act was an integral part of the homicide.