concurring in part and dissenting part.
1 I concur in affirming the conviction in Count II, but dissent from the Court's reso-Tution of Count I. The killing of one human being by another is homicide, either criminal, excusable, or justifiable. 21 0.98.2001, §§ 691, 692. From the facts related in 3 of the opinion, Appellant's failure to obtain medical care for her child was neither excusable nor justifiable When this omission tragically resulted in death, it was either murder or manslaughter.1 The jury convicted Appellant of the lesser included offense of second-degree felony murder, which required a finding that she caused her child's death in the commission of willful or malicious neglect, here taking the form of a failure to *595obtain medical care. 10 0.8.2001, §§ 7102(B)(8), 7115(C).
T2 The Court reads our cases on the merger doctrine to preclude Appellant's conviction for second-degree felony murder based on the predicate felony of child neglect. This "independent crime" requirement, sometimes called the merger doctrine, prevents the State from transforming every aggravated assault resulting in death, and every lesser degree of homicide, into second-degree felony murder. Without the merger doctrine, one who killed another in the commission of an aggravated assault or first- or second-degree manslaughter would be guilty of second-degree felony murder. This defeats the legislative prerogative to define the varying degrees of homicide; it is the primary mischief prevented by the merger doe-trine.2
13 The Legislature clearly authorized a conviction for second-degree murder in a case like this, where a homicide is "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." 21 0.8.2001, § 701.8(2) (emphasis added). Notwithstanding this apparently sweeping legislative policy to punish more severely all homicides caused while in the commission of a felony, our jurisprudence also "requires a nexus between the underlying felony and the victim's death in order for the felony murder doctrine to be applicable." Malaske v. State, 2004 OK CR 18, ¶ 5, 89 P.3d 1116, 1118. We have said that any predicate felony "must be inherently or potentially dangerous to human life, inherently dangerous as determined by the elements of the offense or potentially dangerous in light of the facts and cireumstances surrounding both the felony and the homicide." Id., quoting Wade v. State, 1978 OK CR 77, ¶ 4, 581 P.2d 914, 916.
T4 Despite the narrow purpose to which the merger rule is directed, the Court's decisions in this area now poise it to void a felony murder conviction whenever there is either too much criminal nexus or not enough: too little relationship between the felony and the killing and lability will not attach; too direct a relationship and the lesser and greater offenses "merge" to the same effect. To these judicial complications of a seemingly straightforward legislative policy, today's opinion adds a non-sequitur: the lesser predicate crime first merges with the more serious act of killing and then (astonishingly) reemerges to serve as the offense of conviction. The criminal homicide into which this lesser crime merged is then set at naught; its prosecution is abated forever. Previous findings of a merger violation resulted in reversal and remand for a new trial on a proper homicide charge. E.g., Massie v. State, 1976 OK CR 174, 553 P.2d 186; Tucker v. State, 1984 OK CR 36, 675 P.2d 459, overruled on other grounds, Schultz v. State, 1988 OK CR 17, ¶ 6, 749 P.2d 559, 561; Sullinger v. State, 1984 OK CR 44, 675 P.2d 472. The remedy imposed here is unprecedented.
T5 The Court's expansive application of the merger doctrine to void this felony murder conviction predicated on child neglect also raises the troubling question of whether Appellant and others similarly situated could even be answerable to a charge of first-degree manslaughter. Section 711(1) provides that a homicide is first-degree manslaughter when "perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor." Does the majority's broad conception of merger preclude a misdemeanor-manslaughter conviction predicated on a violation of 21 § 852, which prohibits the willful omission of a responsible party to furnish necessary food, clothing, shelter, or medical assistance to a child?
16 In Funkhouser v. State, 1988 OK CR 109, 763 P.2d 695 this Court affirmed a conviction for second-degree manslaughter involving a failure to seek medical care for a *596sick child. The Court reasoned that the parents' omission showed culpable negligence warranting a conviction under section 716. Id. at T 14, 768 P.2d at 697. Appellant is at minimum answerable to a charge of second-degree manslaughter on remand. The Court avoids that option and its maximum sentence of four (4) years imprisonment in favor of imposing a more severe punishment for felony child neglect, tacitly acknowledging the seriousness of Appellant's crime while extending her substantial merey. Today's opinion immunizes Appellant from a murder conviction authorized by the plain language of section 701.8 and returned by the verdict of a jury.
. See 21 0.$.2001, § 701.8(1) and (2) (defining second-degree murder as killing "by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design" to effect death, or in the commission of any felony not enumerated as first-degree felony murder); § 711(1) (defining first-degree manslaughter as homicide "perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor"); and § 716 (defining every "killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor justifiable homicide," as manslaughter in the second degree).
. "... [Alt common law, homicide resulting from an assault committed with intent to inflict serious bodily harm was classified as murder. Consequently there was no confusion between degrees of murder if the same act were punishable as felony-murder as well. But with the advent of the codified degrees of homicide it became necessary to devise methods of preserving the distinctions between those degrees." Note, The Doctrine of Merger in Felony-Murder and Misdemeanor-Manslaugher, 35 St. John's L.Rev. 109, 117 (1960), quoted in People v. Payton, 356 Ill.App.3d 674, 292 Ill.Dec. 575, 826 N.E.2d 1011 (2005).