# State v. Foy

> Supreme Court of Kansas · July 21, 1978 · 224 Kan. 558

URL: https://www.frixlaw.com/law-library/cases/9613779

## Case

- **Full name:** State of Kansas, Appellee, v. Roger D. Foy, Appellant
- **Court:** Supreme Court of Kansas
- **Decided:** July 21, 1978
- **Citations:** 224 Kan. 558; 582 P.2d 281; 1978 Kan. LEXIS 307
- **Precedential status:** Published
- **Opinion:** Concurring in part by Prager
- **Judges:** Schroeder, Prager, Miller
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9613779

## Opinion text

Prager, J.,
concurring and dissenting: I concur in the reversal of the case and the granting of a new trial. I respectfully dissent from syllabus ¶ 3 and the corresponding portions of the opinion. I cannot agree with the majority that the felony-murder rule is applicable under the circumstances of this case. Essentially, we have here a domestic quarrel, aggravated by alcohol abuse. It is clear from the record that the defendant, Roger D. Foy, and his deceased wife, Sharon, had had a stormy marital relationship. It appears that some of their marital difficulties may have been the result of interference by Sharon’s mother. On the evening of the homicide, defendant Foy went to the home of his mother-in-law for the purpose of talking with Sharon. It is undisputed that he carried with him a gun which he admitted he intended to use to scare away his mother-in-law, if she again interfered. The defendant simply opened the front door of the house and walked in. He found his mother-in-law and Sharon watching television. It appears that Sharon told the defendant to leave, since he was not supposed to be “in mamma’s house.” She threatened to call the law if he did not leave. At this point the evidence is somewhat conflicting and could reasonably lead to one of several conclusions. The shooting of Sharon by the defendant may have been a malicious and willful act or, according to the testimony of the defendant, it could have been accidental. The majority opinion holds that the felony-murder doctrine could be applicable in this case since the defendant may have committed an aggravated burglary if the jury should find he entered the house without permission, having an intent to commit an aggravated assault.
In my judgment, an instruction on the felony-murder doctrine was not warranted in this case. In State v. Wilson, 220 Kan. 341 , 552 P.2d 931 (1976), we stated that the purpose of the felony-murder rule is to relieve the state of the burden of proving premeditation and malice when the victim’s death is caused by the killer while he is committing another felony. The rationale of the rule was said to be that the killer’s malignant purpose is established by proof of intent to commit the collateral felony. The *571 application of the felony-murder rule is subject to the limitation that the elements constituting the other felony must be so distinct from that of the homicide so as not to be ingredients of the homicide itself. In State v. Fisher, 120 Kan. 226 , 243 Pac. 291 (1926), this court held that an aggravated assault which resulted in a homicide could not be utilized as an independent felony to invoice the felony-murder doctrine. The rationale of Fisher is applicable in this case. Here the aggravated burglary, the independent felony required for invocation of the felony-murder rule, had as an essential element, the intent to commit an aggravated assault. The same intent is then used as an element of the homicide itself. I, of course, agree that in a proper case a burglary may be used to invoke the felony-murder rule. I cannot agree that an intent to commit the same assault may be used both as an element of the burglary and also as an element of the homicide so as to make the felony-murder rule applicable. For a case reaching this conclusion see People v. Wilson, 1 Cal. 3d 431 , 462 P.2d 22 , 82 Cal. Rptr. 494 (1969).
I have also concluded that the case must be reversed because an instruction given by the trial court permitted the jury to convict the defendant of murder in the first degree if the killing occurred during the perpetration of an aggravated assault. This instruction is directly contrary to the rule recognized in syllabus ¶ 3 of the majority opinion that the felony-murder doctrine is not applicable in cases of felonious assault resulting in death, because the assault mérges into the homicide. I quote verbatim instruction 2-A given by the trial court:
“No. 2-A
“The defendant is charged with the crime of murder in the first degree, during the perpetration of a felony. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant killed Sharon Foy;
“2. That such killing was done in the commission of Aggravated burglary, a felony, and,
“3. That this act occurred on or about the 20th day of January 1976 in Ford County, Kansas.
“In order for the State to prove the defendant guilty of murder in the first degree committed during the perpetration of the felony of aggravated burglary, each of the following elements of aggravated burglary must be proved:
“1. That the defendant knowingly entered a building at 1006 5th Ave.
“2. That the defendant did so without authority;
“3. That the defendant had the intent to commit a felony therein, to-wit, either the murder of Grace Kruelhaus or the aggravated assault of Grace Kruelhaus
*572 “4. At the time there was a human being in 1006 5th Ave., and,
“5. That this act occurred on or about the 20th day of January 1976 in Ford County, Kansas
“In order for the State to prove the defendant guilty of murder in the first degree committed during the perpetration of the felony of aggravated assault, each of the following, elements of Aggravated Assault must be proved:
“1. That the defendant intentionally threatened or attempted to do bodily harm to Grace Kruelhous.
“2. That he had apparent ability to cause such bodily harm;
“3. That defendant’s conduct resulted in Grace Kruelhous being in immediate apprehension of bodily harm;
“4. (a) That the defendant used a deadly weapon, or,
(b) That the defendant did so with intent to commit Murder, a felony; and
“5. That this act occurred on or about the 20th day of January 1976 in Ford County, Kansas.
“No bodily contact is necessary.” (Emphasis supplied.)
The final paragraph of the instruction clearly permits the jury to find the defendant guilty of murder in the first degree if the killing was committed during the perpetration of the felony of aggravated assault. That portion of the instruction can mean nothing else. It was prejudicial error to give such an instruction — especially since counsel have agreed that the jury found the defendant guilty of felony murder as defined by instruction 2-A.
Miller, J., joins in the foregoing concurring and dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9613779. Public record. Not legal advice.