The Felony-Murder Rule: In Search of A Viable Doctrine

The Catholic Lawyer, Apr 2017

By Jeanne Hall Seibold, Published on 04/19/17

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The Felony-Murder Rule: In Search of A Viable Doctrine

The F elony-Murder Rule: In Search of A Viable Doctrine Jeanne Hall Seibold Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Criminal Law Commons Recommended Citation - 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)


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Jeanne Hall Seibold. The Felony-Murder Rule: In Search of A Viable Doctrine, The Catholic Lawyer, 2017, Volume 23, Issue 2,