State v. Miller (1974)
In State v. Miller, 110 Ariz. 489, 520 P.2d 1113 (1974), the defendant broke into the home of his estranged wife with the intent to assault her.
The defendant's wife was struck in the hand by a bullet and her boyfriend was mortally wounded. The Arizona Supreme Court agreed with the defendant's contention that the assault could not justify a felony murder instruction because it merged into the homicide.
Nevertheless, the court upheld the trial court's felony murder instruction where the defendant's burglary was an alternative basis therefor.