(dissenting) — I dissent from the majority which construes our second-degree felony-murder statute in a way I believe denies the defendant both due process and equal protection guaranteed by the state and federal constitutions. Many of my reasons for so believing are stated in my dissent in State v. Thompson, 88 Wn.2d 13, 18, 558 P.2d 202 (1977).
I will not attempt to restate each of the points made in that dissent. In that case, as here, neither necessity nor previous cases compel the result reached by the majority. I will point out only the special areas of disagreement I have with the present opinion.
First and most important, despite the majority's conclusion to the contrary, this case, coming soon after our decision in Thompson, both demonstrates and insures that a specific intent to kill is no longer a meaningful part of the second-degree murder provision. Heretofore RCW 9A.32-.050(1) has reflected this state's conformance with the accepted view that specific intent murder, without the added ingredients of premeditation and deliberation, is the first element of murder in the second degree. See W. LaFave & A. Scott, Handbook on Criminal Law 568 (1972). But there is no prosecutor with knowledge of the law who would undertake to prove the existence of such a specific intent when the absence of the mental element will make no legal difference to the disposition of the case. Thus, the practical effect of the majority's decision here makes the statutory provision a historic relic, abandoned by prosecutors to a simple proof of second-degree assault with resulting death.
Second, I believe the majority cannot correctly assume that the legislature intends the felony-murder rule to apply to an underlying felony of assault. The existence of a scheme of homicide provisions, varying in penalties with the degree of a defendant's culpability, and including manslaughter provisions more appropriate to the unintentional homicide considered here than is the felony-murder provision, manifests a legislative purpose reserving the felony-*315murder rule for felonies not included-in-fact within the homicide itself. The majority construction of the felony-murder provision frustrates rather than furthers the legislature's purpose in enacting these homicide statutes.
Third, I cannot agree with the implication by the majority that adoption of the merger doctrine would require overruling State v. Sill, 47 Wn.2d 647, 289 P.2d 720 (1955). Sill was a case in which the defendant was convicted of manslaughter and appealed that conviction. The court, in setting out the nature of the crime, noted manslaughter to be an unintentional killing "by one committing an unlawful, but not felonious, act." Sill, at 651. To the extent this short remark apparently distinguished manslaughter from murder, it was wholly dicta to the decision, since at issue was whether the defendant would be acquitted of the manslaughter charge — not whether he should have been found guilty of murder.2 Thus Sill need not be overruled in' turning away from the mistaken course the majority has chosen in Thompson.
Finally, the cases cited by the majority from other jurisdictions to suggest the same result has been reached by these jurisdictions, are not, I believe, strong support for the propositions for which they are cited. In Robles v. State, 188 So. 2d 789 (Fla. 1966), the application of the felony-murder doctrine was predicated upon the defendant's commission of burglary, during the course of which he stabbed to death the victim. While the burglary itself was in part predicated upon an intent to commit felonious assault within the victim's home, the Florida court's opinion demonstrates that it was the defendant's conduct not included-in-fact within the homicide which permitted a verdict of felony-murder. Indeed, the court emphasized that the Florida statutes precluded assault from serving as a foundation to felony-murder, and thus there was no need *316for judicial adoption of the merger doctrine. The majority's use of Baker v. State, 236 Ga. 754, 225 S.E.2d 269 (1976), also does not support its cause. In that case, the Georgia court concluded that unique features of the Georgia homicide statutes precluded it from adopting the merger doctrine. Georgia's manslaughter provisions are expressly so narrow, the court found, that to find no guilt could attach under the felony-murder provision would result in the defendant's freedom from any charge of homicide. The court proceeded to note that where the manslaughter statutes are those of the "reckless" or "negligent" homicide type, precisely those we have in Washington, RCW 9A.32-.060(l)(a) and 9A.32.070, a court may adopt a merger analysis.3
I believe the majority does not succeed in making its case. The view adopted by the majority here, as in Thompson, remains at odds with a broad construction of the enacted scheme of homicide provisions. Already the first scholarly review of Thompson has registered a distinct criticism of the result reached there. Comment, An Assault Resulting in Homicide may be Used to Invoke the Felony-Murder Rule, 13 Gonzaga L. Rev. 268 (1977).
For these reasons I dissent.
Wright, C.J., concurs with Utter, J.
Reconsideration denied February 28, 1979.
State v. Turpin, 158 Wash. 103, 290 P. 824 (1930), cited by the court in Sill for the definition of manslaughter, similarly arose from a verdict of manslaughter, to which any distinction between manslaughter and murder would be irrelevant.
In a subsequent case, Malone v. State, 238 Ga. 251, 232 S.E.2d 907 (1977), the same Georgia court held that commission of voluntary or involuntary manslaughter under the state's statutes will not invoke the felony-murder rule as to-the death of the main victim.