This section contains the nature of the case and procedural background.

Ds agreed with each other and with a fifth person, Eugene Edgar Weick, to seize by force a quantity of marijuana held illegally by Robert and Kathy Fitzgerald. Frank Weick, Eugene Weick, and Messick armed themselves with loaded sawed-off shotguns. Then they and Ds Jerry and Gary Connelly proceeded to the Fitzgerald residence. Messick, his shotgun hidden under his coat, was admitted to the house by Robert Fitzgerald. Once inside, Messick produced the shotgun and forced Fitzgerald into a rear room of the house. Frank Weick trained his shotgun on Fitzgerald through a window in that room. Kathy Fitzgerald observed what was occurring in the rear of the house and obtained a 30-30 caliber rifle. She observed Eugene Weick breaking through the kitchen door. She fired the rifle at Eugene and the bullet struck him in the face. Messick and Frank Weick took Eugene with them and met the Connellys, who had been awaiting them in the getaway car. They all fled. Eugene subsequently died. Homicide charges were brought against Ds. Ds were convicted and appealed. Ds contend in part that § 635(2) was applied to them improperly in that it was used as the basis for convictions and sentences for the killing of a co-felon by the intended victim of the felony.

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