Solly Thompkins asserts that the district court had no jurisdiction to instruct on first-degree premeditated murder. He also reasons that felony murder and premeditated murder *626are no longer the same offense. The majority locates a due process issue and reverses. I disagree with both Thompkins and the majority. Thompkins neither raises a due process argument regarding the premeditated murder instruction nor establishes that he was prejudiced in advancing his defense. He was not surprised by the instruction.
I would affirm Thompkins’ conviction for premeditated murder. Count I of the information charged Thompkins with, first-degree felony murder, citing K.S.A. 21-3401. Felony murder and premeditated murder are alternate theories of first-degree murder although different punishments are now provided. They are not separate and distinct offenses but are alternate means of committing the same crime. When Thompkins was bound over on the first-degree felony murder charge, the court retained jurisdiction to instruct the jury on either theory. The State had authority to amend the complaint under K.S.A. 22-3201(e) to include premeditated murder. The cases on the alternate means character of murder, cited in the majority opinion, reflect our consistent endorsement of murder as one offense. See State v. Starr, 259 Kan. 713, 718, 719, 915 P.2d 72 (1996), for a recent affirmation. How can premeditated and felony murder be separate crimes when there is only one homicide? First-degree murder has unique characteristics forged both by legislative action (K.S.A. 21-3401) and our decisions.
The questions at the preliminary hearing were: (1) Was a felony committed, and (2) is there probable cause to believe Thompkins committed it? Thompkins was properly bound over on first-degree felony murder.
Thompkins failed to object to the premeditation instruction at the instruction conference. The court asked, “Have both sides had an opportunity to go over the instructions?” Thompkins’ counsel responded, “I have your honor. I have no objections to them.” Generally, no party may assign as error the giving of an instruction unless an objection is made before the jury retires. The objection must state distinctly the matter objected to and the grounds for the objection, (unless the instruction is clearly erroneous). K.S.A. 22-3414(3).
*627Thompkins failed to object to the court’s ruling that it would later decide if a premeditation instruction was justified. The court said: “After all of the evidence is in, I’ll make another ruling as to whether or not premeditated should come in or not. That ruling will determine how we go into closing remarks and instructions.” The court then asked defense counsel for any comments. Counsel responded: “I have no comments on the Court's ruling.'' (Emphasis added.) Thompkins knew before trial commenced that the State would be asking for a premeditation instruction if the evidence supported it.
The majority suggests that the State could have taken an appeal after the preliminary hearing. A K.S.A. 22-3602(b)(l) appeal would have been proper if the complaint had been dismissed in its entirety. State v. Freeman, 234 Kan. 278, 670 P.2d 1365 (1983). Here, however, Thompkins was bound over on Count I, murder (under the felony-murder alternative) and on all other charges.
We said in Freeman:
“[T]here is no statutory authority for the State to appeal from the dismissal in a criminal case of some of the counts of a multiple-count complaint, information or indictment while the case remains pending before the district court on all or a portion of the remaining counts which have not been dismissed and which have not been finally resolved.” 234 Kan. at 282.
See State v. Clovis, 254 Kan. 168, 171, 864 P.2d 687 (1993).
Although not raised by Thompkins, the majority suggests that he lost his K.S.A. 22-3208 rights to challenge any defect in the proceedings by the time the court agreed to instruct on premeditated murder. That point in time was at the instruction conference. Defense counsel told the court he had no objection to the instructions. K.S.A. 22-3208 is directed to motions before trial. The majority also advances on its own a K.S.A. 22-2905(1) procedural concern about the filing of the information. Thompkins has not raised a K.S.A. 22-2905(1) issue. Any concern is countered by K.S.A. 22-3208(3) (defects in the information not raised before trial, except as to jurisdiction, are waived).
The district court protected Thompkins’ interest by excluding reference to premeditation in the State’s opening statement. The court evaluated the first-degree murder evidence, listened to ar*628gument of counsel on what the evidence showed, and reasoned that the State had established a reasonable inference of premeditation. The record reflects no surprise, no obligation, and no prejudice.
McFarlani), C.J., and Davis, J., join in the foregoing dissent.