In Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992), the supreme court reversed and remanded James Lee Allen's conviction for first-degree murder regarding the death of Robert Harris. Allen had been charged with premeditated and deliberate capital murder, which includes the lesser charge of purposeful first-degree murder. He had not been charged with capital-felony murder, but the trial court gave a first-degree felony murder instruction over his objection. The jury verdict did not reflect whether it had found Allen guilty of first-degree premeditated murder or first-degree felony murder.
The supreme court reversed the conviction because it concluded that Allen may have been convicted of first-degree felony murder although he had never been charged with that crime. Because the felony murder charge was never filed, the court concluded that it could neither remand nor dismiss it. But in view of its decision to remand the premeditated murder charge that was filed and in anticipation that the State might seek to amend the information to include a felony-murder count, the court addressed the State's contention that Allen's action in firing a pistol at the homicide victim constituted the underlying felony of aggravated assault so as to warrant the trial court's decision to issue the felony-murder jury instruction:
The proof showed that appellant fired a pistol when he killed the victim. At trial, the State contended that firing the pistol constituted the underlying felony of aggravated assault, and on that basis the trial court gave the felony-murder instruction. That was a misconstruction of the felony-murder statute. Under the first degree felony-murder statute, "a person commits murder in the first degree if . . . he commits . . . a felony, and in the course of and in the furtherance of the felony . . . causes the death of any person . . . ." Ark. Code Ann. 5-10-102 (Supp. 1991). The assault in this case was only in the furtherance of the murder, not of some other felony. . . . In sum, under the proof, the appellant would not be guilty of felony-murder even if he were so charged. (310 Ark. at 388, 838 S.W.2d at 348.)