State v. Goodseal , 220 Kan. 487 ( 1976 )

Kaul, J.,

(concurring): I concur with the majority’s disposition of this appeal, but feel compelled to record these- observations. In State v. Moffitt, 199 Kan. 514, 431 P. 2d 879, a unanimous court firmly established that possession of a pistol after a felony conviction in violation of K. S. A. 21-2611 constituted a felony inherently dangerous to human life. In Moffitt, we held:

“The term ‘other felony’ in K. S. A. 21-401 includes the felony created by K. S. A. 21-2611 (possession of a pistol after conviction of a felony) which is held to be inherently dangerous to human life, and where the evidence discloses a direct causal relation between the commission of such felony and the homicide, it is sufficient to sustain a conviction on a charge of murder in the first degree, even though intent is not an element of proof in K. S. A. 21-2611.” (Syl. 6.) (Emphasis supplied.)

The gist of our holding in Moffitt, concerning the application of the felony-murder rule, was reaffirmed by a unanimous court in State v. Bey, 217 Kan. 251, 535 P. 2d 881.

Moffitt was decided in 1967. I think it may be said, without dispute, that it is a matter of common knowledge that firearm homicides, committed by felons, have dramatically increased even since the Moffitt decision. Our legislature has examined our criminal code on several occasions and found no reason to alter the Moffitt rule. Under the circumstances, it appears to me, that modification or reversal of our unanimous decision in Moffitt would be a grave mistake.