State v. Wanrow , 91 Wash. 2d 301 ( 1978 )

Hicks, J.

(concurring) — Were I a member of the legislature, I would vote to adopt the merger rule where assault is the precedent felony in a felony-murder charge, for that seems the fairer rule to me. Nonetheless, I concur in the result in this case for the reason set forth in State v. Thompson, 88 Wn.2d 13, 17-18, 558 P.2d 202 (1977), where we stated:

While it may be that the felony murder statute is harsh, and while it does relieve the prosecution from the burden of proving intent to commit murder, it is the law of this state. The legislature recently modified some parts of our criminal code, effective July 1, 1976. However, the statutory context in question here was left unchanged.

The rejection by this court of the merger rule has not been challenged by the legislature during the nearly 10 years since Harris [State v. Harris, 69 Wn.2d 928, 421 P.2d 662 (1966)] ...

While the legislature did not adopt the merger rule following Harris, it had an opportunity to do so when it substantially modified the state criminal code effective July 1, 1976. Therefore, I view this case in the same light as one coming within our rule that following this court's construction of a statute, its reenactment without change indicates legislative approval of the construction. Consequently, I believe that if the merger rule is to be adopted for a felony-murder case where assault is the precedent felony, the legislature, rather than this court, should make the change.