dissenting: I dissent from the felony-murder portion of the majority opinion. The majority reasons it was error for the trial court to instruct the jury on felony murder because child abuse is not an independent collateral felony and accordingly merged into the felony-murder charge. The majority opinion quotes State v. Lucas, 243 Kan. 462, Syl. ¶ 5, 759 P.2d 90 (1988), affd 244 Kan. 193, 767 P.2d 1308 (1989):
“A single assaultive incident of abuse of a child (K.S.A. 1987 Supp. 21-3609) which results in the death of a child merges with killing and constitutes only one offense.”
I disagree. I would affirm the trial court on all issues raised in this appeal.
In my view, the felony-murder rule applies in K.S.A. 1987 Supp. 21-3609 (child abuse) cases whether death results from facts which show a continuing course of conduct or a single act of child abuse.
Prouse was convicted of first-degree murder under K.S.A. 21-3401:
“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.
“Murder in the first degree is a class A felony.” (Emphasis added.)
He was also found guilty of the felony of child abuse under K.S.A. 1987 Supp. 21-3609:
“Abuse of a child is willfully torturing, cruelly beating or inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years.”
Under the felony-murder doctrine, when a death occurs in the course of a felony, the intent to commit the felony is transferred to the act of killing in order to find culpability for the homicide. The rule serves the purpose of relieving the State of the burden of proving premeditation or malice. A strategic advantage is thus provided to prosecutors. The theory is that proof of intent to commit the underlying felony is sufficient to show a guilty mens rea for murder. State v. Rueckert, 221 Kan. 727, 730, 561 P.2d 850 (1977). The history of the felony-murder rule began in Kansas *303with our territorial government. Kan. Terr. Stat. 1855 ch. 48 § 1. For a detailed analysis of the history, rationale, and criticism of the felony-murder rule see, Note, Criminal Law—Felony Murder in Kansas—The Prosecutor’s New Device: State v. Goodseal, 26 Kan. L. Rev. 145 (1977). England, where the doctrine originated, abolished the rule in 1957. The Homicide Act, 1957, 5 & 6 Eliz. 2, ch. 11, § 1. The great majority of states which follow the doctrine subject it to two limitations: (1) The underlying felony must be inherently dangerous to human life; and (2) the elements of the underlying felony must be so distinct from the homicide so as not to be an ingredient of the homicide. See Annot., Application of Felony-Murder Doctrine Where the Felony Relied Upon is an Includible Offense with the Homicide, 40 A.L.R.3d 1341. This court has adopted both limitations. State v. Lashley, 233 Kan. 620, 631, 664 P.2d 1358 (1983); State v. Fisher, 120 Kan. 226, 231, 243 Pac. 291 (1926).
This court, in 1985, reviewed child abuse and felony murder in State v. Brown, 236 Kan. 800, 696 P.2d 954 (1985). The facts in Brown are similar to those in this case. Felicity Prouse was seven weeks old when she died. Brown involved the death of a month-old baby boy who showed signs of severe neglect and abuse.
In Brown, the court stated that an offense of child abuse did not merge into a charge of felony first-degree murder. I agree with the observation made in Brown. “It is obvious from even a cursory reading of the statutes that a charge of abuse of a child does not meet the Rueckert test for merger into a charge of felony first-degree murder.” 236 Kan. at 803. (Emphasis added.)
We should not overrule Brown.
Child abuse is a felony inherently dangerous to human life. State v. Lucas, 243 Kan. at 466. I agree with the majority that we are to consider the elements of the collateral felony in the abstract.
We should apply the same logic to a child abuse felony-murder analysis as we apply to other felonies deemed inherently dangerous to human life.
In overruling Brown, Lucas holds that the test for merger is more correctiy stated as being whether the elements of the underlying felony are so distinct from the homicide so as not to be an ingredient of the homicide. 243 Kan. at 469.
*304The majority, in citing Lucas, reasons that had an adult been beaten on the head and drowned in a pool of water, the court would not hesitate in holding that the aggravated battery (the beating) was an intregral part of the homicide. The collateral “adult victim” felony merged with the homicide. Lucas, 243 Kan. at 470. The majority inquires: “Can a different result logically be reached by designating the beating as abuse of a child rather than aggravated battery?” The majority’s answer is, “No.” Lucas, 243 Kan. at 470. I disagree.
In my view, K.S.A. 1987 Supp. 21-3609, the child abuse statute, is support for application of the felony-murder rule. The current Kansas criminal code was adopted in 1969. K.S.A. 21-3101. Subsection (1) of KS.A. 21-3102 states:
“No conduct constitutes a crime against the state of Kansas unless it is made criminal in this code or in another statute of this state . . .
The statutory history of K.S.A. 21-3102(1) indicates:
“Subsection (1) restates, but does not change the law of Kansas. Common law crimes are abolished in that the judiciary has no power to find and punish crimes not defined by legislative authority.”
The legislature has characterized child abuse as a class D felony.
The elements of child abuse are not the “ingredients” of a first-degree murder charge.
I agree with the reasoning of this court in State v. Rueckert, 221 Kan. 727, Syl. ¶ 6: “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.”
I defer to the legislature. The legislature has extended an option to prosecutors by designating the beating of a child as child abuse, K.S.A. 1987 Supp. 21-3609, or aggravated battery, K.S.A. 21-3414. Neither the authority nor the wisdom of the legislature, in adopting the child abuse statute, has been questioned. I suggest that there is no more dominant thread in either the legislative or the judicial fabric than the recognition of children as a protected class. The examples of that recognition are legion and require no citation.
Such a finding is consistent with our public policy underlying the felony-murder rule (to deter all those engaged in felonies *305from killing negligently or accidentally, State v. Brantley, 236 Kan. 379, 380-81, 691 P.2d 26 [1984]).
In addition to the deterrence concept as an underlying purpose of the felony-murder rule, I suggest that the rule serves the objective of proportional justice.
“Such diverse philosophers and judges as Jeremy Bentham, H. L. A. Hart, Sir James Fitzjames Stephen, Joel Feinberg, and Chief Justice Warren Burger have noted the disrespect that the law engenders when its response is disproportionate to public evaluations of the severity of an alleged violation.” Crump & Crump, In Defense of the Felony Murder Doctrine, 8 Harv. J.L. & Pub. Pol’y-359, 362 (1985).
I agree with the observation: “The homicide of a child in the course of an effort to injure him can be seen as a very serious crime in the scale of offense grading because of the vulnerability of the child.” Crump & Crump, at 832.
In my view, the underlying or collateral felony, child abuse, K.S.A. 1987 Supp. 21-3609, supplies the necessary culpable mental state for the murder conviction. The crime of child abuse is not a lesser included offense to the crime of murder; consequently, it is distinct from and not an ingredient of the homicide.
The underlying or collateral felony in Prouse’s case, child abuse, does not merge. See Ex Parte Easter, 615 S.W.2d 719 (Tex. Grim.), cert, denied 454 U.S. 943 (1981).
Prouse’s convictions of first-degree felony murder and child abuse should be affirmed.
Herd, J., joins in the foregoing dissenting opinion. Miller, C.J., dissenting.