A Long Discourse on the Concept of Felony Murder in the United States
By: Birdsong
Every one of my Criminal Law students I teach must learn the felony murder rule. It is a necessary concept to understand in order to pass the Bar exam. For those of you who may wish to practice criminal law in Florida you should know that Florida utilizes felony murder its homicide prosecutions more than any other state in the U.S.
The common law felony murder rule provides that if a person kills another in doing or attempting to do an act amounting to a felony, the killing is murder.1 it does not matter whether the death was intended or the product of a reckless disregard for the risk to human life or criminally negligent behavior. Even completely unintended or accidental death may trigger murder liability for felons. Prosecutors and law enforcement find the rule attractive for it provides a formal track of liability which permits a conviction regardless of the juror’s assessment of culpability.
Felony murder is akin to strict liability crimes in that no mental element or mens rea must be proven. The felony murder rule operates in direct opposition to the fundamental principle of criminal law that liability ought to reflect culpability. Although some courts have suggested that the felony murder rule dispenses with the requirement of malice, the more usual explanation is that the intent to commit the felony constitutes the implied malice required for common law murder. In its strictest form the rule holds felons liable for murder even if the death occurs during preparation before or flight after the felony.7 Felony murder is defined by statute in most states and is usually graded as first degree murder. In states with a death penalty felony murderers are eligible for the death penalty.
The law of felony murder varies from state to state but many American courts have engrafted limitations on the rule.8 Deterrence is often cited as one justification for the felony murder doctrine. Judges and commentators often argue that the felony murder rule encourages criminals to reduce the number of felonies they commit and to take greater care to avoid causing death while committing a felony.
A number of commentators criticize the felony murder rule and some believe that its use should be abolished in the United States. Despite such criticism the continued use of the felony murder rule by prosecutors persists in most American states. It persists because our legal notion of punishment requires proportionality and proportionality requires grading. For example when Bonnie and Clyde rob the local liquor store at gunpoint they should be punished for committing a felony. Ten years in jail may be adequate if no one is hurt. However, if during that liquor store robbery the store clerk reaches for a .38 caliber handgun under the counter and Bonnie fires her Tommy gun at the clerk but misses and kills an innocent store patron the punishment should be enhanced exponentially for this is felony murder. Simply put we grade a robbery plus a killing higher than a mere robbery. The punishment for such crime could be up to life in prison or even death. Felony murder draws a higher punishment for a killing during the commission of an unlawful act.
This article examines how we came to have a felony murder rule in the United States. Conventional legal wisdom presumes that the felony murder rule derives from English common law and supposedly has “deep but terribly obscure roots.” Ironically, the felony murder rule was abolished in England in 1957. This article will explore the historic origins of the felony murder doctrine and its development to compare whether modern felony murder rule statutes used in a number of U.S. jurisdictions derive from the historic formulations.
The first part of this article will provide a history of the felony murder doctrine that will show that the felony murder rule did not enjoy a long common law tradition in England. Instead, the doctrine was rooted in English law, as a result of the writings of English legal commentators but not widely applied in English criminal cases.
The second part of this article will examine how the felony murder rule may have come to the United States and has been utilized in more expansive ways than envisioned in England as a result of penal reform statues first initiated by the state of Pennsylvania.
The article concludes by comparing a representative sample of modern day American felony murder statues against the historical felony murder doctrine formulated by the early English commentators.
II. HISTORICAL BACKGROUND
A. A Brief History of English Felony Murder
1. BRACTON AND EARLY THINKING ON FELONY MURDER
The English sources of the felony murder rule are not a long line of judicial decisions but mainly scholarly commentaries.1 The felony murder rule may have grown out of the notion that unintended harms that result from the doing of an unlawful act should be punished severely. One commentator contends that the principle that an actor is responsible for the unintended harms resulting from an unlawful act is ancient, with roots in Christian ethics and common law.15
The early English common law of criminal homicide began with the principle that all people who cause death, whether intentionally or accidentally were liable for murder. There was no felony murder rule during this early formation of the English common law.
The English jurist and cleric, Bracton,17 writing in the mid thirteenth century applied canon law ideas to the crime of homicide.18 Bracton wrote that accidental killing was no homicide “because a crime is not committed unless the intention (motive) to injure exists” and in crimes the intention is regarded not the result.” In discussing homicide, Bracton also wrote:
by chance, as by misadventure, when one throws a stone at a bird…and another passing by is unexpectantly struck dies * * * here we must distinguish whether he has been engaged in a proper or an improper act. Improper, as where one has thrown a stone toward a place where men are accustomed to pass, or while one is chasing a horse or ox someone is trampled by the horse or ox and the like here. But if he was engaged in a lawful act * * * liability is not imputed to him
According to Bracton the one who threw the stone and did so while engaging in an improper act would be guilty of homicide. He did not say guilty of “murder” but it would be a killing which may require penance. Perhaps, through some form of punishment or fine for such an unintended death. This church notion may well be the root of the felony murder rule: punishment for an unintended death occurring during the course of some other unlawful act.
Until the mid-eighteenth century, the problem of killing in the course of an unlawful act was always considered as a rejoinder to the defensive claim of accidental killing. In the thirteenth century when Bracton was writing this presumptive liability for murder was subject to royal pardons as a matter of course if the killing occurred accidentally (per infortunium) or under necessity of self preservation (se defendo).
The principle recognized by the later English commentators Coke, Hale and Hawkins in the seventeenth century was that the excuse of per infortunium was not available to one whose hands were soiled by an accidental killing occurring in the course of an unlawful act. This principle was not yet a fully blown felony murder rule but we see an expansion on Bracton’s early embryonic thinking concerning homicide occurring during an improper act.
This principle of a killing with soiled hands was a theory for rejecting an excuse which eventually became a formal test of liability for felony murder. Pursuant to this early thinking it was not implausible to deny an excuse to someone who had acted wrongfully in creating the situation for which the excuse must be asserted. This came to be known as “unlawful act murder.” Perhaps, this early thinking concerning unlawful act murder supports our modern American notion for the need for the use of felony murder: proportionality of punishment. If Jean Valjean stole bread because he was poor and his family was starving our modern society might excuse him for the petty theft by placing him on probation or placing him in a diversion program. However, if Jean Valjean accidentally shot and killed the baker of the bread while fleeing with the purloined loaf our justice system would support a prosecution for a felony murder which would deny an excuse to Jean Valjean because he had acted wrongfully by creating the situation for which the excuse would be asserted. Many of our modern felony murder statutes are written just this way.
2. THE FELONY MURDER FOUNDATION CASES
Commentators often trace the first manifestation of the felony murder rule in an English court to Lord Dacrces’ case in 1535.28 Lord Dacres and his hunting party agreed to trespass in a park to hunt game. They agreed to kill anyone who opposed their plan. One of the Lord‘s party killed a gamekeeper who confronted him in the park. Although not physically present at the site of the killing, Lord Dacres was also held responsible for the killing. He was subsequently convicted of murder and hanged with the others in the hunting party. Another early case which has been cited for the origin of the felony murder rule was decided twenty three years after Lord Dacres’ Case. In Mansell and Herbert’s case, 35 Herbert and a group of followers went to Sir Richard Mansfield’s house “with force to seize goods under pretence of lawful authority”. One of Herbert’s servants threw a stone at a person in the gateway which instead hit and killed an unarmed servant coming out of Mansfield’s house. The question at issue in the case was agreed by the court to be whether the accused were guilty of murder or manslaughter. Since misadventure39 was not considered, it was assumed that the throwing of the stone was not a careless act. That is, the servant who threw the stone intended to at least hit, if not kill, some person on Mansfield’s side. Although the court divided, the majority held that if one deliberately performed an act of violence toward third parties, and a person not intended died, it was murder regardless of any mistake or misapplication of force.
Herbert’s case is important to our modern thinking on felony murder because it involved a deliberate act of violence against a person, which resulted in an unintended person being the recipient of the violent act. Thus, the court employed a notion of transferred intent. Modern felony murder statutes are often written to address such situation. Such situation may occur when Bonnie and Clyde rob the local liquor store with drawn Tommy guns. The store clerk pulls a .38 caliber revolver hidden under the counter. Bonnie reacts by firing her Tommy gun at the clerk but misses and kills an innocent patron of the store. Pursuant to most felony murder statutes in U. S. jurisdictions both Bonnie and Clyde would be guilty of felony murder because Bonnie deliberately performed an act of violence during an unlawful act and a person not intended died by mistake or misapplication of force.
3. THE ENGLISH COMMENTATORS AND THEIR THINKING
In 1619, the commentator Michael Dalton stated the general proposition that an accidental killing in the course of an unlawful act was felonious. He wrote:
“But if a man be doing of an unlawful act, though without any evil intent, and he happenth by chance, to kill a man, this is felony, viz. manslaughter at least if not murder in regard the thing he was doing was unlawful”44
The use of the word “felony” in Dalton’s proposition brings us closer to, but still not yet to felony murder as we know it in most U.S. jurisdictions.
Almost one hundred years after Mansell and Herbert’s case Lord Coke45 may have helped originate the felony murder doctrine when he wrote in one of his works published in 1644 “that a death caused by an unlawful act is murder.”46 The examples from which this first statement of the felony murder rule are quite humble:
If the act be unlawful it is murder. As if A meaning to steale a Deere in the Park of B, shooteth at the Deere, and by the glance of the arrow killeth a boy, that is hidden in a bush: this is murder, for that the act was unlawful, 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 Deere, and without any ill intent had killed the boy by the glance of his arrow, this had been homicide by misadventure, 47 and no felony.
So if one shoot at any wilde fowle upon a tree, and the arrow killeth any reasonable creature afar off, without any evil intent in him, this is per infortunium: 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 may have been confused when he made this statement making the death by an unlawful act as murder. That is not what Bracton had written back in the mid thirteenth century. Bracton wrote that such a killing would amount to “homicide.”
Professor Lanham reminds us that the chapter in which Coke’s statement appears was Chapter 8 of his commentary in The Second Year Book. This chapter is principally concerned with manslaughter. The doctrine of murder by unlawful act is stated just after Coke’s explanation of homicide by misadventure, which was “when a man doth an act that is not unlawful, which without any evil intent tendeth to a man’s death.”
Coke explains that homicide by misadventure is not felonious. It was in this context of the discussion that Coke states “that if the act is unlawful it is murder even if there was no intent to hurt a human. Such a statement contradicted Coke’s own treatment of the law of murder which he called the unlawful killing with malice aforethought. That is, there were two separate elements for murder – unlawfulness and malice. Lanham contends that it is erroneous to say “if the act be unlawful, it is murder, in light of the need to have malice as a factor in addition to unlawfulness.
The message that Coke may have been trying to convey was that an unintentional killing in the course of an unlawful act would be felonious. This would have been the proposition first put forth by the earlier commentator Dalton in 1619. Instead, we have been left with the harsh foundation of the modern day rule that a killing during the course of a felony is murder.
The court in People v. Aaron also found fault with Coke’s formulation of the felony murder rule. The court suggests that an incorrect version of Lord Dacres’ Case may have formed the basis of Lord Coke’s statement of the felony murder rule. Said court accepted the notion that the above often quoted excerpt from Coke about shooting at a deer in the park along with Lord Dacres’ and Herbert’s cases are most often cited for the origin of the felony murder doctrine. Yet, the court recognized that Coke’s statement had been criticized as completely lacking in authority and that there was no logic to the rule. What we now know as the felony rule may have resulted from a mistaken interpretation of unlawful act killing by Lord Coke.
Soon after Coke’s Third Institute was published a case was decided which implicitly rejected the doctrine of felony murder in the form that Coke stated the rule. In Sir John Chichester’s Case .62 Sir John and his servant were playing at foils, that is dueling. The chafe, or cover, of Sir John’s scabbard fell off. Neither party noticed. Sir John thrust the then deadly weapon into his servant’s belly and the servant died. The court held that as there was no intention to do mischief it was not murder but as the act was unlawful it was manslaughter.66
When Hale67 continued the discussion on felony murder near the end of the seventeenth century he reasoned that Coke’s example of shooting at a deer and killing a boy should be classified as manslaughter. Although this differed from Coke’s assessment of murder, it represented a shift in thinking concerning killing during an illegal act. For Hale the unlawful act itself became the ground for establishing the degree of criminal homicide.
While Hale confined the mental element of murder to an intent to harm, he also restricted the act element of murder to killing. An unlawful act involving a threat of injury, like robbery was malicious in Hale’s view. An unlawful motive for initiating violence was inconsistent with provocation which could mitigate murder to manslaughter. Thus, in Hale’s thinking if the robber kills in trying to overcome his victim or anyone resisting the robbery, he was guilty of murder. This thinking may be the root of the modern day trend of limiting felony murder to certain inherently dangerous felonies, sometimes called enumerated felonies.
In the early part of the eighteenth century the commentator Hawkins brought us closer to the modern day felony murder rule. He asserted in his writings that “a person who in the pursuance of a deliberate intention to commit a felony, chances to kill a man, as by shooting a tame fowl with intent to steal them is guilty of murder on the basis… whenever a man intending to commit one felony, happens to commit another he is as much guilty as if he had intended the felony which he actually commits.
This passage by Hawkins implies the following arguments: (1) Killing in the course of an unlawful act is murder only if accompanied by an “ill intent,” according to Hale’s writing on the subject;76 (2) Hale does not limit “ill intent” to kill but knowingly imposing a risk of death or injury; 77 (3) such a knowing imposition of risk is inherent in all crimes that would tend to provoke resistance; (4) felonies are a particularly heinous subset of such inherently dangerous crimes; (5) hence, the intent to commit a felony may be included within the “ill
intent” that qualifies killings in the course of unlawful acts as murder.
This is rather tortuous reasoning but very important in the historic formulation of the modern felony murder rule: a killing in the course of an unlawful act, where there is ill intent and where it is known that the act is reckless and may carry a risk of death or injury, then such act being a felony makes the killing done in the course of that unlawful act murder. This is almost the description of a modern version of the felony murder as set out in Model Penal Code.81
At least one scholar maintains that the true father of the modern felony murder rule is the commentator Foster. In 1762 he wrote his Discourse of Homicide wherein he took a new approach of the problem of the poacher who kills accidentally. The critical question for Foster was whether the poacher shooting at the deer intends to steal it. Foster concluded that if he did intend to steal it he is guilty of felony, and if he killed someone in the bush, “it will be murder by reason of the felonious intent.” For Foster, it was essential that the unlawful act was a felony, and in view of his rationale of transferred intent, it is presumably immaterial whether the felony is dangerous.
4. THE COMPLETED CLASSIC FELONY MURDER RULE
From a historical perspective the addition of Foster’s writing on felony murder has finally provided us with the full blown “classic” felony murder rule that criminal law professors teach first year law students every year: at common law any killing perpetrated during the course of any felony is murder.
As the forgoing demonstrates the rule did not appear full blown during one period. Instead, it was fashioned through the Lord Dacres’ and Herbert’s cases and through the legal commentators. Unlike many common law concepts the felony murder rule did not grow out of a line of court cases decisions over several centuries. In actuality the felony murder rule was not routinely used in the courts of England.
Professor Fletcher contends that the apology for Foster’s reconstruction of the law was that all felonies of the time were capital anyway, and there was no great evil in upgrading larceny and other felonies to murder. We often hear this today. That is, at early common law it made no difference whether the felon was convicted of the larceny or the killing incident to the felony for the felon would be hanged anyway. This is not completely true.
Fletcher maintains that it is false to say that in England during this time that it made no difference whether one was convicted of the larceny or the murder. In reality execution rates varied widely among capital felonies and such executions may not have been as widespread as sometimes thought. The law on the books in England concerning felony murder were not widely followed by the courts through the end of the eighteenth century and into the nineteenth century.
A few years after the appearance of Foster’s commentary Blackstone90 published his Commentaries on the Laws of England, which became the standard reference work on the common law for American colonial lawyers. In his Commentaries Blackstone offered a version of Hawkins general principle that the intent to commit one felony could transfer to an unintended felonious result. This notion of transferred intent which could be used to enhance the proportion of punishment may have well been the beginning of American jurisdictions love affair with the felony murder rule, even through it was not utilized very often in England and certainly was not an “ancient rule.”
Blackstone invoked Foster’s formulation of the felony murder rule:
In general, when an involuntary killing happens in consequence of an unlawful act, it will be either murder or manslaughter according to the nature of the act which occasioned it. If it be in prosecution of a felonious intent it will be murder; but if no more was intended than a mere trespass it will amount only to manslaughter.
Blackstone offered a rule like Hale’s emphasizing the dangerousness of the predicate crime rather than its felonious quality.
his is certainly a “Hale”-like limitation on the felony murder rule, and a limitation found in many American jurisdictions today.
The felony murder rule as a valid doctrine of English common law was utilized in few criminal trials and its use was surprisingly brief, perhaps only a century. Although Lord Dacres’ and Herbert’s cases provided the intellectual foundation by the commentators who fashioned the felony doctrine, it never became a rule in trials in England that felons were strictly liable for accidental deaths in the course of any felony. Instead, the felony had to be violent or manifestly dangerous. The much criticized and supposedly ancient rule of strict liability never existed in English law. As a matter of fact, there was no mention of the connection between felonies and murders until Foster’s rewriting of the law in 1762. The rule was not a part of the common law at the time of the American Revolution, and therefore it could not have been inherited.
Such a felony murder rule of the kind we know today could not have become a part of the law of any state in the newly formed United States unless that jurisdiction enacted it.
A. A Brief History of American Felony Murder
1. THE PENNSYLVANIA MURDER GRADING STATUTE
After our American Independence a number of the new states began legislative reforms to codify murder. One of the earliest states to do so was Pennsylvania. In 1794, that state enacted a murder degree statute which divided murder into first degree capital murder and second degree murder. The Pennsylvania legislature constricted the penalty for felony murder by imposing capital punishment only for such felonies as occurred in the perpetration of arson, rape, robbery or burglary. The statute further provided that all murder in the state other than ones committed in the perpetration of one of the common law felonies specified in their degree statute was to be second degree murder. Later the felony of kidnapping was added to the list of specified felonies for purposes of felony murder. Only first degree murder served as a basis for hanging. The Pennsylvania statute did not actually formulate a felony murder rule or define the elements of murder. Instead the statute identified participation in certain felonies as a grading element that aggravated murder liability. The statute prescribed that:
All murder, which shall be perpetrated by means of poison, or by laying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder in the first degree (emphasis added); and all other kinds of murder shall be murder in the second degree.120
The implication of the statute is that murder in the course of one of the enumerated felonies did not require willful, deliberate, and premeditate killing. The language of the statute does not suggest that the mere causing of death in the course of any felony was always murder. This idea is much more in line of what Lord Hale was proposing in his writings at the end of the seventeenth century and is similar to Judge Stephen’s jury instruction in the Serneˊ case: that it would be murder only if the felonious act was known to be dangerous to life and likely to cause death. The word “deemed” in the statute implies the notion that a judge or jury could weigh the facts of the case and decide whether the conduct of an accused warranted a charge of murder for which the accused could be hanged.
The Pennsylvania statute was enormously influential, shaping homicide reform statutes in two thirds of the then existing states during the nineteenth century. Twelve states adopted Pennsylvania’s grading scheme with little or no modification,125 and another nineteen adopted a somewhat modified grading scheme.126
2. LATER DEVELOPMENTS IN FELONY MURDER STATUTES
The first true felony murder rule statute was passed in Illinois in 1827.127 The Illinois statute defined murder as unlawful killing with express malice , or acting with knowledge that the acts will or probably will result in death or great bodily harm, and felony murder. The statute added that an “involuntary killing… in the commission of an unlawful act which in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent…shall be deemed and adjudged to be murder.” Again, we see the influence of Lord Hale and not Lord Coke. Illinois’s statute is a true felony murder statute. Yet, it is not a strict liability statute in that it is limits liability for an involuntary killing in the course of a felony that “tends to destroy the life of a human being.” It is not applicable to all felonies. Hale thought that it would be murder only if the felonious act was known to be dangerous to life and likely to cause death.
In 1829 a statute enacted in New Jersey included within murder killing “in committing, or attempting to commit, sodomy, rape, arson, robbery, or burglary, or any unlawful act against the peace of this state, of which the probable consequence may be bloodshed…” During that same year New York passed the strictest of the new felony murder rule statutes. Their statute defined murder as killing “without any design to effect death, by a person engaged in the commission of any felony.” At the end of the nineteenth century, nineteen states had adopted such differing kinds of felony murder statutes.132
The twentieth century began with most states having various ways for defining felony murder: predicating murder liability on implied malice, as well as a felony; predicating murder liability on dangerous felonies, sometimes called enumerated felonies, or predicating murder liability on any felony. Throughout the twentieth century and into the twenty first century we continue to see American states defining felony murder in the same ways. The growth of felony murder in the United States had more to do with Pennsylvania’s 1794 murder grading statute than it did with Lord Coke’s notion of the seventeenth century that a death caused by an unlawful act is murder.
The felony murder rule in the United States has been more expansive than that employed in England due to the pairing of two concepts. One, the concept of felony murder itself and the ways it may be defined by statute and two, the concept of vicarious liability used to hold all co-conspirators liable for the substantive crimes committed by any one of the conspirators in the course of executing the unlawful agreement that may have led to the felony murder. Such a situation may obtain when Bonnie and Clyde decide to rob the local liquor store and they enlist Clyde’s brother Buck to drive them to the liquor store, stay outside to act as a look out and to be their get away driver. Buck agrees. If during the robbery the store clerk reaches for his .38 revolver under the counter causing Bonnie to fire her Tommy gun at him but she misses and her bullets kills an innocent patron of the store, then Bonnie, Clyde, and Buck would all be held liable for and could each be convicted of conspiracy, felony murder and armed robbery.
With the foregoing perspective of the development of the felony murder in mind the next section will analyze a sample of modern felony murder rules statutes from various states. to determine the historical perspective of such modern statutes.
III. A BRIEF ANALYSIS OF A FEW MODERN FELONY MURDER STATUTES FROM A HISTORICAL PERSPECTIVE
While three states have abolished felony murder, every other jurisdiction of the United
States has retained it in some form.135 Most American states did not adopt the “classic” felony
doctrine that grew out of Lord Coke’s writings136 which held: if the act be unlawful it is murder.137 This concept was refined by other commentators and blossomed into what can be described as the “classic” felony murder from English common law that any killing perpetrated during the course of any felony was murder. Instead American courts and legislatures have restricted the felony murder doctrine in a number of ways.138
Such restrictions include enumerating only certain felonies for purposes of felony murder liability or limiting liability for felony murder based on who may have committed the killing or who was killed, such as one of the felons, a victim, or a bystander.
The vast majority of the states, thirty five, have adopted lists of enumerated felonies as the basis for felony murder liability.140 Our review of the brief history of American felony murder section II.B.1 of this article suggests that the concept of enumerated felonies grew out of the Pennsylvania murder grading statute of 1794. The enumerated felonies of most states are normally felonies that are inherently dangerous. That is, they are crimes so dangerous that their very undertaking by felons make it probable and foreseeable that death may ensue.
However, the true genesis of the concept of such enumerated felonies harks back to the thinking of Hale in the late seventeenth century. Although Hale did not used the term enumerated felonies, his analysis of unlawful act murder proved to be a shift in thinking to an act oriented approach to killing in the course of the unlawful act. For Hale the unlawful act became the ground for establishing the degree of criminal homicide, rather than denying the excuse of per infortunium. Such is the concept behind our modern day use of enumerated felonies. Hale believed that an unlawful act involving a threat of injury, like robbery was malicious.143 An unlawful motive for initiating violence was inconsistent with provocation which could mitigate murder to manslaughter. In Hale’s thinking if the robber kills in trying to overcome his victim or anyone resisting the robbery, he is guilty of murder. This notion undergirds our modern felony murder statutes regarding the use of enumerated felonies. Such enumerated felonies are ones that are malicious and may lead to death. Various states, also, restrict the scope of felony murder using limiting phrases. Most state legislatures have used one of three phrases in their felony murder statutes. The majority of statutes use language similar to the phrase “causes the death” to define felony murder. The other two common terms used in felony murder statutes are “killing”148 and “murder.” However, the terms “killing” and “murder” are not interchangeable. A legislature may not give any special meaning to the term “killing.” For instance the Kansas Supreme Court defined “killing as the act of one who kills,” whereas the term “murder” is a legal term defined as the unlawful killing of a human being with malice aforethought. Thus, the term killing is broader than murder.
This distinction between killing and murder is confusing and from a historical perspective in the formation and growth of the felony murder doctrine such confusion was demonstrated early on when we recall Bracton and Coke. In about the year 1250 Bracton wrote that the person who threw the stone while engaging in an unlawful act wherein the throwing of such stone resulted in an unintentional death to another would be guilty of “homicide.” Bracton did not write the person would be guilty of “murder.” Nevertheless, writing in the 1630’s Coke was surely confused when he wrote about a poacher shooting a deer in the park and shoots a boy hidden in the bush. Coke wrote: “if the act be unlawful it is murder.” Professor Lanham opines that the true message Coke may have been trying to convey was that an unintentional killing in the course of an unlawful act would be felonious. Modern day legislators writing or re-writing their felony murder should be mindful of the distinction between killing and murder.
As we have seen the “classic” felony murder rule that any killing during the course of any felony is murder was seldom used in the courts of England. Judge Fitzjames Stephen in the 1887 case of Regina v. Serneˊ instructed the jury that causing death in the course of a felony would be murder only if the felonious act “was known to be dangerous to life and likely to cause death.” In its trial practice the courts conditioned felony murder liability on a foreseeable dangerous act. The legislature of the state of Maine has fashioned its felony murder statute in a similar way. In Maine felony murder only applies when the defendant or another participant causes the death of a human being. Then the death must be “a reasonably foreseeable consequence of such commission, attempt or flight.” Historically Maine’s felony murder statute comports with the nineteenth century reasoning of Judge Stephen who believed that a rule imposing murder liability for an accidental killing in the course of a felony would be “perfectly barbarous and monstrous.
The commentators who fashioned the “classic” common law felony murder rule down through the years said little or nothing concerning co-felons who might be killed during the course of the felony. Should the surviving co-felon be hanged for his compatriot’s death? A number of modern day state legislators have sought to preclude application of the felony murder rule when the co-felon is killed.158 The states of Alaska, New Jersey, New York, Oregon and Washington employ in their felony murder statutes the phrase “other than one of the participant’s” to prevent the application of felony murder to the death of a co-felon.160 When the defendant, a bystander, or a police officer kills the defendant’s co-felon, the felony murder doctrine cannot be applied under this type of statute.161
Finally, a number of state legislatures, including Arkansas, Arizona, Colorado and North Dakota,162 have limited felony murder by employing the phrase “in furtherance of” the underlying felony. When an individual attempts to thwart the crime and individually kill another individual, felony murder does not apply because the killing was not committed in furtherance of the crime.163
IV. CONCLUSION
A purpose for enhanced sentencing for felons who kill in the course of their felonious conduct is proportionality. The punishment for a robbery where no one is killed is normally graded lower than a robbery in which there is a killing, as it should be. The felony murder rule is the vehicle many states use to enhance such punishment. Nevertheless, many of us know little of the origins of the felony murder rule.
This article has explored the historic origins of the felony murder doctrine and its development in an effort to compare whether modern felony murder rule statutes used in a number of U.S. jurisdictions truly do derive from the “classic” common law felony murder rule that all first years law students learn about.
The conclusion we come to by exploring the history of the common law development is that the felony murder doctrine did not enjoy a long common law tradition in England. Instead, the doctrine was rooted in English law, as a result of the writings of English legal commentators but not widely applied in English criminal cases. The felony murder rule may have been known to colonial American lawyers because of the popularity of Blackstone’s commentaries. However, it was the Pennsylvania murder grading statute of 1794 that made felony murder a popular legal concept in the United States. The felony murder rule has been utilized in more expansive ways than envisioned in England which abolished felony murder in 1957.
We find by comparing a representative sample of modern day American felony murder statues against the historical felony murder doctrine formulated by the early English commentators they bear little resemblance. America’s use of the felony murder doctrine with its many limitations has softened the harsh common law felony murder rule. In most American states legislatures have moved far from the notion of Lord Coke that if the act be unlawful it is murder. Perhaps, it is such softening of the rule that makes its use popular in many American jurisdictions while in England it was seldom used in the trial courts.
This is an excerpt of a Birdsong article, Felony Murder: A Historical Perspective By Which To Understand Today’s Modern Felony Murder Rule Statutes that was originally Published as the lead article in 32 Thurgood Marshall L. Rev. 1 (Fall 2006).
7 See, Rudolph J. Gerber, The Felony Murder Rule: Conundrum Without Principle, 21 Ariz. St. L.J. 763 at 763.
15 See, Guyana Binder, The Origins of American Felony Murder Rules, 57 Stan. L. R. 59 (2004) at p.73
17 Henry of Bratton (Henricus de Brattona or Bractona) was an English judge of the court known as coram rege (later King’s Bench) from 1247 – 1250 and again from 1253 – 1257. After his retirement in 1257, he continued to serve on judicial commissions. He was also a cleric, having various benefices, the last of which being the chancellorship of Exeter cathedral, where he was buried in 1268. Bracton’s chief work was his treatise De legibus et consuetuninibus Angliae (On the Laws and Customs of England. The work, now commonly known as Bracton, attempts to describe rationally the whole of English law. Such task was not again undertaken until Blackstone’s Commentaries on the Laws of England in the eighteenth century.
See, https://hlsl.law.harvard.edu/bracton/Common/
18 See, Binder, supra at note 15 at 74.
28 See, Case Note: Criminal Law, supra at note 5 at p. 611.See, also Lord Dacres’ Case, 72 Eng. Rep. 458 (KB 1535).
39 Mishap or misfortune.
44 See, Binder, supra, note 15 at p. 81 citing Michael Dalton, The Countrey Justice 225 (1619).
45 Sir Edward Coke lived from 1552 to 1634. He was a jurist whose wrtings on the English common law were the definitive legal text for over 100 years. He became a member of Parliament in 1589, Speaker of the House of Commons in 1592, and was appointed England’s Attorney General in 1593. He was appointed Chief Justice of the Court of Common Pleas in 1606. In 1613 he was elevated to Chief Justice of the King’s Bench where he continued his defense of the English common law against the encroachment by the ecclesiastical hierarchy, local courts controlled by the aristocracy, and meddling by the King. See, https://en.wikipedia.org/wiki/Edward—Coke._____
62 (1647) Aleyn 12; 82 E.R. 888.
66 See, Id. at 95, Lanham believes that an even stronger refutation of Coke’s principle occurred within two decades in Rex v. Hull ((1664) Kely. 40). Hull threw timber off a roof and shouted “stand clear.” One labourer below did not move and was killed by the timber. Hull was indicted for murder. Hyde. C. J. Would have held him guilty of manslaughter as he should have made sure that no one was there. Wylde and Kelyng JJ, however, held that it was a case of misadventure. They held that it would have been manslaughter if the act had been committed in London where continual concourse of people passed by.
67 Sir Matthew Hale of Kent lived from 1609 to 1676. He served as Lord Chief Justice of England from 1671 to 1676. His writings included his work Historia placitorum coronae (the history of the pleas of the crown). Hale was considered the greatest legal mind of the period in England. In addition to his writings concerning unlawful act killings he wrote on insanity. He stated that only total insanity could absolve a criminal from legal responsibility, a principle still prevalent in present day criminal law. Hale also believed the moon was responsible for mental disease, and he is thought to have coined the term “lunatic.” See, https://www.polybiblio.com/blroot/3755.html and https://www.yatesandmore.com/Hale/index.htm.
76 See, Binder, supra, note 15 at p. 90
77 Id.
81 § 210.2 (1) (b) of the Model Penal Code provides “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 deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
90 Sir William Blackstone lived from 1723 to 1780. He completed his legal studies at Oxford and was admitted to the Bar in 1746. In 1761he married Sarah Clitherow, with whom he had nine children. In the same year he was appointed a King’s Counselor and elected to the House of Commons. In 1770, he was knighted and accepted an appointment as a Justice of the Court of Common Pleas. Blackstone was often in poor health, and is said to have been irritable and impatient on the bench. He died at the age of 57 years old. See, https://earlyamerica.com/review/spring/blackstone.html and https://www.let.rug.nl/usa/B/blackstone.htm.
120 See, Binder, supra, note 15 at119.
125 Binder, supra, note 15 at 125 advises in his note 304 that the states which adopted the Pennsylvania statute as drafted were: Virginia in 1796, Kentucky from 1798 to 1801, Maryland in 1810, Louisiana from its admission from 1812 to 1855, Tennessee in 1829, Michigan in 1838, Arkansas in 1838, New Hampshire in 1842, Connecticut in 1846, Delaware in 1852, Massachusetts in 1858, and West Virginia, entering the Union with such a statute in 1863.
126 Binder, supra, note 15 at p.120 advises in his note 305 that the states that adopted the Pennsylvania statute with a somewhat grading scheme were :Ohio in 1815, Maine in 1840, Alabama in 1841, Missouri in 1845, Iowa in 1851, Indiana in 1852, California in 1856, Texas in 1858, New York in 1860, Kansas (entering the Union with such a law in 1861), Oregon in 1864, Nevada (entering the Union with such a law in 1864), Nebraska in 1873, Montana (entering the Union with such a law in 1889), Washington (entering the union with such law in 1889), Idaho (entering the Union with such a law in 1890), Wyoming (entering the Union with such a law in 1890), North Carolina in 1893, and Utah (entering the Union with such law in 1896).
127 See, Notes: People v. Dekens: The Expansion of the Felony-Murder Doctrine in Illinois, 30 Loy. Chi. L.J. 357 (1999) at 368.
132 Id, These states are: Illinois (1827), New Jersey (1829), Georgia (1833), Mississippi (1839), Alabama (1841), Missouri (1845), Wisconsin (1849), California (1850), Texas (1857), Minnesota (entering the Union with such a law in 1858), Nevada (entering the Union with such a law in 1864), Oregon (1864), Nebraska (1866, though repealing the law in 1873), Florida (1868), Colorado (entering the Union with such a law in 1876), Idaho and Montana (both entering the Union with such laws in 1889), and Utah (entering the Union with such a law in 1896).
136 Coke wrote about a poacher in a park who shoots at the deer and the arrow glances off and kills a boy hidden in the bush and determines that this is murder. This park scenarios is taken up later by Hale, Hawkins, Foster, and other commentators. Could it be that Coke’s example came from the poaching in the park in Lord Dacres’ case?
137 In the present day the State of New Mexico is the sole state that has a “classic” felony murder rule. N.M. Stat. Ann. § 30-2-1 (2005) provides: Murder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused: (1) by any kind of willful, deliberate and premeditated killing; (2) in the commission of or an attempt to commit any felony; or (3) by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life. Whoever commits murder in the first degree is guilty of a capital felony. (Emphasis added).
138 See, Notes: People v. Dekens: The Expansion of the Felony-Murder Doctrine in Illinois, 30 Loy. U. Chi. L.J. 357 (1999) at 368.
148 E.g. The district of Columbia felony murder rules provides in relevant part: Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice…or without to do so kills another in perpetrating or in attempting to perpetrate any arson,, first degree sexual abuse, first degree child sexual abuse, first degree cruelty to children, mayhem, robbery, or kidnapping, housebreaking while armed with or using a dangerous weapon, or perpetrating or attempting to perpetrate a felony involving a controlled substance is guilty of murder in the first degree. (Emphasis added)/
158 See, Kansas Felony Murder, supra at note 135 at 1059.
160 The Washington state felony murder statute is representative of such statutes. It provides: A person is guilty of first degree murder when……. c. He or she commits or attempts to commit the crime of either [Enumerated Felonies], and in the course or furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants… (emphasis added).
161 See, Kansas Felony Murder, supra at note 135 at 1060. Felony murder could, however, apply to other deaths caused during the commission of an underlying felony. This limitation does not preclude application when a bystander accidently kills a police officer or the intended felony victim kills a bystander,
162 See, respectively, Arkansas C.A. § 5-10-102 (2005); Ariz. R.S. § 13-1105; Colo. R.S. 18-102 (2005); N.D. Cent. Code § 12.1-16-01.
163 See, Kansas Felony Murder, supra at note 135 at 1061.