concur in part/dissent in part.
{1 I dissent to the modification of the conviction in Count I to Child Neglect. I concur in the affirmance of the conviction and the modification of the sentence in Count IL
12 The majority has correctly stated that the "merger doctrine" relied upon to reverse the second-degree felony murder conviction in Count I is based upon policy considerations and not the plain language of the statute. However, I find these policy considerations are not supported by legislative intent, together with the fact the antiquated basis for those old policies is no longer present,1 and therefore should not be reaffirmed and applied in the present case.
13 In 1896, at the time Jewell v. Territory was decided, the statutory felony murder provision provided that homicide was murder "when perpetrated without design to effect death by a person engaged in the commission of a felony". 4 Okl. 53, 43 P. 1075, 1077, 1896 OK 16. However, language contained in Jewell, and relied upon by this Court to establish the "merger doctrine", was not contained in the statute. It is only in the syllabus to Jewell, in reference to felony murder, the Court stated:
Homicide is murder, under the third subdivision, "when perpetrated without any design to effect death, by a person engaged in the commission of any felony"; and this means some felony as defined by statute other than that of the killing itself.
4 Okl. 53, 43 P. 1075, 1896 OK 16. (emphasis added)
I 4 In the Jewell opinion, the Court did not discuss, nor analyze the third subsection concerning felony murder, and the issue of felony murder played no part in the resolution of the case. The source of the language added to the statutory felony murder provision, and the language relied upon by this Court for years, is not clearly discernable from the opinion. The syllabus language, as emphasized above, was nothing more than a judicial attempt to legislate an amendment to a statute passed by the Legislature.
{5 A possible source for the additional language appears in the next case which addressed the "merger doctrine", Tarter v. State, 1961 OK CR 18, ¶¶ 41-44, 359 P.2d 596, 601. In that case, the defendant was convicted of murder in the shooting death of an acquaintance. On appeal, the defendant argued the jury should have been instructed on first-degree manslaughter. The State ar*592gued the failure to instruct on manslaughter was harmless because the crime the defendant committed was still murder, as it was perpetrated during the commission of a felony. The Court found, based on the above quoted language from Jewell, that the defendant could not have been convicted of felony murder. 1961 OK CR 18, ¶¶ 41-44, 359 P.2d at 601.
16 Citing language in case law from Kansas and New York, the Court expressed concern that allowing a conviction for felony murder under the cirenmstances of the case would mean that every intentional killing by means of a dangerous weapon would constitute first-degree murder. And, this reveals the crux of the reason for this "policy decision", ie. a way to limit the application of first-degree felony-murder when the Legislature had failed to do so. In the New York case, People v. Wagmer, 245 N.Y. 143, 156 N.E. 644, 646, we get our first glimpse of the possible source for the language the Court added to the statute in Jewell. In Wagner, as quoted in Tarter, the defendant was charged with killing the victim during a felonious assault. The Wagner Court stated in part; "[the law is clear, however, that the precedent felony must constitute an independent crime not included within the resulting homicide". While this Court acknowledged the Oklahoma statute on homicide was "copied almost verbatim" from the New York statute, the Court did not analyze the statutory language or explain its reliance on what appears to be language the Legislature elected not to include in the Oklahoma statute. Tarter, 1961 OK CR 18, at ¶¶ 43-44, 359 P.2d at 601-602.
11 7 Words not found in the text of a criminal statute should not be read into it for the purpose of extending it or giving it an interpretation in conformity with a supposed policy. State v. Humphrey, 1980 OK CR 86, ¶ 7, 620 P.2d 408, 409.2 The fact the Legislature has not intervened in this Court's repeated reliance on language the Legislature had not included in our state statute does not render our application of the law consistent with legislative intent. The "merger doctrine" or merger of offenses has more often been encountered in a double jeopardy analysis rather than in the manner applied in the present case. Convictions for a separately charged felony and felony murder with the separately charged felony serving as the underlying predicate felony have been found to violate double jeopardy principles as the proof of the separately charged felony merges with the proof of the felony underlying the felony murder charge. See Munson v. State, 1988 OK CR 124, ¶ 28, 758 P.2d 324, 332-333; Castro v. State, 1987 OK CR 182, ¶ 32, 745 P.2d 394, 405, (both cases citing Harris v. Oklahoma, 433 U.S. 682, 683, 97 S.Ct. 2912, 2913, 53 L.Ed.2d 1054 (1977)). A plain reading and literal application of 21 O.S.2001, § 701.8(2) does not raise any double jeopardy concerns. In the present case, Appellant was convicted of only one crime, second-degree felony murder based on the predicate felony of child neglect. Therefore, double jeopardy is not an issue, and the merger doctrine is not applicable to the current statute.
18 The offense of second-degree felony murder is set forth in 21 0.98.2001, § 701.82) which provides that second-degree murder is homicide:
2. When perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in Section 1, subsection B, of this act.
19 Under Section 1, subsection B, (21 0.$.2001, § 701.7(B)) first-degree felony murder is committed when a death results during the commission of certain enumerated felonies. Child Neglect is not one of the enumerated felonies.3 Construing the plain *593language of § 701.8(2) means "any felony", except the felonies enumerated in § 701.7(B), can form the basis for a second-degree felony murder charge. The Oklahoma Legislature has clearly enunciated its intent and set out the criteria for both first and second-degree felony murder. To interpret otherwise would in effect obviate the statutory language as no one could ever be charged with second-degree felony murder.4 The Court's interpretation also brings to question the validity of any felony murder statute and maybe the misdemeanor manslaughter statute.
10 It is within the powers of the legislature to define crimes. Salyers v. State, 1988 OK CR 88, ¶ 7, 755 P.2d 97, 100. "The felony murder statute is intended to prevent certain felonies as well as homicide, and the Legislature, in its wisdom, determined that there are certain felonies in which homicide is most likely to occur." James v. State, 1981 OK CR 145, ¶ 13, 637 P.2d 862, 865. Section 701.8(2) is recognition by the Legislature that a homicide can occur during the commission of felonies other than those specifically enumerated under the first-degree felony murder statute and under cireumstances not warranting a first-degree murder charge. By including the language of "any felony" in § 701.8(2), and identifying those felonies by reference to § 701.7(B), the Legislature impliedly did away with the "merger doctrine" relied upon in this case.
€ 11 Further, a finding that the underlying felony of child neglect somehow merges with the homicide in this case to preclude a conviction for second-degree felony murder is also inconsistent with the central purpose of the felony murder doctrine. In Wade v. State, 1978 OK CR 77, ¶ 3, 581 P.2d 914, 915-916, this Court stated:
The primary function of the Felony-Murder Doctrine is to relieve the prosecution of the necessity of proving actual malice or premeditated intent on the part of the defendant in the commission of the homicide; in other words, under the Felony, Murder Doctrine, the malice or premeditated intent involved in the perpetration or attempted perpetration of the felony is "transferred" or "imputed" to the commission of the homicide so that the accused can be found guilty of murder even though the killing is unintentional.
Id.
'I 12 In the present case, the State's theory of first-degree child abuse murder was not supported by the evidence, and the jury so found. However, the evidence did support a finding that the victim's death was the result of Appellant's willful neglect of her baby's medical needs, which constitutes the offense of child neglect. See Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 559; Spuehler v. State, 1985 OK CR 182, ¶ 7, 709 P.2d 202, 203-204 (reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt). Even though the killing may *594have been unintentional, Appellant is criminally responsible for the murder as the intent involved in the willful neglect of the baby's medical needs is transferred to the commission of the homicide. In effect, this neglect was an indirect cause of the death and even under Tarter and Jewell should be the basis for the predicate felony. To interpret the statute otherwise would mean no person could ever be charged with the statutory crime set out in § 701.8(2).
113 Appellant's failure to seek medical attention for her son, which was inherently and potentially dangerous to her son's life in light of the facts and cirenmstances surrounding both the predicate felony and the homicide, brings this case within the historical definition of second degree felony murder. See Wade, 1978 OK CR 77, at ¶ 3-5, 581 P.2d at 916. See also Malaske v. State, 2004 OK CR 18, ¶ 4, 89 P.3d 1116, 1117; Franks v. State, 1981 OK CR 138, ¶ 7, 636 P.2d 361, 364. Considering the underlying purpose of felony murder, finding criminal liability for the baby's murder based upon Appellant's willful failure to seek medical attention (commission of the felony of child neglect) is an appropriate application of the second-degree felony murder statute.
14 This Court should recognize the vestiges of the English Common Law are no longer present in our statutory scheme. Crimes have been clearly spelled out by the Oklahoma Legislature and the days of creating "sleight of hand" policy labels to escape the draconian application of antiquated sentencing policies in that early English system are no longer present.5 If we are to adhere to the Rule of Law, then we should apply the law as written and not devise schemes to subvert that law. A result oriented jurispru-denee will always create problems of explaining legally the anomalies that preclude the orderly progression of the law. As the analysis of Oklahoma case law reveals, those early decisions were flawed through disregarding the language of the Oklahoma statute and amending that statute by adding language specifically omitted by the Legislature. The Court should recognize this flaw, step into the 21st Century, and uphold the statutory scheme devised by the Oklahoma Legislature for dealing with the various levels of criminal conduct. I would affirm the judgment and sentence in Count I.
. See Perkins on Criminal Law (2d Ed.) P.554. "'Under English common law the procedure for the trial of a misdemeanor was so different from that for the trial of a felony as to preclude a joinder of the two in the same indictment. And the rule developed that if the same act resulted in both a misdemeanor and a felony the former was merged in the latter." But the doctrine did not apply where both of the crimes were felonies. Perkins goes further and states "probably there was never any sound basis for the doctrine of merger of offenses-if absolute merger is meant." Pg. 556. The doctrine developed purely on the particularities of the English common law at that time.
. In State v. Jones, 1993 OK CR 36, ¶ 7, 859 P.2d 514, 515, this Court found the plain and "express language" of 21 O.S.1991, § 701.8(2) ("[H]omi-cide is murder in the second degree in the following cases: . 2. When perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in Section 1, subsection B, of this act.") precluded prosecutions where the victim was killed by someone other than the defendant or an accomplice. "Any other interpretation of these statutes would do violence to the clear statutory language". Id.
. However, when the death of a child results from child abuse it constitutes the crime of First Degree Murder pursuant to 21 0.$.2001, § 701.7(C).
. Further, the concerns expressed in Tartar that every murder could be charged as first-degree murder without the necessity of proving the requisite intent to kill are no longer present under the current statutory scheme. First-degree felony murder is now limited to a handful of enumerated felonies 21 O.S$.2001, § 701.7(B). Thus, the English common law policy decisions to escape the onerous penalties imposed on felony convictions are no longer viable.
In addition, a plain reading and literal application of § 701.8(2) also will not subsume other forms of homicide. In addition to second-degree felony murder, a homicide is second-degree murder when committed by an act which is fmmi-nently dangerous to another person and evincing a depraved mind, but without any premeditated design to affect the death of any individual. 21 0.$.2001, § 701.8(1). Homicide is first-degree manslaughter when a killing is committed: 1) during the commission of a misdemeanor; 2) in the heat of passion; or 3) in an unnecessary attempt to prevent the person killed from committing a crime. 21 O.S.2001, § 711. Construing the second-degree murder statute together with the first-degree manslaughter statute, it is clear the Legislature intended for any felony, as defined by statute, to serve as the basis for a second-degree felony murder conviction unless the defendant was acting while in the heat of passion or in an unnecessary attempt to resist a crime. Further, second degree manslaughter is committed by a person who acts negligently, but does not commit a felony. 21 0.$.2001, § 716. Therefore, applying § 701.8 to any felony, not listed in § 701.7(B), does not subsume second-degree manslaughter. Regardless, if a true merger doctrine were being applied it would mean the lesser offense is merged into the greater offense and not vice versa.
. W. LaFave and A. Scott, Substantive Criminal Law, Vol. 2, Pg. 207 (1986), "At the time the felony-murder rule developed, all felonies were punishable by death, so it made little difference whether the felon was hanged for the felony or the murder". Ultimately, "In England the courts came to limit the felony-murder doctrine in one of two ways: (1) by requiring that the defendant's conduct in committing the felony involve an act of violence in carrying out a felony of violence, or (2) by requiring that the death be the natural and probable consequence of the defendant's conduct in committing the felony." Id. So, this decision does not even comply with the rule ultimately established under the English Common Law. And, this death was definitely "the natural and probable consequence of the defendant's conduct in committing the felony".