Common Law Murder (Malice Aforethought)

(Second Degree in most jurisdictions)

Intentional Reckless Transferred

Intent/Reckless
Intent to Intent to Depraved Intent to
Kill Cause Heart Commit
Serious Reckless Inherently
Purposefully Bodily Indifference to Dangerous
human life
Knowingly Harm Felony
Purposefully
Knowingly
(Not in NY)
 Felony + A Death = Murder
 Felony Murder Doctrine: one is guilty of
murder if a death results from conduct during
the commission or attempted commission of
(or flight from) a dangerous felony
 Rule imposes strict liability for the death as long as
culpability for the underlying crime is proven; OR
 Doctrine may be based on theory of transferred
intent: intent proved for underlying felony is
transferred onto the killing.
 The MPC “Felony Murder” Rule
Section 210.2(1)(b) – Depraved Heart

 Criminal homicide constitutes murder when:

 “it is committed recklessly under circumstances
manifesting extreme indifference to the value of
human life. Such recklessness and indifference are
presumed if the actor is engaged or is an
accomplice in the commission of, or an attempt to
commit, or flight after committing or attempting
to commit robbery, rape or deviant sexual
intercourse by force or threat of force, arson,
burglary, kidnapping or felonious escape.”
 Felony Murder Defense
1. The defendant is not the one who committed
the actus reus that caused the death of
another (i.e. defendant did not pull the
trigger); AND
2. Defendant had no credible knowledge that a
co-felon intended to kill; AND
3. Defendant him/herself was unarmed
 Felony + Death = Murder but

Must be an Must comport Must prove

independent Must be with the timing proximate cause
felony inherently requirement
FLOYD - P. O. dangerous felony Death must have
INDICTMENT Cause of death been caused by
Felony must be Felony does not must occur during the felony
separate, collateral have primary the attempt,
act from act that objective of commission or Agency Theory:
results in killing physical harm but flight from felony
The felon (or co-
serious injury is a felon) must be the
Primary purpose of consequential, Cause of death agent of the death;
felony is NOT to secondary effect must occur prior to if non-felon causes
cause serious the time accused death, then the
physical injury or BRAKER felonies or reaches safe death is not legally
death (assault that enumerated in a harbor attributable to
causes death ≠ penal code felon
felony murder)
The Merger or Independent Felony Limitation

 Underlying crimes that are based upon an

intent to cause physical injury – merge into
the homicide unless they have an
independent felonious purpose
 Principal purpose of the underlying crime
cannot be the felonious assault upon the
person of the victim
 People v. Fuller

 Felony murder rule applied to an unintentionally caused death during

a high speed automobile chase
 Followed commission of nonviolent, daylight burglary of

unattended vehicle
 Penal Code: “All murder…which is committed in the perpetration of,
or attempt to perpetrate arson, rape, robbery, burglary, mayhem, or
lewd acts with a minor, is murder.”
 Includes killings caused intentionally, negligently or even

accidentally
 An accidental killing, resulting from a petty theft that happens to

be ‘burglary’ is equated with a premeditated murder

 How is this case decided in a jurisdiction that follows the MPC? Is it
homicide?
 The Inherently Dangerous Felony Limitation;
People v. Howard
 Underlying felony must be inherently dangerous
 Issue
 is the crime of driving with a willful or wanton disregard for the safety

of persons or property (while fleeing from pursuing police) an

inherently dangerous felony?
 Rule: see p. 342
 Felony Murder rule does not apply to all felonies; applicable only when the
underlying felony is deemed inherently dangerous
 To determine whether felony is dangerous by its very nature: felony

cannot be committed without creating a substantial risk that someone

will be killed
 A jury might find that the motorist has acted with malice by driving with
conscious disregard for the lives of others, and thus is guilty of murder –
but not that the motorist is guilty under the felony murder rule because he
violated a section of the Vehicle Code.
 Examples of inherently dangerous felonies, p. 343
 The defendant, looking for some easy money, decided to commit a robbery. He
knocked on the door of a house at nighttime, saying that he was the pizza man.
The victim, whose wife frequently ordered pizza, opened the door immediately.
The defendant punched him in the face, sending the victim sprawling. The victim
fell and hit his head on a bootjack in the hallway, and one of the forks of the
bootjack pierced the victim's skull. The defendant then grabbed the woman's
purse from the hallway and ran out, but he was apprehended as he was fleeing the
scene. The victim later died as a result of his injuries.
  
 What is the most serious crime of which the defendant can be convicted?
  
 (A) Involuntary manslaughter.
  
 (B) Depraved-heart murder.
  
 (C) Felony murder.
  
 (D) Robbery.
 A U.S. Army soldier was scheduled to ship out in one week for his third tour of duty overseas.
Desperate to find a way to avoid returning to a combat zone, the soldier convinced his friend
to shoot him in the foot in order to make the soldier medically exempt from further combat
duty. His friend agreed. The soldier and his friend went into the soldier's backyard, where the
soldier handed his friend a .357 Magnum. The soldier extended his left leg and turned away.
His friend aimed the weapon at the soldier's left foot and fired. However, the friend was
unprepared for the gun's large recoil, which threw off his aim. Instead of injuring the soldier's
foot, the bullet entered the back of his left thigh, piercing his femoral artery and causing the
soldier to bleed to death.
  
 What is the most serious crime of which the soldier's friend can be found guilty?
  
 (A) Felony murder.
  
 (B) Intent-to-cause-serious-bodily-harm murder.
  
 (C) Involuntary manslaughter.
  
 (D) Voluntary manslaughter.
 Felony Murder
Where’s Sophophone?

This Photo by Unknown Author is licensed under CC BY-SA-NC

Killings in the Perpetration or in Furtherance of a Felony
State v. Sophophone

Death of a Co-Felon during underlying felony

Facts – did the killing occur during the course of the felony?
Defendant’s Argument: in custody at time co-felon was shot and
killed by police officer
This = break in circumstances or intervening cause
“Time, distance, and the causal relationship between the
underlying felony and a killing are factors to be considered in
determining [whether the felony murder rule applies].”
Should the felony murder rule apply when the fatal act is performed
by a non-felon?
a. The Agency Approach (followed in this case)
b. The Proximate Causation Approach (followed in NY)