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The Independent Felonious Purpose Limitation

Case: State v. Shock, 68 Mo. 552 (1878) [pp. 442-446, n. 2]

Facts: Δ beat a child pretty badly, and the child died. Issue is whether the felony-murder doctrine should apply.

Holding: No felony murder. At CL a homicide committed in the willful and malicious infliction of great bodily
harm was murder, though death was not intended; but this wasn’t because such infliction of great bodily harm
was in itself a felony, in the perpetration of which the homicide was committed, but because such infliction of
great bodily harm was an act malum in se, and the part is held liable for the harm. But such a homicide, where
death wasn’t intended, is not a willful deliberate and premeditated killing, and not murder committed during or
in furtherance of a felony, so not murder in 1st degree. A simple unintentional killing usually classed as murder
in the 2nd - but here it was deliberate and intentional. Court concludes that here the jury could find murder in
1st on the theory of a willful, deliberate and premeditated killing.

• The merger doctrine comes into play when statutes don’t have just enumerated predicate felonies, but
says something like dangerous felonies. Basically - the rule is that assault merges with murder.

Class Notes

• Merger Doctrine - its own limitation on the felony murder rule

o Not an exception to the felony murder - rather it goes along with it. Universal concept.
• The way the murder statute worked back then
o Murder = everything that was murder at CL
o Then it said, 1st degree murder were those that were premeditated, or committed in perpetration
of either an enumerated or other felony
• Problem with that - the jury instruction told the jury that they can convict the Δ of 1st
degree murder if they found he caused the death of the victim with the intention to cause
great bodily injury
 What's wrong with this instruction? –
• Murder at CL - need malice - prove malice by intent to kill or intent to
commit serious bodily injury, or abandoned & malignant heart, or felony
• At CL - prosecution could prove either intent to kill or intent to do
great bodily harm
• Problem is that it's only 1st degree murder (by the statute) if premeditated
or felony murder
• The instruction to the jury said you can convict of 1st degree if he
did with intent to do great bodily harm. Statute doesn’t say you can
do this.
• So, then the State tries to argue - this is felony murder
o Predicate felony is the assault with intent to commit great bodily harm (that was what established
the jury instruction).
• Problem - the predicate felony necessarily merges with the homicidal act
• Can't rely on any felony as predicate
o You can take any homicidal act (manslaughter) and make it murder
• Can't allow government to say they're guilty of committing involuntary manslaughter,
and in the course of committing involuntary manslaughter (the felony), because of the
death, use felony-murder rule, and so they're guilty of murder. It's all one act - you can't
bundle them together.
o The felony is not independent enough from the death to warrant felony murder. The felony has to
be independent of the homicidal act.
• Cases that don’t merge into the homicide:
o Robbery/rape - those felonies - there's an independent felonious purpose. They're necessarily
tied together.
o The notion of the felony murder doctrine - it's a very unusual thing (usually require mens rea)
• If you allowed every assault to be a predicate felony, then everything becomes murder
 If u punch someone, and that person dies as a result - that becomes felony murder
- even though no intent to kill or do great bodily harm
• The whole concept of felony murder is that the mental state and the willingness to
commit the predicate felony is a form an indifference to human life
• When looking at merger - you're looking for an independent predicate felony that exists aside from the
homicidal act
o Something that has an independent purpose for committing the felony - not entangles with the
intention to hurt the victim
o Must be something separate from the homicide - something that serves as a proxy for malice –
• you have to prove malice in a more direct form if not an independent felony.
• Child abuse, if it leads to death - statutory crime
o Is this an independent felony or should it merge with the homicidal act itself?
• Argument for saying it should merge - just like every other assault, except it's on a child
• Argument for saying it's an independent felony (thereby allowing the felony murder rule)
- child abuse is qualitatively diff from assault. It's diff because you're abusing the most
vulnerable ppl in our society. It's about power - it has an independent purpose.
• So basic rule - don’t use assault as a predicate felony
o Exception would be: if you assault A, and B comes along to help A, and you intentionally shoot
B, then B's killing was a separate independent act. The assault is independent of the homicide
here. So you could use felony murder.
• So the assault on A is the proxy for malice, and you don’t have to prove the intent to kill
B (via felony murder)
o But, if you intend to shoot A, but miss and shoot B, can't use felony murder. Of course, you can
use transferred intent to prove murder otherwise.