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 In Ferlin, 203 Cal. 587, the defendant hired Skala to commit arson and purchased gasoline used in the arson, but he apparently did not otherwise actively participate in the crime and was not present at the scene of the arson. Skala burned to death while committing the arson. (Id. at p. 590.) The court held that the defendant was improperly convicted of felony murder.  “It would not be seriously contended that one accidentally killing himself while engaged in the commission of a felony was guilty of murder. If the defendant herein is guilty of murder because of the accidental killing of his co-conspirator then it must follow that Skala was also guilty of murder, and if he had recovered from his burns that he would have been guilty of an attempt to commit murder.” (Id. at p. 596.) “It cannot be said from the record in the instant case that defendant and deceased had a common design that deceased should accidentally kill himself. Such an event was not in furtherance of the conspiracy, but entirely opposed to it.” (Id. at p. 597.)

Several Court of Appeal cases have followed Ferlin under ...

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