Introduction

Common-Law Felony Murder

Introduction

An accidental death does not usually make the person who caused it a murderer, yet that same kind of death can be first-degree murder when it happens in the middle of a robbery. The explanation lies in the mental-state element of the crime. Murder is the unlawful killing of another human being committed with malice aforethought.¹ That phrase is a term of art, a label courts have stretched over several distinct mental states that bear little relation to the everyday meaning of its words.² Once no doctrine excuses the homicide or reduces it to voluntary manslaughter, malice exists if the defendant acted with any one of the recognized mental states.³ The first is a deliberate intent to kill, which is express malice.⁴ Two more are forms of implied malice, meaning malice the law infers from the defendant's state of mind rather than from a declared purpose to kill: a deliberate intent to inflict great bodily injury, and a reckless indifference to an unjustifiably high risk to human life, often called an abandoned and malignant heart.⁵ Each of these is an attitude toward the victim's life or safety, and outside the felony-murder rule, murder requires a mental state of this kind, such as an intent to kill or a conscious disregard for life.⁶ A defendant who kills with none of them seems to fall outside murder altogether.

The felony-murder rule reaches that result by substituting a different mental state for the missing ones: the intent to commit a felony supplies implied malice.⁷ California courts describe the doctrine as ascribing malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony, so that even inadvertent or accidental killings during a robbery are first-degree murder.⁸ Liability therefore depends on the defendant's intent to commit the underlying felony, and it requires neither an intent to kill nor implied malice of the ordinary kind.⁹ The substitution has deep roots, since at common law the intent to kill and the intent to commit a felony were alternative aspects of the single concept of malice aforethought.¹⁰

Most of the decisions in this chapter come from California, where Penal Code section 187 defines murder, section 188 recognizes express and implied malice, and section 189 makes a killing committed in the perpetration of certain listed felonies, robbery among them, murder of the first degree.¹¹ Those cases illustrate the common-law rule as codified, and jurisdictions differ in how they word and limit it. Illinois, for example, lists the commission of a forcible felony in its murder statute as an alternative to the intent-based definitions.¹² The California cases therefore show the shape of the rule, while the controlling text in any other state is that state's own statute. This chapter takes the doctrine in the order a problem presents it: how the felony takes the place of malice, why the rule exists and why it is contested, which felonies and which killers it reaches, how closely the death must connect to the felony, and what limits the Constitution and reform proposals place on the result. The first section begins with the substitution itself.

(see above)