concurring and dissenting: I concur in the reversal of the case and the granting of a new trial. I respectfully dissent from the holding of the court that there was sufficient evidence presented at the trial to establish the offense of aggravated kidnapping under K.S.A. 21-3421. The factual circumstances in the case are set out in the majority opinion. It is clear from the record that the defendant, Cleophas Phillips, had been drinking and was highly intoxicated. Unfortunately, he had a gun. It is undisputed that Phillips was extremely angry because Michael Mitchell had been trying to seduce Phillips’ ex-wife and sister. At Phillips’ insistence, Jenkins drove Phillips to the home of Michael Mitch*376ell. Once there, Phillips went to the door and got Mitchell out of bed, saying they needed to talk. Phillips did not display the gun to Mitchell at that time and the two of them returned to the truck voluntarily. Mitchell sat down on the curb with Phillips and the two of them talked for a short time, while Jenkins remained in the truck. At this time, Phillips and Mitchell went to the back of the truck and had a short conversation. The two of them came around to the driver’s side of the truck in which Jenkins was sitting. Phillips told Mitchell to get in the pickup and brandished the pistol for the first time. Mitchell got into the truck and thereafter Phillips proceeded to strike Mitchell repeatedly in the head with the pistol and a whiskey bottle. Phillips was standing outside the open door on the driver’s side with Mitchell in the seat partially out of the truck. Jenkins told Phillips to stop hitting Mitchell, but the defendant ordered him away. Defendant then hit one more blow to Mitchell’s head with the pistol and the pistol fired the fatal shot. Jenkins testified that it appeared to him that Phillips had no intent to fire the gun and that the discharge of the pistol surprised him. Phillips appeared shocked, immediately propped Mitchell up in the pickup, and then drove the truck to the hospital. Unfortunately Mitchell died.
On this evidence the defendant was convicted of felony murder and aggravated kidnapping. I cannot agree with the majority opinion that this evidence was sufficient to establish a kidnapping on the part of the defendant Phillips, as a basis for the application of the felony-murder doctrine. Essentially the same problem was presented in State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976). As noted in Buggs, K.S.A. 21-3421 requires that the taking or confinement be accomplished, not only by the prescribed means (i.e., “by force, threat or deception”), but also with the specific intent to accomplish one of the four objectives listed. In my judgment, the act of forcing Mitchell into the truck was a movement or confinement which was slight, inconsequential, and merely incidental to the commission of the crime of battery. The beating in this case was accomplished in the presence of a nonparticipating witness, Jenkins. The beating could have been accomplished just as easily in the street as by placing Mitchell in the seat of the truck. In my judgment, to place the offense in this case in the category of felony murder is not only grossly unjust but is a violation of the rationale set forth in Buggs. I, therefore, respectfully dissent.