dissenting: The facts in this case do not justify *478overruling of State v. Brown, 236 Kan. 800, 696 P.2d 954 (1985). To establish this point, I shall repeat a statement of the facts in more detail than is in the majority opinion. The appellant, Robert Lucas, is a cruel, sadistic person. He vented those tendencies on Shaina and Shannon Woodside while babysitting, ultimately killing Shaina.
Witnesses testified to innumerable incidents of cruelty by Lucas to the two little girls during the last several months before Shaina’s death. A former babysitter, Debbie Moore, testified Lucas often told Shaina she was ugly and told Ms. Moore to pour Tabasco sauce down Shaina’s throat if she bit anyone. Lucas had a fixation on biting. One time when he came to pick up the girls from Ms. Moore, he called for Shannon to come to him and asked her if Shaina had bitten her. Shannon said Shaina had not. Lucas repeated the question and received another denial. He then caught her off guard by asking, “Where did she bite you?” Shannon pointed to her arm. Lucas thereupon called Shaina into the room and bit her so hard she had a bruise the next day. Ms. Moore said she had seen Lucas bite Shaina another time. She also said she had seen Lucas scare Shaina by making an ugly face at her. He explained he was doing this to demonstrate “he meant business” and that they had to mind him. Ms. Moore testified that Lucas said, “I love to intimidate that child and make her cry.” When Shaina would run to Ms. Moore for comfort, Lucas would admonish Ms. Moore by saying, “Please don’t pick her up. We’re trying to break her of the habit of being babied all the time and picking her up when she wants to be picked up all the time and be held.” He was saying this about an eighteen-month-old baby. Once, when the girls arrived at Ms. Moore’s house, Shannon had a black eye and Shaina had a large bruise on the back of her leg and on her cheekbone. Shannon explained her bruises by saying she had fallen, but when asked about Shaina’s she blurted out, “Robbie,” then would say no more.
Mrs. Woodside, her sister, and her parents testified Lucas once beat Shannon so hard with a belt she was bruised purple from her lower back to her thighs for well over a week. Woodside told of an incident in January when Shannon wet her pants. As Lucas approached Shannon threateningly, she began to cry and asked if he was going to beat her again. Lucas stripped her clothes off, put her in a diaper, and placed her on the floor in an unheated *479room. She remained there for four hours until her grandmother came and dressed and fed her. As soon as the grandmother left, Lucas undressed Shannon and returned her to the cold room until Woodside came home.
The grandmother testified the girls were deathly afraid of Lucas; that Shaina would cry whenever Lucas picked her up, and if anyone else was around she would put her arms up, pleading to go to them. Woodside’s sister said Lucas repeatedly gave Shaina hard pinches to her chest and bottom, making her cry.
Lucas also broke Shaina’s arm, but he had a ready explanation. He said she slipped when he held her up in the shower and he had to grab her arm. Several weeks later, Woodside found burns on Shaina’s bottom. Lucas said he had spanked her. When asked why they looked like burns, he said he had accidentally set her on the stove burner when he was distracted by Shannon and the telephone.
On July 5, Woodside found a bum on Shaina’s hip and bruises around her thighs. Lucas had his usual ready explanation. He said he had playfully snapped her with a washcloth and she had fallen into his cigarette.
The “tanking” incident, described in the majority opinion, occurred the next morning. Shaina was killed that evening. When her mother left for work on July 6, Shaina’s only apparent injuries were burn marks on her bottom, bruises on her thighs, a cigarette burn, a cut on her lip, a scratch on her nose, and a scar on her chin. At about 10:30 p.m., when the emergency medical crew arrived, Shaina was found to have numerous scars from bums on her buttocks which appeared to have been made by a V-shaped instrument, and bruises on her hips, legs, arms, spine, neck, and face. She had cigarette burns on her abdomen and her nipples were lacerated. In addition, there were injuries to her head which caused her to lose consciousness and drown in the bathtub.
Thus, we can see Robert Lucas continuously tortured this eighteen-month-old baby over a period of at least a month, and ultimately caused her premature death.
I am dissenting to the majority opinion for its misplaced reliance on merger to grant this child killer a new trial. Lucas was properly convicted of felony murder.
*480The legislature defines murder in K.S.A. 21-3401 as:
“Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony.”
Under constitutional democracy with its division of powers, the power to define and punish crimes rests in the legislature. There is a wide latitude on the part of lawmakers to define an offense and to exclude elements of knowledge from its definition. 22 C.J.S., Criminal Law § 11.
The legislature established felony murder as a crime. Its purpose was to make all persons responsible for the logical consequences of their wrongful acts even though premeditation could not be established. The judiciary’s function with regard to such legislation is to rule on its constitutionality and then strictly construe any ambiguity in favor of the accused. K.S.A. 21-3401 has been found constitutional. State v. Crump, 232 Kan. 265, 268-69, 654 P.2d 922 (1982); State v. Goodseal, 220 Kan. 487, 493-94, 553 P.2d 279 (1976), overruled on other grounds 228 Kan. 294, 615 P.2d 153 (1980).
Felony murder is a much-criticized doctrine. In spite of the criticism, it serves a useful purpose in our concept of justice. It is a deterrent to accidental or negligent killings in the course of a felony for gain, such as arson or burglary.
Although K.S.A. 21-3401 clearly and unambiguously allows the application of the felony-murder doctrine when a killing occurs in the perpetration of “any” felony, we have judicially limited the rule in the interest of justice. The first limitation on the doctrine has been to apply the rule only in cases where the underlying felony is inherently dangerous to human life. Only in inherently dangerous felonies do we find the accused had sufficient disregard for human life to justify imposing upon him or her a conclusive presumption of mens rea for murder.
Similarly, we refuse to apply the doctrine where there is no actual underlying felony. Thus, our second limitation is the merger doctrine. It prevents a homicidal offense from acting as an underlying felony to support felony murder. A felony other than the killing itself must have been committed to support a felony-murder charge. For example, if a person commits the sole felony of involuntary manslaughter, that felony may not be used to support a felony-murder charge.
*481The third limitation is the application of the merger doctrine to nonhomicidal offenses such as assault. For example, most murders are committed by means of an aggravated battery. We have held an accused may not be charged with both murder and aggravated battery because the crime consists of one act; the murder and the battery merge. Where there is only one act, there is no separate felony to add to the equation. See, for minority positions refusing this limitation, Robles v. State, 188 So. 2d 789 (Fla. 1966); Baker v. State, 236 Ga. 754, 225 S.E.2d 269 (1976); People v. Viser, 62 Ill. 2d 568, 343 N.E.2d 903 (1975); State v. Wanrow, 91 Wash. 2d 301, 588 P.2d 1320 (1978).
There are exceptions to our use of the third limitation to the statute. If an assault ending in death were carried out by means of extended torture or kidnapping, the felony is sufficiently collateral to justify the use of its mens rea for murder. In State v. Foy, 224 Kan. 558, 582 P.2d 281 (1978), we held a burglary carried out with the sole purpose of committing an assault which ended in death was sufficient to support felony murder. See Harris v. United States, 377 A.2d 34 (D.C. 1977); People v. Miller, 32 N.Y.2d 157, 344 N.Y.S.2d 342, 297 N.E.2d 85 (1973).
One other exception under the third judicial limitation to our felony-murder statute was announced in State v. Brown, 236 Kan. 800. In that case, we acknowledged there were instances where the merger doctrine should be limited to the second limitation, the lesser offenses of homicide. See Bolton v. State, 253 Ga. 116, 318 S.E.2d 138 (1984); Ex Parte Easter, 615 S.W.2d 719 (Tex. Crim. App.), cert. denied 454 U.S. 943 (1981).
Brown was similar to the case at bar. It involved the death of a six-week-old baby boy who showed signs of severe neglect and abuse. His shoulder and skull were fractured and he was emaciated and bruised. Although the exact cause of death was not given, it was obviously a result of abuse. The baby’s mother was charged with child abuse and felony murder. We affirmed her conviction of child abuse and involuntary manslaughter.
We did not decide in Brown whether “a single instance of assaultive conduct, as opposed to a series of incidents evidencing extensive and continuing abuse or neglect, would support a charge of felony murder.” 236 Kan. at 803-04. By this language we distinguished continuing child abuse from the crime of assault. Lucas argues this case is distinguishable from Brown in *482that the evidence tends to show Shaina’s death resulted directly from one assault — his beating of her in the bathtub, from which she fell face down in the water. He argues the case is thus no different from other assault cases which end in death. In Brown, the death appeared to have been caused by the cumulative effect of multiple abuse heaped on the baby’s body, whereas in this case the coroner’s testimony showed -it was probable Shaina would not have died but for the drowning.
The question which should therefore be determined in the instant case is whether a continuing course of child abuse, insufficient in itself to cause death, prevents merger of the final attack of abuse with felony murder. Lucas contends that child abuse, a crime which carries a lesser penalty than assault but, like assault, consists of violence with no other purpose but to harm, must be deemed to merge.
Our statute allows a defendant to be charged with felony murder for a death resulting from the commission of “any” felony. We have seen that the statute has only been limited by judicial decree in instances where it is unjust not to evaluate the intentions of the defendant in committing the killing.
The majority repeatedly compares the beating and death of children with that of adults to prove its logic that our limitations to the statute should apply to a continuing course of child abuse. The majority states that if the legislature feels the death of children by felonious abuse from their caretakers is a more serious concern in our society than other assaults, the legislature should enact a statute making it so. The legislature has already spoken on that issue and made all homicides resulting from commission of a felony first-degree felony murder. The majority ignores the fact that any limitation is created only by our limitation of K.S.A. 21-3401. We need only follow our precedent in Brown and affirm the trial court to see justice done.
In a case where the facts show continuing child abuse, the defendant has engaged in a course of conduct which no longer entitles him to judicial checks upon the statute. This was not a case of accident, self-defense, or a one-time fit of passion.
Lucas abused Shaina over and over again for a period of months. He had time to sit back and reflect as he watched her toddle around, bruised, burned, and fearful. He saw the effects of *483his anger and of his strength but his conclusion upon reflection was, “I love to intimidate that child and make her cry.”
We have held burglary to be sufficiently removed from homicide to prevent merger, even when its purpose was to commit an assault, because of the additional circumstances surrounding the assault which increased the danger to the victim. Here, not only was Shaina trapped in her own home, but the additional circumstance of her age placed her in great danger from those adults closest to her whom she had the right to trust to act for her ultimate good. That trust was horribly breached.
Sometime during that dreadful night, Shaina’s nipples were torn, her body bruised, and her torso burned with cigarettes. Such acts of torture do not deserve the protection from the severity of the felony-murder rule given defendants charged with assault. The age of the victim and the continuing nature of the torture are the elements which distinguish child abuse from assault. These elements create a circumstance in which the danger to the victim is so great that the felony-murder doctrine is justifiably imposed.
I do not think, under the facts of this case, we are justified in overruling Brown. I would affirm.
Miller, and Holmes, JJ., join the foregoing dissent.