Examples to Show How Different and Better Dean's Law Dictionary Has Become.

Felony murder has never been a static, well-defined rule at common law, but throughout its history has been characterized by judicial reinterpretation to limit the harshness of the application of the rule. Some, dead set against the rule, historians and commentators have concluded that the rule is of questionable origin and that the reasons for the rule no longer exist, making it an anachronistic remnant, 'a historic survivor for which there is no logical or practical basis for existence in modern law'. Moreland, Kentucky Homicide Law With Recommendations, 51 Ky L J 59, 82 (1962).


The first formal statement of the doctrine is often said to be Lord Dacres' case, Moore 86; 72 Eng Rep 458 (KB, 1535). See, e.g., Crum, Causal Relations and the Felony-Murder Rule, 1952 Wash U L Quarterly 191; Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U of Pa L Rev 50, 58 (1956). Note, Recent Extensions of Felony Murder Rule, 31 Ind L J 534, fn 3 (1956). Lord Dacres and some companions agreed to enter a park without permission to hunt, an unlawful act, and to kill anyone who might resist them. 'Le Seignor Dacres & auters accord de enter en un pke & de hunter la, & de tuer touts que eux resisteront: & accordant al ceo ils entront en le Park, & un vient al un de eux, Et demand, que il avoit de faire la; & l'auter luy occide, le seignor esteant un quarter dun mile de cest leiu, & rien scavoit de ceo: uncore ceo fuit adjudge murder en luy, & en touts ses companions. Et auxi un auter vient en un Orchard, pur gatherer pears & un a luy vient & rebuke luy, & il luy tua, le quel fuit adjudge murder.' While Lord Dacres was a quarter of a mile away, one member of his group killed a gamekeeper who confronted him in the park. Although Lord Dacres was not present when the killing occurred, he, along with the rest of his companions, was convicted of murder and was hanged. Contrary to the construction placed on this case by those who see it as a source of the felony-murder rule, the holding was not that Lord Dacres and his companions were guilty of murder because they had joined in an unlawful hunt in the course of which a person was killed, but rather that those not present physically at the killing were held liable as principals on the theory of constructive presence. Moreover, because they had agreed previously to kill anyone who might resist them, all the members of the group shared in the mens rea of the crime. Kaye, The Early History of Murder and Manslaughter, Part II, 83 L Quarterly Rev 569, 578-579, 593 (1967); see, also, King v Borthwick, 1 Doug 207, 212; 99 Eng Rep 136, 138-139 (KB, 1779).


Thus, because Lord Dacres' case involved express malice, no doctrine finding malice from the intention to commit an unlawful act was necessary or in fact utilized. Note, Felony Murder as a First Degree Offense: An Anachronism Retained, 66 Yale L J 427, 430, fn 23 (1957) (hereinafter cited as Anachronism Retained); Recent Developments, Criminal Law: Felony-Murder Rule -- Felon's Responsibility for Death of Accomplice, 65 Colum L Rev 1496, fn 2 (1965) (hereinafter cited as Felon's Responsibility).


Another early case which has been cited for the origin of the felony-murder doctrine was decided after Lord Dacres' case. Anachronism Retained, fn 15 supra, p 431, fn 23; Recent Cases, Criminal Law -- Homicide, 59 Dickinson L Rev 183, 185 (1955); Recent Decisions, Criminal Law -- Murder -- Felony Murder Rule, 9 Duquesne L Rev 122, 123 (1970). In Mansell & Herbert's case, 2 Dyer 128b; 73 Eng Rep 279 (KB, 1558), Herbert and a group of more than 40 followers had gone to Sir Richard Mansfield's house 'with force to seize goods under pretence of lawful authority'. Taken from the syllabus of Dyer. 2 Dyer's Reports, translated by John Vaillant (1794). Further evidence of the defendants' intentions is supplied by the following excerpt from Herbert's case: 'And the party who came to take the goods proclaimed, and said (before his coming) 'that he would make him a Cokes who kept the goods;' and said also, 'that he would make him to know the basest in his house.'' One of Herbert's servants threw a stone at a person in the gateway which instead hit and killed an unarmed woman coming out of Mansfield's house. The question was agreed to be whether the accused were guilty of murder or manslaughter. Since misadventure was not considered, it can be assumed that the throwing of the stone was not a careless act but that the servant who threw the stone intended at least to hit, if not kill, some person on Mansfield's side. Kaye, fn 14 supra, 57. Although the court divided, the majority held that if one deliberately performed an act of violence to third parties, and a person not intended died, it was murder regardless of any mistake or misapplication of force. Id., pp 581, 589. The minority would have held it to be manslaughter because the violent act was not directed against the woman who died. Thus, Herbert's case involved a deliberate act of violence against a person, which resulted in an unintended person being the recipient of the violent act.


Some commentators (2 Mich Criminal Jury Instructions (Ann Arbor: Institute of Continuing Legal Education), Felony-Murder Commentary, pp 16-107 -- 16-109.) suggest that an incorrect version of Dacres' case, which was repeated by Crompton, (Kaye, fn 14 supra, p 593. The holding in Dacres' case regarding constructive presence was discussed in Herbert's case. However, Brooke, one of the judges in Herbert's case, was later to misconstrue the holding in Dacres' case, forgetting that it was not the unlawful hunt which made the killing murder in Dacres' case, rather it was the agreement to kill beforehand and the theory of constructive presence which combined to require the convictions of murder for Lord Dacres and his companions. Id.) formed the basis of Lord Coke's statement of the felony-murder rule: 'If the act be unlawful it is murder. As if A. meaning to steale a deere in the park of B., shooteth at the deer, and by the glance of the arrow killeth a boy that is hidden in a bush: this is murder, for that the act was unlawfull, although A. had no intent to hurt the boy, nor knew not of him. But if B. the owner of the park had shot at his own deer, and without any ill intent had killed the boy by the glance of his arrow, this had been homicide by misadventure, and no felony. 'So if one shoot at any wild fowle upon a tree, and the arrow killeth any reasonable creature afar off, without any evill intent in him, this is per infortunium [misadventure]: for it was not unlawful to shoot at the wilde fowle: but if he had shot at a cock or hen, or any tame fowle of another mans, and the arrow by mischance had killed a man, this had been murder, for the act was unlawfull.' Coke, Third Institutes (1797), p 56.


The above excerpt from Coke is, along with Lord Dacres' and Herbert's cases, most often cited (2 Torcia, Wharton's Criminal Law (14th ed), § 145, p 204; Hurst, Criminal Law -- The Felony-Murder Doctrine Repudiated, 36 Ky L J 106 (1947); Moesel, A Survey of Felony Murder, 28 Temple L Quarterly 453 (1955); 3 Stephen, Sir James Fitzjames, A History of the Criminal Law of England (London: MacMillan, 1883), p 57; Constructive Murder, 65 The Law Times 291 (1878) (hereinafter cited as Constructive Murder); 7A Hawaii Rev Stat, § 707-701, Commentary, p 345.) as the origin of the felony-murder doctrine. Professors Moreland and Perkins also give explanations for the origin of the felony-murder rule. Moreland sees the felony-murder rule as an extension of the doctrine of malice aforethought. For this proposition he cites Lambard, who states: ''And therefore if a thief do kill a man whom he never saw before and whom he intended to rob only, it is murder in the judgment of law, which implyeth a former malicious disposition in him rather to kill the man than not to have his money from him.'' 3 Stephen, fn 23 supra, pp 50-51.


Moreland observes that this was an attempt to justify the rule as an inference of fact in order to satisfy the definition of malice aforethought prevailing at that time. But, in Moreland's opinion, it does not carry conviction as such. Moreland, Law of Homicide (Indianapolis: Bobbs-Merrill, 1952), p 14. Stephen, commenting on the above passage from Lambard, states: 'The law can hardly be justified in 'presupposing' that a thief 'carryeth that malicious mind that he will achieve his purpose though it be with the death of him against whom it is directed,' from the fact that he trips a man up in order to rob him and happens to kill him.' 3 Stephen, fn 23 supra, p 51. Perkins contends that the primary purpose of the felony-murder rule was to deal with homicides committed during unsuccessful attempted felonies. An attempt to commit a felony was only a misdemeanor at common law. The felony-murder rule placed the defendant in the position he would have been in had the felony been successful without the homicide, for in either case it would be a capital crime. Perkins, Criminal Law (2d ed), p 44. Unfortunately, Coke's statement has been criticized as completely lacking in authority. 'A telling historical comment on the essential non-logic of the rule is made by those who see its genesis as a blunder by Coke in the translation and interpretation of a passage from Bracton.' Felon's Responsibility, fn 15, supra, p 1496, fn 2.


The passage from Bracton is as follows: 'But here it is to be distinguished whether a person is employed upon a lawful or unlawful work, as if a person has projected a stone towards a place across which men are accustomed to pass, or whilst a person pursues a horse or an ox, and some one has been struck by the horse or the ox, and such like, this is imputed to his account. But if he was employed in a lawful work, as if a master is flogging his scholar for the sake of discipline, or if when a person was casting down hay from a cart, or cutting into a tree and such like, if he had taken as diligent care as he could, by looking out and by calling out, * * * or the master not exceeding moderation in flogging his scholar, blame is not imputable to him.' (Emphasis added.) 2 Bracton, De Legibus Angliae (1879), p 277. One commentator questions whether this statement actually represents the law as it existed in Bracton's time. He also notes that the examples mentioned by Bracton are distinguished by willful action in the face of manifest danger to human safety. Wilner, Unintentional Homicide in the Commission of an Unlawful Act, 87 U of Pa L Rev 811 (1939).


This authority, however, does not support Coke's unwarranted extension which Stephen termed 'astonishing' (3 Stephen, fn 23 supra, p 57.) and 'monstrous'. Id., p 65. As one writer points out: 'It can be seen at a glance that all Bracton intends to convey by this is that the killing in the cases he mentions would be unlawful; he in no way states that it would amount to murder ('murdrum'), which term indeed had quite a special and peculiar significance at the time at which he wrote, being properly confined to crimes of the nature of secret assassinations. Bracton, in fact, was too familiar with the Roman law * * * to have made such a mistake.' Constructive Murder, fn 23 supra, p 292. Stephen notes also that the example Bracton uses would not come within the category of murder as Bracton defines it. 3 Stephen, fn 23 supra, p 58.


In addition to his citation to Bracton, Coke cites three cases to support his statement of the felony-murder rule. Yet Stephen, 'upon careful search into Coke's authority', concludes that Coke's statement of the rule is 'entirely unwarranted by the authorities which he quotes'. 'The first is the passage in Bracton already observed upon, in which Bracton says, that if a man unintentionally kills another in doing an unlawful act, 'hoc imputatur ei.' He does not say that such an act amounted to murder, and it would not fall under the definition of murder which he gives, nor does he say that such an offence was in his day punishable with death. As I have already said, he says that the punishment of homicide in his day was various (poena homicidii commissi facto variatur). As to the punishment given in this particular class of cases he is silent. The rest of Coke's authorities are three passages from the Year-books. The first is found not in the Year-books themselves but in FitzHerbert, Corone, 354, and is from the iter of Northampton in the third Edward III. This entry says that a jury found that a man killed a child by misadventure, having thrown a stone which fell on the child, whereupon the justices remanded him to wait for the king's pardon, and refused to let him out of prison on mainprise, but directed the sheriff to treat him humanely. This has obviously nothing to do with the matter. The first case referred to in the Year-books is 2 Hen 4, 18. The only case one can find to which this can possibly refer is No. 6 in 2 Hen 4, p 18, which is a well-known authority as to the liability of a man whose fire burns the goods of another. In the course of the argument Thyrning says that if a man kills another by misadventure the slayer forfeits his goods and must get his pardon. The Year-book of 11 Hen 7, p 23a, which is the other authority cited, says that if two men fight with sword and buckler by consent and one kills the other it is felony, unless they fight by the king's command; also that it is felony to kill a man by beating him, though without the intention of killing him. This, no doubt, says that to kill a man by an illegal act of personal violence is felony, though the act is not intended to kill, and it may be that the word 'felony' means murder and not manslaughter, as the last remark seems to refer to instances of premeditated violence; but be this as it may, it is a long way from the proposition for which Coke cites it.' Id., pp 57-58.


Another early writer, commenting on the harsh doctrine propounded by Coke, states, ''This is not distinguished by any statute but is the common law only of Sir Edward Coke'.' 6 Hobbes, English Works (1840), Dialogue of the Common Laws, pp 86, 87, as quoted in Moesel, fn 23 supra, p 453, fn 3. At early common law, the felony-murder rule went unchallenged because at that time practically all felonies were punishable by death. By a practice known as 'benefit of clergy' a defendant could avoid the death penalty. At early law, members of the clergy could be tried only by an ecclesiastical court. The test for determining entitlement to the benefit was the ability to read. The effect of the benefit was to shield from the death penalty those who qualified for its protection since a court of the Church could not pronounce a judgment of blood. However, a series of statutes in the late Fifteenth and early Sixteenth Centuries removed the more culpable homicides from the protection of the benefit of clergy. 12 Hen 7, c 7 (1496); 4 Hen 8, c 2 (1512); 23 Hen 8, c 1, §§ 3, 4 (1531); 1 Edw 6, c 12, § 10 (1547). Anachronism Retained, fn 15 supra, pp 428-429; Perkins, A Re-examination of Malice Aforethought, 43 Yale L J 537, 542-543 (1934); Moesel, fn 23, supra, p 455. It was, therefore, 'of no particular moment whether the condemned was hanged for the initial felony or for the death accidentally resulting from the felony'. Commonwealth v Redline, 391 Pa 486, 494; 137 A2d 472, 476 (1958). Accord, Powers v Commonwealth, 110 Ky 386, 414; 61 SW 735, 741 (1901); Perkins, fn 24 supra, p 44; 2 Torcia, fn 23 supra, § 147, p 212; 3 Stephen, fn 23 supra, pp 75-76; LaFave & Scott, Criminal Law, p 546, fn 4.


Thus, as Stephen and Perkins point out, no injustice was caused directly by application of the rule at that time. 3 Stephen, fn 23 supra, pp 75-76; Perkins, fn 24 supra, p 44. Hale, in his Pleas of the Crown, refused to extend the doctrine to include all unlawful acts and instead gave examples of killings resulting from unlawful acts, some of which he said were murders and others manslaughter. 1 Hale, Pleas of the Crown, p 465. See also Perkins, fn 24 supra, p 38; Moreland, fn 24 supra, p 42. Stephen understood Hale as requiring an act which was intended to inflict bodily injury of some kind or else the killing would be manslaughter. 3 Stephen, fn 23 supra, p 65. Chief Justice Holt, writing in Rex v Keate, Comberbach 406; 90 Eng Rep 557 (KB, 1697), said that Coke's statement was a very exaggerated proposition of law and that for unintentional homicides to constitute murder there must be an intent to commit a felony or a design to do mischief toward a person. See, also, Wilner, fn 26 supra, p 812; 3 Stephen, fn 23 supra, p 69. Foster stated that an unintentional killing resulting from an unlawful act would amount to murder only if done 'in the prosecution of a felonious intention'. Foster, Crown Law (2d ed, 1791), p 258. See also 3 Stephen, fn 23 supra, p 75. Stephen, commenting on Foster's statement of the rule, said, '[The] one rule is less bad than the other, principally because it is narrower.' Id. The only authority cited by Foster is the dictum of Holt, C.J., in Rex v Plummer, Kelyng 109; 84 Eng Rep 1103 (1701), which cited no other authority than Coke for the requirement of a felonious design. Id. Foster's position was reiterated by Hawkins, Blackstone and East. 1 Hawkins, Pleas of the Crown (8th ed, 1824), p 86; 4 Blackstone, Commentaries (Hammond ed, 1898), pp 192, 200-201; 1 East, Pleas of the Crown (1803), pp 255-260. See also Moreland, fn 24 supra, p 42; Moesel, fn 23 supra, p 453; Perkins, fn 33 supra, p 559. Case law of Nineteenth-Century England reflects the efforts of the English courts to limit the application of the felony-murder doctrine. See, e.g., Regina v Greenwood, 7 Cox, Crim Cas 404 (1857); Regina v Horsey, 3 F & F 287; 176 Eng Rep 129 (1862), culminating in Regina v Serne, 16 Cox, Crim Cas 311 (1887). In the latter case, involving a death resulting from arson, Judge Stephen instructed the jury as follows: '[Instead] of saying that any act done with intent to commit a felony and which causes death amounts to murder, it should be reasonable to say that any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony which causes death, should be murder.'


In Greenwood, defendant was charged with murder and rape of a child under ten. The trial judge instructed the jury that if they found that the prisoner had intercourse with the victim and she died from its effects, then that act being a felony, this would in itself be such malice as to justify them in returning a verdict of murder. The jury retired, but returned and told the judge that they were satisfied that the defendant had raped her and that her death resulted therefrom, but they were not agreed on finding defendant guilty of murder. The trial judge told them that under these circumstances, they could ignore the doctrine of constructive malice if they saw fit and find the defendant guilty of manslaughter, which they did.


In Horsey, defendant was charged with murder in connection with willfully setting fire to a stack of straw. The fire had spread to a barn and burned to death a man, possibly a tramp, who, unknown to defendant, was inside the barn. The defendant had already been convicted of the arson. The trial judge instructed the jury that where a defendant in the course of committing a felony caused the death of a human being, that was murder even though he did not intend it. And though it may appear unreasonable, it was the law and it was their duty to act upon it. However, obviously disliking the rule, the judge instructed the jury that if they found that the victim came in after defendant set fire to the stack of straw, that the victim's own act intervened between the death and the act of defendant. Thus his death could not be the natural and probable consequence of defendant's act. Seizing upon this 'preposterous loophole' (Moreland, fn 24 supra, p 43), the jury found defendant not guilty.


In the 20th century, the felony-murder doctrine was comparatively rarely invoked in England (Preveser, The English Homicide Act: A New Attempt to Revise the Law of Murder, 57 Colum L Rev 624, 635 (1957).) and in 1957 England abolished the felony-murder rule. Section 1 of England's Homicide Act, 1957, 5 & 6 Eliz 2, c 11, § 1, provides that a killing occurring in a felony-murder situation will not amount to murder unless done with the same malice aforethought as is required for all other murder. While only a few states (Hawaii, Kentucky, Ohio and Michigan) have followed the lead of Great Britain in abolishing felony murder, various legislative and judicial limitations on the doctrine have effectively narrowed the scope of the rule in the United States. Perkins states that the rule is 'somewhat in disfavor at the present time' and that 'courts apply it where the law requires, but they do so grudgingly and tend to restrict its application where circumstances permit'. Perkins, fn 24 supra, p 44.


The draftsmen of the Model Penal Code have summarized the limitations imposed by American courts as follows: Model Penal Code (Tentative Draft No 9, 1959), § 201.2, Comment 4, p 37. See also Perkins, fn 24 supra, p 43; 2 Torcia, fn 23 supra, § 147, pp 212-214; LaFave & Scott, fn 34 supra, pp 547-558; Michael & Wechsler, Criminal Law and Its Administration (Chicago: Foundation Press, 1940), pp 213-218; Adlerstein, Felony-Murder in the New Criminal Codes, 4 American Journal of Criminal Law 249 (1976); Ludwig, Foreseeable Death in Felony Murder, 18 U of Pittsburgh L Rev 51 (1956); Seibold, The Felony-Murder Rule: In Search of a Viable Doctrine, 23 Catholic Lawyer 133 (1978); State v Harrison, 90 NM 439, 441; 564 P2d 1321, 1323 (1977). The Model Penal Code creates a rebuttable presumption of recklessness manifesting extreme indifference to the value of human life if the actor was engaged in the commission, attempted commission or flight after commission of robbery, rape by force or intimidation, arson, burglary, kidnapping or felonious escape. The draftsmen of the code would have liked to have followed the British example by dispensing with felony murder but 'such a course was thought to be impolitic'. Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum L Rev 1425, 1446-1447 (1968). (1) 'The felonious act must be dangerous to life.' See, e.g., People v Pavlic, 227 Mich 562; 199 NW 373 (1924); Commonwealth v Bowden, 456 Pa 278; 309 A2d 714 (1973); Jenkins v State, 230 A2d 262 (Del, 1967), aff'd 395 U.S. 213; 89 S Ct 1677; 23 L Ed 2d 253 (1969); State v Moffitt, 199 Kan 514; 431 P2d 879 (1967); People v Washington, 62 Cal 2d 777; 44 Cal Rptr 442; 402 P.2d 130 (1965); People v Phillips, 64 Cal 2d 574; 51 Cal Rptr 225; 414 P2d 353 (1966); People v Goldvarg, 346 Ill 398; 178 NE 892 (1931); State v Thompson, 280 NC 202; 185 SE2d 666 (1972); People v Jeffrey Carter, 387 Mich 397; 197 NW2d 57 (1972); Pliemling v State, 46 Wis 516; 1 NW 278 (1879); People v Golson, 32 Ill 2d 398; 207 NE2d 68 (1965); Wade v State, 581 P2d 914 (Okla Crim App, 1978).


In determining whether a particular felony is 'inherently dangerous', California courts look to the elements of the felony in the abstract and not to the specific factual circumstances. Other courts consider both the nature of the felony and the individual factual circumstances. See Adlerstein, fn 47 supra, pp 252-253 and citations therein. See also Anno: What felonies are inherently or foreseeably dangerous to human life for purposes of felony-murder doctrine, 50 ALR3d 397. (2) and (3) 'The homicide must be a natural and probable consequence of the felonious act.' 'Death must be 'proximately' caused.' See, e.g., People v Louis Scott, 29 Mich App 549; 185 NW2d 576 (1971); Wade v State, fn 48 supra; State v Mauldin, 215 Kan 956, 958; 529 P2d 124, 126 (1974); State v Glover, 330 Mo 709; 50 SW2d 1049 (1932); State v Diebold, 152 Wash 68; 277 P 394 (1929); People v Treichel, 229 Mich 303; 200 NW 950 (1924); State v Leopold, 110 Conn 55; 147 A 118 (1929).


Courts have also required that the killing be the result of an act done in the furtherance of the felonious purpose and not merely coincidental to the perpetration of a felony. These cases often make distinctions based on the identity of the victim (i.e ., whether the decedent was the victim of the felony or whether he was someone else, e.g., a policeman or one of the felons) and the identity of the person causing the death. See, e.g., Commonwealth v Redline, fn 34 supra; Jackson v State, 92 NM 461; 589 P2d 1052 (1979); People v Jeffrey Carter, fn 48 supra; People v William Austin, 370 Mich 12; 120 NW2d 766 (1963); People v Washington, fn 48 supra; Commonwealth ex rel Smith v Myers, 438 Pa 218; 261 A2d 550 (1970); Commonwealth v Campbell, 89 Mass (7 Allen) 541; 83 Am Dec 705 (1863); People v Wood, 8 NY2d 48; 167 NE2d 736 (1960); Sheriff v Hicks, 89 Nev 78; 506 P2d 766 (1973); State v Canola, 73 NJ 206; 374 A2d 20 (1977); People v Morris, 1 Ill 3d 566; 274 NE2d 898 (1971). See also Anno: Criminal liability where act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 ALR3d 239. (4) 'The felony must be malum in se.' See, e.g., People v Samuel Scott, 6 Mich 287 (1859); People v Pavlic, fn 48 supra. (5) 'The act must be a common-law felony.' See, e.g., Commonwealth v Exler, 243 Pa 155; 89 A 968 (1914); State v Burrell, 120 NJL 277; 199 A 18 (1938). 'The period during which the felony is in the process of commission must be narrowly construed.' See, e.g., People v Archie Smith, 55 Mich App 184; 222 NW2d 172 (1974), aff'd in part 396 Mich 825 (1976); State v Diebold, fn 49 supra; People v Huter, 184 NY 237; 77 NE 6 (1906); People v Walsh, 262 NY 140; 186 NE 422 (1933); Huggins v State, 149 Miss 280; 115 So 213 (1928); State v Taylor, 173 La 1010; 139 So 463 (1931); State v Montgomery, 191 Neb 470; 215 NW2d 881 (1974); State v Golladay, 78 Wash 2d 121; 470 P2d 191 (1970), overruled on other grounds State v Arndt, 87 Wash 2d 374; 553 P2d 1328 (1976); People v Joyner, 32 App Div 2d 260; 301 NYS2d 215 (1969), rev'd 26 NY2d 106; 257 NE2d 26; 308 NYS2d 840 (1970); State v Opher, 38 Del 93; 188 A 257 (1936). See also Anno: What constitutes termination of felony for purpose of felony-murder rule, 58 ALR3d 851. 'The underlying felony must be 'independent' of the homicide.' See, e.g., Garrett v State, 573 SW2d 543 (Tex Crim App, 1978); People v Moran, 246 NY 100; 158 NE 35 (1927); State v Fisher, 120 Kan 226; 243 P 291 (1926); State v Severns, 158 Kan 453; 148 P2d 488 (1944); State v Shock, 68 Mo 552 (1878); People v Huter, fn 53 supra; People v Ireland, 70 Cal 2d 522; 450 P2d 580; 75 Cal Rptr 188 (1969). See also Anno: Application of felony-murder doctrine where the felony relied upon is an includable offense within the homicide, 40 ALR3d 1341. Particularly noteworthy are People v Wilson, 1 Cal 3d 431; 462 P2d 22; 82 Cal Rptr 494 (1969), and People v Sears, 2 Cal 3d 180; 465 P2d 847; 84 Cal Rptr 711 (1970), in which the California Supreme Court, while recognizing that the first-degree felony-murder statute literally required defendant's convictions, refused to uphold such convictions because 'the statutory source of the rule does not compel us to apply it in disregard of logic and reason'. People v Wilson, supra, 441.


Some courts, recognizing the questionable wisdom of the rule, have refused to extend it beyond what is required. '[We] do want to make clear how shaky are the basic premises on which [the felony-murder rule] rests. With so weak a foundation, it behooves us not to extend it further and indeed, to restrain it within the bounds it has always known.' Commonwealth ex rel Smith v Myers, 438 Pa 218, 227; 261 A2d 550, 555 (1970). 'We have thus recognized that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. Indeed, the rule itself has been abandoned by the courts of England, where it had its inception. It has been subjected to severe and sweeping criticism.' People v Phillips, 64 Cal 2d 574, 582-583; 51 Cal Rptr 225; 414 P2d 353, 360 (1966). See also People v Washington, fn 48 supra, 134; People v Henderson, 19 Cal 3d 86, 92-93; 137 Cal Rptr 1; 560 P2d 1180, 1183 (1977).


p.p1 {margin: 0.0px 0.0px 0.0px 0.0px; } p.p2 {margin: 0.0px 0.0px 0.0px 0.0px; ; min-height: 14.0px} p.p3 {margin: 0.0px 0.0px 0.0px 0.0px; ; color: #3366ff} span.s1 {color: #3366ff} span.s2 {color: #1f497d} span.s3 {color: #000000} span.s4 {color: #0070c0} ass="p1">Other courts have required a finding of a separate mens rea connected with the killing in addition to the intent associated with the felony. In State v Millette, 112 NH 458, 462; 299 A2d 150, 153 (1972), the Court stated: 'Neither the legislature nor our court ever adopted a presumption of malice from the commission of an unlawful act whether felony or misdemeanor. While language in our cases defining murder may be construed to presume malice from a homicide occurring during the commission of the named inherently dangerous felonies [citations omitted] malice remains an indispensable element in the crime of murder. 'Malice is not an inference of law from the mere act of killing; but like any other fact in issue, it must be found by the jury upon competent evidence.''


Similarly, New Mexico has declared that where a non-first-degree felony is involved, the presumption that the defendant has the requisite mens rea to commit first-degree murder 'is a legal fiction we no longer can support'. State v. Harrison, 90 NM 439, 442; 564 P2d 1321 (1977). The Iowa Supreme Court has recently ruled that the issue of malice aforethought necessary for murder must be submitted to the jury and that it may not be satisfied by proof of intent to commit the underlying felony. State v. Galloway, 275 NW2d 736, 738 (Iowa, 1979).


Many state legislatures have also been active in restricting the scope of felony murder by imposing additional limitations. Some states have specifically abolished the felony-murder doctrine. The commentary to Hawaii's murder statute is instructive as to that state's reasoning in abolishing the doctrine: 'Even in its limited formulation the felony-murder rule is still objectionable. It is not sound principle to convert an accidental, negligent, or reckless homicide into a murder simply because, without more, the killing was in furtherance of a criminal objective of some defined class. Engaging in certain penally-prohibited behavior may, of course, evidence a recklessness sufficient to establish manslaughter, or a practical certainty or intent, with respect to causing death, sufficient to establish murder, but such a finding is an independent determination which must rest on the facts of each case. 'In recognition of the trend toward, and the substantial body of criticism supporting, the abolition of the felony-murder rule, and because of the extremely questionable results which the rule has worked in other jurisdictions, the Code has eliminated from our law the felony-murder rule.' 7A Hawaii Rev Stat, § 707-701, Commentary, p 347.


Ohio (Ohio Rev Code Ann, § 2903.04 (Page)) has effectively abolished the felony-murder rule. It defines as involuntary manslaughter the death of another proximately resulting from the offender's commission or attempt to commit a felony. Manslaughter by definition does not require malice. As the primary purpose of the felony-murder rule is to supply malice from the underlying felony, the rule has no usefulness as such in Ohio. Seven states have downgraded the offense and consequently reduced the punishment. Alaska, Alas Stat, §§ 11.41.110, 11.41.115. Louisiana, La Rev Stat Ann, § 14:30:1. New York, NY Penal Law, § 125.25 (McKinney). Pennsylvania Pa Cons Stat Ann, tit 18, § 2502 (Purdon). and Utah Code Ann, § 76-5-203(1). have reduced it to second-degree murder. Minnesota (Minn Stat Ann, §§ 609.185, 609.195.) classifies felony murder as third-degree murder (with the exception of a killing in the course of criminal sexual conduct in the first or second degree committed with force or violence, which is punished as first-degree murder) which involves a sentence of not more than 25 years. Wisconsin (Wis Stat Ann, §§ 940.02(2), 939.50(3)(b).) makes felony murder a class B felony which is punishable by imprisonment not to exceed 20 years.


Three states require a demonstration of mens rea beyond the intent to cause the felony. The Arkansas statute Ark Stat Ann, § 41.1502 states that the defendant must cause the death 'under circumstances manifesting extreme indifference to the value of human life'. Delaware's first-degree murder statute Del Code, tit 11, § 636 requires that the defendant cause death recklessly in the course of a felony or with at least criminal negligence in the course of one of the enumerated felonies. It defines as second-degree murder death caused with criminal negligence in the course of non-enumerated felonies. Id., § 635. New Hampshire's capital and first-degree murder statutes require that death be caused knowingly in connection with certain enumerated felonies while its second-degree murder statute requires that death be caused 'recklessly under circumstances manifesting an extreme indifference to the value of human life'. NH Rev Stat Ann, §§ 630:1, 630:1-a, 630:1-b.


Some of the limitations on the felony-murder doctrine which have been imposed by the courts, as mentioned above, have been codified by statute. These limitations include restrictions on the underlying felony, requiring that it be forcible, violent or clearly dangerous to human life, See, e.g., Ala Code, § 13A-6-2; Ill Ann Stat, ch 38, § 9-1 (Smith-Hurd); Iowa Code Ann, § 707.2; Minn Stat Ann, § 609.185; Mont Rev Codes Ann, § 94-5-102; Tex Penal Code Ann, tit 5, § 19.02 (Vernon). that death be proximately caused, that death be a natural or probable consequence or a reasonably foreseeable consequence. See, e.g., Me Rev Stat, tit 17-A, § 202. of the commission or attempted commission of the felony, that the felon must have caused the death, See, e.g., Alabama, fn 73 supra; Ark, fn 69 supra; Cal Penal Code, §§ 187-189 (West); Miss Code Ann, § 97-3-19; NY, fn 64 supra; ND Cent Code, § 12.1-16-01; Or Rev Stat, § 163.115; Wash Rev Code Ann, § 9A.32.030. and that the victim must not be one of the felons. See, e.g., Colo Rev Stat, § 18-3-102; Conn Gen Stat, §§ 53a-54c; NJ Rev Stat Ann, § 2C:11-3a; NY, fn 64 supra, Or, fn 77 supra; Utah, fn 66 supra; Wash, Rev Code Ann, § 9A.32.030. Other restrictions of the common-law rule include the enumeration of felonies which are to be included within the felony-murder category, (The majority of states which have a statutory felony-murder rule enumerate the felonies included.) and the reduction to manslaughter of killings in the course of non-enumerated felonies. See, e.g., Idaho Code, § 18-4003.


The commentary following New York's revision of its felony-murder statute, deleting 'any felony' and inserting specifically enumerated felonies, states: 'The purpose of the indicated limitations is to exclude from felony murder, cases of accidental or not reasonably foreseeable fatality occurring in the course of a non-violent felony.' NY, fn 64 supra, 39 McKinney's Consolidated Laws of NY Ann, Part 1, Commentary, p 400. The limitation is a response to a significant aspect of the common-law felony-murder rule -- the fact that it ignores the relevance of factors, e.g., accident, which mitigate culpability.


Finally, a limitation of relatively recent origin is the availability of affirmative defenses where a defendant is not the only participant in the commission of the underlying felony. The New York statute provides, as do similar statutes of nine other states, an affirmative defense to the defendant when he: '(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and '(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and '(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and '(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.' The commentary to the New York statute states that the provision is premised 'upon the theory that the felony-murder doctrine, in its rigid automatic envelopment of all participants in the underlying felony, may be unduly harsh * * *'. Id., 39 McKinney's Consolidated Laws of NY Ann, Part 1, Commentary, p 401. The comment acknowledges that there may be some cases where it would be 'just and desirable to allow a non-killer defendant of relatively minor culpability a chance of extricating himself from liability for murder, though not, of course, from liability for the underlying felony'.


The numerous modifications and restrictions placed upon the common-law felony-murder doctrine by courts and legislatures reflect dissatisfaction with the harshness and injustice of the rule. Even though the felony-murder doctrine survives in this country, it bears increasingly less resemblance to the traditional felony-murder concept. To the extent that these modifications reduce the scope and significance of the common-law doctrine, they also call into question the continued existence of the doctrine itself. 


The felony-murder rule permits the felonious intent necessary to a murder conviction to be shown by the perpetration of or attempt to perpetrate a felony. Proof of intent to commit the underlying felony raises a conclusive presumption that the defendant possessed the necessary felonious intent to support conviction for the resulting murder, i.e., intentional, willful, and premeditated, with malice aforethought, if felony-murder, second degree, is charged, or these plus deliberation if felony-murder, first degree, is charged. State v. Jenkins, 494 S.W.2d 14 (Mo. 1973); State v. Jasper, 486 S.W.2d 268 (Mo. banc 1972). The rule does not make the underlying felony an element of the felony-murder; it merely provides an additional means of proving the requisite felonious intent for murder. State v. Jasper, supra; State v. Shuler, 486 S.W.2d 505 (Mo. 1972). But, some jurisdictions make the underlying felony an essential element of or the lessor included offense of murder. State v. Carroll, 282 N.C. 326, 193 S.E.2d 85 (1972); State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972), and Colle v. Henderson, 350 F. Supp. 1010 (W.D. La. 1972), interpret felony-murder rules so as to make the underlying felonies an essential element of or lesser included offense in the murder itself; and State v. Thomas, 114 N.J. Super. 360, 276 A.2d 391 (N.J. 1971), reached appellant's desired result by applying a 'same evidence test' as opposed to the dissimilar elements or separate or several offense test prevalent in Missouri. State v. Toombs, supra; Blockburger v. United States.


It is significant to note that nearly all jurisdictions place some limitation on the felonies which can support a murder conviction; such felonies must be either inherently dangerous or committed in a manner dangerous to life. See 40 Am.Jur.2d, Homicide Sec. 73; Annot., Felony-Murder -- 'Dangerous' Felonies, 50 A.L.R.3d 397; Note, 35 Journal of the Association of Trial Lawyers of America, supra. The 'inherently dangerous' test is to be preferred to the 'manner of commission' test in that it is consistent with the principles governing felony murder in the first degree, i.e., the manner of commission is irrelevant and the felony is viewed in the abstract. Furthermore, the manner of commission test becomes devoid of meaning by virtue of hindsight; if a death occurs, one can immediately consider that the felony was committed in a dangerous manner -- otherwise the death would not have occurred. And as the California supreme court so aptly stated, '. . . To fragmentize the 'course of conduct' of defendant so that the felony-murder rule applies if any segment of that conduct may be considered dangerous to life would widen the rule beyond calculation. It would then apply not only to the commission of specific felonies, which are themselves dangerous to life, but to the perpetration of any felony during which defendant may have acted in such a manner as to endanger life. . . . [The] number or nature of the contextual elements which could be incorporated into an expanded felony terminology would be limitless. We have been, and remain, unwilling to embark upon such an uncharted sea of felony murder.' People v. Satchell, supra, 98 Cal.Rptr. at 39-40, 489 P.2d at 1367-68. See also State v. Moffitt, 199 Kan. 514, 431 P.2d 879 (1967), where the supreme court of Kansas adopted the 'inherently dangerous' test. 


An unintended homicide occurring within the res gestae of an independent inherently dangerous felony. The crimes of burglary, arson, rape, robbery, mayhem, and in some jurisdictions child molestation and kidnapping, meet the requirements of an inherently dangerous felony. If the defendant shows any of the other states of malice aforethought formed prior to the commission of the felony, then felony murder will not lie. In order to charge felony murder, it must appear that the victim's death was attributable to an act committed by the defendant during the course of a felony or an attempted felony. (Once liability for an attempt lies or until the completion, which includes flight from the scene of the crime). For felony murder to lie, it must be more than a mere coincidence that the death occurred at that particular point in time. Redline: A justifiable killing of a co-felon by a third person cannot be imputed to the defendant. If a third person is killed, defendant can still be held liable under the felony murder rule. Washington: Killings committed by a third person in response to a felony cannot be imputed to the defendant under the felony murder. Felony murder is also considered to be first-degree murder in many jurisdictions.