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
- 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.