## Facts

- The State charged Robert Mauldin with first-degree felony murder, alleging he killed Gary McCallon while perpetrating the felony of unlawfully selling heroin.
- The State’s proffered evidence (assumed true on the motion) was that Mauldin sold heroin to Steve Cottrell and McCallon on November 27, 1973.
- After the purchase, Cottrell and McCallon went to Cottrell’s apartment, where McCallon prepared and injected himself with the heroin.
- McCallon later died from an overdose.
- The trial court dismissed the felony-murder charge, reasoning the sale was complete before the overdose and the injection occurred out of Mauldin’s presence and without his assistance.
- The State took an interlocutory appeal from the dismissal.

## Issues

1. Whether the sole act of selling heroin, followed by the purchaser’s voluntary self-injection out of the seller’s presence and without the seller’s assistance resulting in death, constitutes a killing “committed in the perpetration of a felony” under Kansas’s felony-murder statute.

## Decision

- The Kansas Supreme Court affirmed the dismissal of the felony-murder charge.
- The court held that, on the alleged facts, the felony of selling heroin was complete before the death occurred.
- The court held the purchaser’s voluntary, independent injection and overdose did not occur “in the perpetration” of the sale for purposes of felony murder.

## Legal Principles

- Felony murder under K.S.A. 1973 Supp. 21-3401 requires the killing to occur in the perpetration or attempted perpetration of a felony, not merely after a prior felony that is a factual cause of the death.
- Penal statutes, including the felony-murder statute, are strictly construed; courts will not extend felony murder beyond the statute’s language.
- A victim’s voluntary, independent act occurring after completion of the felony and outside the defendant’s presence and assistance may prevent treating the later death as occurring during the felony.

## Conclusion

The court concluded that a completed heroin sale does not support felony-murder liability when the buyer later, without the seller’s presence or aid, voluntarily injects the drug and dies from an overdose; any expansion of felony murder to cover such facts is for the legislature.


State v. Mauldin, 215 Kan. 956, 529 P.2d 124 (Kan. 1974)