dissenting: I respectfully dissent from that portion of the majority opinion which holds that mere possession of a firearm contrary to K. S. A. 21-4204 (1) (b) may be used to convert an accidental or nonmalicious killing to murder in the first degree by application of the felony-murder rule. In the typical murder case in order for a defendant h> be convicted of murder in the first degree it is incumbent upon the state to prove that the defendant killed his victim maliciously, willfully, and with deliberation and premeditation. Murder in the first degree is punishable by life imprisonment under our present statute. The majority opinion correctly points out that the felony-murder rule was designed to relieve the state of the burden of proving willfulness, premeditation, deliberation, and malice when the victim’s death is caused by the killer while he is committing another felony. The rationale behind the felony-murder rule is that the killer’s malignant purpose is established by proof of the collateral felony. The majority opinion correctly declares that all felonies are not sufficient to permit the application of the felony-murder rule. In order for the felony-murder rule to be applicable, the collateral felony must be one inherently or forseeably dangerous to human life, and to sustain a conviction for murder in the first degree under that rule, it must be shown that the homicide committed was a direct causal result of the commission of such felony. At this point I am in complete agreement with the majority.
*504The basic issue presented in this case is whether or not the mere unlawful possession of a firearm by a convicted felon contrary to K. S. A. 21-4204 (1) (b) is the type of felony which reasonably permits the application of the felony-murder rule to a killing which is accidental or nonmalicious. I wish to emphasize in the beginning that the offense of unlawful possession of a firearm by a convicted felon is an important part of our criminal code. K. S. A. 21-4204 (1) (b) provides in substance that possession of a firearm with a barrel less than twelve-inches long by a person who, within five years preceding such violation has been convicted of a felony under the laws of Kansas or any other jurisdiction or has been released from prison for a felony is a class D felony which under our penal code is punishable by confinement in a penal institution for a variable minimum term of not less than one year nor more than three years and a maximum term of ten years. The law is well designed to protect the public from the improper use of firearms by convicted felons. The majority opinion appears to concede that unlawful possession of a firearm in violation of K. S. A. 21-4204 in the abstract is not an inherently or fores eeably dangerous act unless the circumstances of its commission make it so. Such a rule is logically based upon the assumption that it is not the possession of the firearm which is inherently dangerous but it is rather the handling or the use which is made of the firearm which may be inherently dangerous so as to justify the application of the felony-murder rule.
The issue before us in this case was determined by the Supreme Court of California in 1971 in People v. Satchell, 6 C. 3d 28, 98 Cal. Rptr. 33, 489 P. 2d 1361, 50 A. L. R. 3d 383. In that case the California court pointed out that the felony-murder rule is a highly artificial concept and warned that “it should not be extended beyond any rational function that it is designed to serve.” The court further held that the determination as to whether a felony is inherently dangerous for purposes of the felony-murder rule must be based upon an assessment of that felony in the abstract and not on the particular facts of a case. It concluded that neither possession of a concealable firearm by a person who has previously been convicted of a felony nor possession by any person of a weapon such as a sawed-off shotgun is a felony inherently dangerous to human life for purposes of the felony-murder rule. It concluded that a person who perpetrates a homicide while engaged merely in the commission of the felony of possession of a firearm may not be convicted of murder unless the existence of the crucial mental state *505of malice aforethought is actually proved by the prosecution. It is important that we examine closely the rationale of the California court in Satchell where the court stated:
“It is manifest that the range of antisocial activities which are criminally punishable as felonies in this state is very wide indeed. Some of these felonies, such as certain well-known crimes against the person of another, distinctly manifest a propensity for acts dangerous to human life on the part of the perpetrator. Others . . . just as distinctly fail to manifest such a propensity. Surely it cannot be said that a person who has committed a crime in this latter category, when he arms himself with a concealable weapon, presents a danger to human life so significantly more extreme than that presented by a non-felon similarly armed as to justify the imputation of malice to him if a homicide should result. Accordingly, because we can conceive of such a vast number of situations wherein it would be grossly illogical to impute malice, we must conclude that the violation of section 12021 by one previously convicted of a felony is not itself a felony inherently dangerous to human life which will support a second degree felony-murder instruction.” (pp. 40-41.)
The California court recognized that possession of a firearm is a passive act which in and of itself, is not inherently dangerous. The weapon becomes inherently dangerous when it is used in such a manner as to endanger a human life. The California court in its opinion stated as follows in this regard:
“Viewing the matter from the standpoint of inherent danger, we find it difficult to understnad how any offense of mere passive possession can be considered to supply the element of malice in a murder prosecution. To be sure, if such possession is of an extremely reckless nature manifesting a conscious disregard for human life, malice may be imputed by means of basic murder principles. . . . Moreover, if passive possession ripens into a felonious act in which danger to human life is inherent, the purpose of the felony-murder rule is served by its application — for it is the deterrence of such acts by felons which the rule is designed to accomplish. However, mere possession in itself — ignoring the propensities and conduct of the possessor — is essentially neutral in its intentional aspect and should not serve as the basis for the imputation of malice.” (pp. 42-43.)
The rule adopted by the majority in the case before us is not sound for several reasons. In the first place, in my judgment, it is a rule which would be impossible for the trial courts of this state to apply. The majority opinion states that where doubt exists as to whether in a particular case unlawful possession of a firearm is inherently dangerous, there is nothing wrong in considering both the nature of the offense in the abstract and the circumstances of its commission in determining whether the offense was inherently dangerous to human life in the particular case. The majority opinion has furnished no guidelines to assist the trial court in in*506structing the jury. This in my judgment places a difficult burden upon the district courts of this state in applying the rule adopted by the majority.
The rule of the majority opinion also may result in a serious conflict with the established principle of law that in a first-degree murder prosecution the felony-murder rule may not properly be invoked when it is based upon a felony which is an integral part of the homicide. (State v. Clark, 204 Kan. 38, 460 P. 2d 586; State v. Fisher, 120 Kan. 226, 243 Pac. 291.) The rule followed by the majority requires the trial court and the jury to consider not only the unlawful possession of a pistol in the abstract but also the manner in which the pistol is handled or used in determining whether the possession was inherently dangerous to human life. In the case now before us the majority relies upon the fact that the defendant had a gun in his hand in order to scare the deceased and thereby to coerce him into involuntary action. In order to avoid a conflict with the rule of State v. Clark, supra, the majority opinion emphasizes that there was no evidence the defendant made any presentment of the pistol in an offer to do .corporeal hurt to the victim so as to amount to an assault constituting an integral part of the murder charge as prohibited by Clark. The clear implication is that if the defendant had actually assaulted the deceased with a gun, then the felony-murder rule would not have been applicable since in that situation the assault would have been an integral part of the homicide. It would seem to follow that if a defendant unlawfully possessing a firearm does not commit an assault upon his victim but accidentally kills him, then he may be found guilty of felony-murder. If, however, he assaults his victim then the felony-murder rule cannot be applied and in order to convict the defendant of murder the state must prove that the defendant intentionally and with malice committed the homicide. The irrationality of this distinction is obvious on its face.
Furthermore, I wish to point out that the practical application of the rule approved by the majority can produce other absurd results. For example, let us assume that a defendant, having been previously convicted of felony for writing an insufficient fund check, purchases a firearm to protect himself and his family against criminal invaders of his home. He accidentally drops the gun, causing it to strike the floor and be discharged, killing a guest in his home. Since the killing occurred during commission of a felony, possession of the gun unlawfully, defendant would be precluded from inter*507posing the defense of accident. Under the rule adopted by the majority defendant would be guilty of murder in the first degree and possibly subjected to a term of life imprisonment in the state penitentiary.
Another example — a farm lad served in the Vietnam war and at the time of his discharge obtained an automatic rifle which he took to his farm home. He wanted the gun not only for the protection of himself and his family but also for use in the killing of predators that might attack his livestock. Under the provisions of K. S. A. 21-4201 (1) (g) it is a class E felony for any person to possess a firearm capable of discharging automatically more than once by a single function of the trigger. An intruder comes upon the defendant’s farm. The defendant points a gun at the intruder, directing him to get off his place. The gun accidentally discharges and kills the intruder. The rule adopted by the majority in this case would require the jury to convict the defendant of murder in the first degree since at the time of the killing the defendant was committing another felony — possession of an automatic weapon — at the time the killing took place.
One more example should suffice. A defendant having been previously convicted of a felony accidentally shoots another person. At the time defendant was in possession of a firearm with a barrel eleven-inches long. Applying the felony-murder rule the defendant would be guilty of felony murder and upon conviction a life sentence would be imposed. If the firearm involved in the case had a barrel twelve-inches long the defendant would not be guilty of any criminal offense since the shooting was accidental and would fall into the category of an excusable homicide. It does not seem reasonable to impute malice to the defendant in the first situation and not to do so in the second situation; yet this absurd result would follow under the rule adopted by the majority of the court in this case.
I have pointed out these examples to show how irrational it is to use the unlawful possession of a firearm as a basis for application of the felony-murder rule. I want to emphasize the fact that the California rule does not prevent prosecution for murder in cases such as the one now before us. People v. Satchell, supra, merely holds that malice may not be imputed from the passive act of possession of a weapon. The state may properly prove the basic elements of premeditated murder where the evidence establishes that the firearm was used by the convicted felon in such a manner *508as to show malice, willfulness, and premeditation. The jury could then properly convict the defendant of first-degree murder.
Assuming that the rule of the majority should be adopted, it would still be necessary to reverse this case and grant the defendant a new trial. As pointed out above the majority has taken the position that felony possession of a firearm in the abstract is not sufficient to justify the application of the felony-murder doctrine. For the felony-murder rule to be applied the possession of the firearm must be under such circumstances as to be inherently dangerous to human life. The majority rule would, of necessity, require an instruction to the jury that before the felony-murder rule should be applied it must find that the factual circumstances of the case made felony possession an inherently dangerous crime. Absent such a qualifying instruction the jury would be permitted to use a passive nondangerous type of possession of the firearm as a sufficient basis to find the defendant guilty of felony murder. In this case the jury was instructed without qualification that if the defendant killed the deceased and if such killing was done in the commission of the felony of unlawful possession of a firearm he should be found guilty of murder in the first degree. They were not instructed to take into consideration the factual circumstances present in the case. Even the majority would appear opposed to this result.
I further disagree with the majority opinion for the reason that in my judgment under the evidence presented in the case the defendant was entitled to an instruction on lesser included offenses of homicide. The testimony offered by the defendant tended to show the shooting was accidental as a result of his slipping in the snow, bumping into the door and causing the gun to be discharged. The defendant testified that he had just received possession of the gun from Silky who said it was not loaded and that his only purpose in taking the gun was to scare the man with it. Such evidence negates the presence of a willful and malicious killing and the premeditation necessary to prove murder in the first degree. In my judgment it was error for the trial court in this case to instruct the jury on the theory of felony murder rather than premeditated murder and in its failure to instruct the jury on lesser included offenses which were justified under the evidence and the theory of the defense.
In view of the position that has been taken in this dissent, it would logically follow that State v. Moffitt, 199 Kan. 514, 431 P. 2d *509879, should be overruled. Moffitt relies to a great extent on People v. Ford, 60 C. 2d 772, 36 Cal. Rptr. 620, 388 P. 2d 892; People v. Williams, 63 C. 2d 452, 47 Cal. Rptr. 7, 406 P. 2d 647; and People v. Robillard, 55 C. 2d 88,10 Cal. Rptr. 167, 358 P. 2d 295, 83 A. L. R. 2d 1086. Those California cases held that unlawful possession of a pistol by a convicted felon was capable of supporting a felony-murder instruction. The rationale of those cases was considered and rejected by the California Supreme Court in People v. Satchell, supra. Moffitt should be overruled by this court not only for the reason that it relied upon California decisions which are no longer the law but also because the basic rationale of the case is not legally sound and is inherently unjust.
For the reasons set forth above I would reverse this case with directions that a new trial be granted.
Fromme and Owsley, JJ., join in the foregoing dissenting opinion.