The Felony-Murder Rule: In Search of A Viable Doctrine
The F elony-Murder Rule: In Search of A Viable Doctrine
Jeanne Hall Seibold
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Article 8
THE FELONY-MURDER
RULE: IN SEARCH OF A
VIABLE DOCTRINE*
INTRODUCTION
When a homicide has occurred during the perpetration of a felony, the
felony-murder doctrine recognizes the intent to commit the underlying
felony as a substitute for the mens rea normally required to support a
murder conviction.' As a result of widespread recognition of the harshness
* This article is a student work prepared by Jeanne Hall Seibold, a member of the St.
Thomas More Institute for Legal Research.
Under the felony-murder doctrine, the mens rea is established by proof of intent to commit
the underlying felony, on a theory of constructive intent. When first applied in England,
"constructive malice" was applied to all killing resulting from the commission of any
unlawful act. E. COKE, THIRD INSTITUTE 56 (6th ed. 1680). Foster dictated that the unlawful act must
be a felony. M. FOSTER, CROWN LAW 258 (2d ed. 1791). See 4 W. BLACKSTONE, COMMENTARIES
192-93 [hereinafter cited as BLACKSTONE], in which the author restated the rule:
[W]hen an involuntary killing happens in consequence of an unlawful act, it will be
either murder or manslaughter . . . . If it be in prosecution of a felonious intent, or
in its consequences naturally tended to bloodshed, it will be murder; but, if no more
was intended than a mere civil trespass, it will only amount to manslaughter.
Id.
Murder and manslaughter were punished similarly at early common law, since they were
the same crime (mens rea was not considered an element of the crime). Id. at 224. Both crimes
were subject to the benefit of clergy, which allowed literate persons charged with
crime-originally only members of the clergy-to be tried by ecclesiastical tribunals. This
had the effect of harboring the felon from the gallows, since ecclesiastical courts did not
impose the death sentence. For a discussion of benefit of clergy, see 1 F. POLLOCK & F.
MAITLAND, THE HISTORY OF ENGLISH LAW 441-57 (2d ed. 1898) [hereinafter cited as POLLOCK
& MAITLAND].
When first developed, application of the felony-murder doctrine was of little
consequence, since the punishment for all felonies was death, and it made little difference whether
the guilty party was hanged for the homicide or for the underlying felony. See Powers v.
Commonwealth, 110 Ky. 386, 416, 61 S.W. 735, 741 (1901). Benefit of clergy was later denied
to murderers and their accomplices under a series of statutes passed between 1496 and 1547.
12 Hen. 7, c. 7 (1496); 4 Hen. 8, c. 2 (1512); 23 Hen. 8, c. 1, §§ 3, 4 (1531); 1 Edw. 6, c. 12, §
10 (1547). See POLLOCK & MAITLAND, supra at 476; Perkins, A Re-Examination of Malice
Aforethought, 43 YALE L.J. 537, 542-43 (1934) [hereinafter cited as Perkins]. With the
elimination of benefit of clergy for murder, the felony-murder doctrine operated to bring to the
gallows those literate criminals who would otherwise be more leniently punished in the
ecclesiastical courts for the underlying felony and the manslaughter.
In most states, the underlying felony must be one of those enumerated by statute or
considered "inherently dangerous" to human life. See notes 12-37 and accompanying text
infra.
Some states require not only that the death occur during the perpetration of the felony,
inherent in its application,' the doctrine has been subjected to a variety of
limitations.3 Few states, however, have gone so far as to abolish felony
but also in furtheranceof the criminal intent. See note 74 and accompanying text infra. Other
jurisdictions extend "perpetration" to include attempts and/or flight from the scene. See
notes 72-73 and accompanying text infra.
The felony-murder doctrine has been the subject of vitriolic criticism for centuries. Early
critics included Judge James Fitzjames Stephen, who considered the felony-murder doctrine
as stated by Coke "astonishing." Coke would have applied the doctrine to a death occurring
as a result of any unlawful act. See E. COKE, THIRD INSTITUTE 56 (6th ed. 1680). Judge Stephen
found even the Foster version of the rule, which required only that the underlying unlawful
act be a felony, see M. FOSTER, CROWN LAW 258 (2d ed. 1791), to be "cruel and monstrous."
3 J.STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND 57-75 (1883). Judge Stephen has been
credited with shaping the felony-murder rule in England by his instruction to the jury in
Regina v. Sern6, 16 Cox Crim. Cas. 311 (Q.B. 1887):
[I]nstead of saying that any act done with intent to commit a felony and which causes
death amounts to murder, it would be reasonable to say that any act known to be
dangerous to life and likely in itself to cause death, done for the purpose of committing
a felony which causes death, should be murder.
Id. at 313, quoted in S. KADISH & M. PAULSEN, CRIMINAL LAW AND ITS PROCE (...truncated)