Felony Intent as Malice

Felony Intent as Malice

Murder requires malice aforethought, and each of the ordinary routes to malice asks the same kind of question: what was the defendant thinking about the death? An intent to kill, an intent to inflict grievous bodily harm, and extreme recklessness toward human life all locate the culpable state of mind in the defendant's attitude toward the victim or toward life itself. The felony-murder rule changes the subject of that inquiry. Under it, an intent to commit a felony supplies implied malice.¹ The law attributes malice to the defendant from the purpose behind the underlying crime, so the prosecution is excused from proving any mental state directed at the death.

The reason for allowing this substitution comes from what malice is for and from how hard it is to prove in one kind of case. Malice separates murder from lesser homicide by identifying a culpable state of mind toward the killing. When a death occurs in a fast, violent crime, that state of mind is among the hardest facts to establish. A pistol fires during a struggle that lasts a few seconds, the only direct evidence of what the defendant intended or foresaw in that instant is the defendant's own account, and a jury may doubt every inference drawn about the defendant's mind. The felony supplies a mental state that is far easier to prove, because the robbery, burglary, or arson is itself shown by ordinary evidence. The rule also puts every felon on notice in advance that any death caused in the course of a dangerous felony will be punished at the highest level of culpability. Whether that bargain is wise is a separate question, taken up in the final section of this chapter.

The substitution reaches only the mental-state element, and a pair of invented situations shows where it begins and ends. A hunter stumbles on a trail, his rifle discharges, and a companion dies. He had no intent to kill, no intent to injure, and no conscious disregard of a deadly risk, and nothing he was doing supplies malice in their place, so murder cannot rest on malice here. Change one fact: a burglar stumbles on the darkened staircase of the house being burgled, the pistol in hand discharges, and an occupant dies. The death is just as accidental, but now it follows an intent to commit a felony, and the common-law rule treats that intent as malice.² The prosecution must still prove an unlawful killing of another human being. Only the malice is supplied.

The two sections that follow take the substitution apart. The first examines what the felony intent supplies and what it excuses the prosecution from proving. The second examines how the substitution changes the jury's task, because the rule settles the question of malice instead of offering the jury a clue to weigh. Which felonies qualify and which killings count are left for the sections after that, so the next section stays with the mental-state element alone.

Implied Malice From the Felony

Malice aforethought can be proved in four ways at common law, and the first three share a feature: each asks what the defendant meant or knowingly risked in relation to a death. The fourth way changes the question to what the defendant meant to do in relation to a felony.³ Placed side by side, the four routes require the prosecution to prove the following:

• A deliberate intent to kill another human being, which is express malice.⁴
• A deliberate intent to inflict great bodily injury, which is a form of implied malice.⁵
• A reckless indifference to an unjustifiably high risk to human life, the so-called abandoned and malignant heart, which is also a form of implied malice.⁶
• An intent to commit a felony, which supplies implied malice under the felony-murder rule.⁷

Only the fourth item says nothing about the death. The first three each require a mental state aimed at the victim's life or safety, and the prosecution must prove that state from the circumstances of the killing. Under the fourth, the prosecution proves the felony intent, and the law treats that proof as malice for an unlawful killing committed in the course of the felony. Courts describe the effect with different verbs, saying that the rule presumes, ascribes, imputes, or implies malice.⁸ The label constructive malice, used in some jurisdictions, means nothing more than the intent to commit the underlying felony.⁹ Each description points to the same mechanism: the law supplies malice from the felony intent, and the prosecution does not have to find it in the defendant's attitude toward the death.

The substitution does not claim that a robber who intends to steal also intends to kill. The mental state required for the felony is different in every case from the malice aforethought required for murder, and the rule works by letting proof of the first establish the second as implied malice rather than express malice.¹⁰ That is why courts that loosely say the rule eliminates malice are speaking imprecisely. The felony-murder rule stands in for the conscious-disregard-for-life form of malice and describes a different form of malice, so the rule leaves malice in place as an element of murder and satisfies it by another route.¹¹ What the prosecution gives up is any need to prove an intent to kill, an intent to injure, or awareness of a deadly risk. What it keeps is the burden of proving the felony intent itself, together with an unlawful killing of another human being.

The felony route also differs from the abandoned and malignant heart in how much danger the prosecution must show. Depraved-heart malice demands a very high risk of death and, in many jurisdictions, proof that the defendant was aware of that risk. The felony route can operate on a considerably smaller risk, and it does not ask whether the felon foresaw it.¹² An arsonist whose fire creates a modest chance of killing a firefighter may be convicted of murder if a firefighter dies, while a person who carelessly burns trash and creates the identical danger may not have created enough risk for depraved-heart murder or even for recklessness-based manslaughter.¹³ The gap exists because the felony, and not the size of the risk, carries the culpability.

The sharpest consequence of the substitution is that an accidental death can be murder. In People v. Washington a California court explained that the felony-murder doctrine ascribes malice aforethought to a felon who kills in the perpetration of an inherently dangerous felony, so that inadvertent or accidental killings are first-degree murders when committed by felons in the perpetration of robbery.¹⁴ A standard teaching illustration shows how far that reaches. A bank robber carries only a realistic toy gun so that no one will be hurt, and an elderly customer, frightened by the announcement of the robbery, suffers a fatal heart attack. The robber rushes to the customer and performs CPR without success. The robber wanted no harm and tried to prevent it, yet the intent to rob supplies malice, and under the common-law rule the robber is guilty of murder.¹⁵ The robber's care is irrelevant to malice because the substituted mental state is the felony intent, which the robber plainly had. Whether a death is sufficiently connected to the felony is a separate causal requirement taken up later in this chapter.

Take away the felony and the substitution disappears, which shows that the felony intent is the fact doing the work. A delivery driver runs a stop sign, a traffic infraction and not a felony, and strikes a pedestrian who dies. The driver was careless, she was unaware of any deadly risk, and there is no felony intent to stand in for malice. The prosecution must then prove malice from the driver's own state of mind, because the shortcut that the felony-murder rule provides is unavailable.¹⁶ On facts of simple carelessness the likely result is manslaughter, a killing without malice, since murder would require awareness of the danger and a wanton disregard for life.¹⁷ The only variable that changed between this scene and the accidental robbery death is the presence of the felony intent, and that variable alone moved the case from murder to a lesser homicide.

The traditional explanation tried to present the substitution as a fact about the felon's mind. A thief who kills while robbing, the old reasoning ran, reveals a malicious disposition to kill rather than lose the goods, and because a victim might resist violently, the law presumed that the felon would kill if necessary to save the felon's own life.¹⁸ Later critics found the inference unconvincing, because a robber who trips a victim in the course of stealing and happens to kill has not revealed any plan to kill.¹⁹ Modern justifications drop the factual claim. When society has declared certain dangerous conduct felonious, a person who commits it cannot excuse a death by claiming ignorance of the danger, because the declaration itself gave warning.²⁰ The theory holds together only when the felony is of a kind whose commission itself shows disregard for human life, which is the reason the rule is confined to dangerous felonies.²¹ Where the rule goes further, it dispenses with any link between the felon's mind and the death, and one state high court has observed that this strains the basic principle that liability for a result requires some culpable mental state about that result.²² Which felonies qualify is taken up later in this chapter, and the next section first examines how the substitution changes the jury's task.

A Rule of Substantive Law

The substitution described above has a direct effect on what a jury is asked to decide. In an ordinary murder trial malice is an element, so the jury must find it from the circumstances of the killing, and the defense is free to contest it. In a felony-murder prosecution the jury decides whether the felony occurred and whether a killing connected to it followed, and the defendant's attitude toward the death drops out of the case. California describes the rule as a rule of substantive law and not merely an evidentiary shortcut to finding malice, because it withdraws from the jury any requirement of finding express malice or the implied malice that rests on an intent to kill.²⁴ No intentional act is needed beyond the attempt or the actual commission of the felony itself, and a robber who enters armed and intending to rob shows malice by the nature of the crime.²⁵

The weight of that statement appears when it is set beside an inference the jury may reject. When a person intentionally uses a deadly weapon, the factfinder may infer an intent to kill, but the inference is permissive, and jurors remain free to decline it if the rest of the evidence leaves them unpersuaded.²⁶ The ordinary implied-malice theory works the same way, since the trier of fact may infer malice from an act with a high probability of death, whereas under the felony-murder theory a defendant who kills during an inherently dangerous felony is deemed to have killed with malice aforethought as a matter of law.²⁷ Take a store holdup in which the pistol fires during a struggle. If the prosecution relies on the deadly-weapon inference, jurors may credit testimony that the gun was only meant to frighten and find no intent to kill. If the prosecution relies on felony murder, that same testimony has nothing left to rebut, because the intent to rob has already supplied the malice. A common error is to describe felony murder as an inference the jury may reject, when the rule gives the jury no such option.

The reason the substitution is conclusive follows from what it is meant to accomplish. The rule exists to reach the death the felon did not intend or foresee, and an inference that jurors could decline would fail in exactly those cases, because a killing that looks accidental is the one most likely to persuade a juror that malice is missing. A conclusive rule also gives predictable results, since the felon, the prosecutor, and the trial judge can all tell in advance that proof of the felony and a connected killing settles the question. The cost is that the jury no longer decides malice at all. Because the law supplies the malice, the killings the rule covers cannot be mitigated to manslaughter, even where, outside the felony-murder rule, provocation, mental defect, or intoxication would have kept malice from forming.²⁸ That cost is tolerable only when the felony itself is dangerous enough to justify the substitution, a limit taken up in the next section.

Courts have not agreed on a label for this effect, though they agree on the effect. Many opinions speak of a conclusive presumption of malice. In People v. Dillon the California Supreme Court observed that saying malice must be proved but is conclusively presumed from the felony intent is a circuitous way of saying that the prosecution need prove only the felony intent, and it treated the presumption as a procedural fiction masking a substantive rule that malice is not an element of felony murder.²⁹ The label has constitutional consequences, because due process requires the prosecution to prove every fact necessary to constitute the crime beyond a reasonable doubt, and a true presumption relieving it of proving malice would invite attack on that ground; Dillon reasoned that a rule of substantive law raises no presumption and so presents no such problem.³⁰ Other courts keep malice in the definition of murder and say the felony intent establishes it. In People v. Aaron the Michigan Supreme Court divided over whether malice is an element of felony murder, with the majority insisting that it is and a concurring and dissenting justice arguing that it is not.³¹ A separate opinion in the same case described the rule as a way of conclusively establishing the implied intent to kill through proof of the felony intent.³² Legislatures sometimes state the point directly, as the Georgia statute reviewed in Gregg v. Georgia did when it defined murder separately as causing a death in the commission of a felony "irrespective of malice," beside a malice-based definition.³³ Whichever vocabulary a jurisdiction uses, the jury hears no malice question once the qualifying felony and a connected killing are proved.

Two California cases show how this plays out in jury instructions, and they differ in one fact, which is whether the felony qualifies. In People v. Stamp robbers frightened a victim with advanced heart disease, who died of a heart attack brought on by the fright, and the court held the felony-murder rule applied because a killing in the perpetration of robbery is first-degree murder whether it is willful, deliberate and premeditated, or merely accidental or unintentional.³⁴ The jury there had to decide whether the robbery occurred and caused the death, and the intent to rob answered the malice question. In People v. Phillips the underlying felony was grand theft and the victim died. The prosecution admitted that grand theft is not inherently dangerous to life, and the court refused to enlarge the felony to include the defendant's dangerous course of conduct, so the felony-murder instruction should not have been given.³⁵ The error was prejudicial because the instruction withdrew the issue of malice from the jury and permitted conviction on the bare showing that the death proximately resulted from conduct amounting to grand theft, without any finding of express malice or of implied malice based on conscious disregard for life.³⁶

The Phillips result shows the other face of the rule. The shortcut is available only when the predicate felony qualifies; when it does not, the prosecution loses the shortcut and must show malice to the jury through the ordinary routes.³⁷ Taking the malice question from the jury is therefore defensible only if the felony justifies it, so the next section asks which felonies do.