¶1concurring in part and dissenting in part:
¶2While I concur in the affirmance of the conviction of Billie Roger Miller, I must dissent to the affirmance of the conviction of his co-defendant, Janet M. Sanders, for the reason that the evidence is entirely insufficient to support her conviction of the crime of Murder in the First Degree.
¶3To understand why this is so one must understand the radical change in the Oklahoma law of felony murder which was brought about when the Oklahoma Legislature in 1973 enacted 21 O.S., § 701.1, defining murder in the first degree which it made punishable by mandatory death.
¶4Under that statute’s predecessor, Section 701, which had since territorial times defined murder in Oklahoma, the existence of a design to effect death was not ■ an element of the crime of felony murder. The mens rea requirement of that crime was satisfied by the intent to commit the underlying felony which resulted in the death of the person killed. Since in a case under that statute it was not necessary that the person who committed the actual act of killing have a design to effect death, it was not necessary that his accomplices in the underlying felony have a design to effect death. See, e. g., Cornell v. State, 91 Okl.Cr. 175, 217 P.2d 528 (1950).
¶5This rule changed, however, when the Legislature in 1973 enacted Section 701.1, now repealed. To constitute the crime of murder in the first degree under that statute it was no longer sufficient that the killing occurred during the commission of a felony; the accused must also have had the design to effect death, that is, a specific intent to kill. See, Provo v. State, Okl.Cr., 549 P.2d 354, 356 (1976). If it be required that there be a showing that the actor in the killing had a specific design to kill during the felony, it clearly follows that there must be a showing from which the jury could infer that his accomplice shared that specific intent to kill. Not only is the record in this case devoid of such evidence against Janet Sanders, such evidence as there is concerning her knowledge and intent is entirely to the contrary.
¶6Janet Sanders’ counsel on appeal did not bring this issue to the attention of the Court. I, nonetheless, consider it so fundamental that it cannot be ignored.
¶7I would reverse the conviction of Janet Sanders for the crime of murder in the first degree with instructions to dismiss unless the State of Oklahoma be prepared on retrial to present additional evidence concerning her intent to kill.