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The Felony-Murder Rule

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Under the felony-murder rule, a killing occurring during the commission of specified felonies is murder without the need to show intent to kill.  For the most part, this rule just relieves the prosecution of proving intent in cases where the circumstances indicate an intentional killing, but the only witness other than perpetrator(s) is dead, and eliminating him as a witness is often the motive for the killing.  The rule is especially important in multiple perpetrator cases where each says the other did it.

Genuinely accidental killings in the perpetration of a felony are things you see more often on law school exams than in real life.  Yet we do have such a case today from the California Supreme Court, People v. Wilkins, S190713.
Defendant Cole Allen Wilkins was convicted of first degree murder under a felony-murder theory that the victim was killed during the commission of a burglary. The evidence at trial established that defendant burglarized a house under construction and loaded some large household appliances onto the back of a pickup truck. Sometime later, as he was driving on a freeway, an unsecured stove stolen in the burglary fell off his truck. Another driver swerved to avoid the stove, crashed into a large truck, and was killed. The trial court instructed the jury that in order for the felony-murder rule to apply, the burglary and the act causing the death must be part of one "continuous transaction." (See CALCRIM No. 549.) It refused defendant's request that the jury be instructed that, for purposes of felony murder, the felony continues only until the perpetrator has reached a place of temporary safety. (See CALCRIM No. 3261.) The Court of Appeal found no error in the trial court's refusal to instruct the jury on the so-called "escape rule" and affirmed.

We conclude that it was error to refuse the instruction on the escape rule and that the error requires reversal of defendant's conviction.

Continuous transaction or not, I find myself in rare agreement with the defense side that convicting this guy of murder is overboard.  He is no more culpable in the death of the unfortunate motorist than if he were driving drunk, which in most cases would be manslaughter.

There have been proposals from time to time to abolish the felony-murder rule by statute.  I would prefer to soften it with a partial affirmative defense.  If a defendant proves lack of intent to kill by preponderance of the evidence, reduce the homicide to manslaughter.  If a bank teller was clearly killed intentionally during a robbery, but Bonnie and Clyde each say the other did it, let them make their cases in the same trial to the same jury.

1 Comment

I am a big fan of the felony-murder rule, and I don't think it should be weakened one iota. I do agree that in this particular case, the courts should probably come to the conclusion that proximate cause really isn't present here.

To soften the felony-murder rule would allow people who knowingly engage in serious crime to escape full blame for deaths they brought about. For example, in the infamous Kenneth Foster case, Mr. Foster joined a co-defendant who asked him, "I'm strapped; you wanna jack." And then they proceeded to terrorize numerous law-abiding citizens in San Antonio. Does anyone think that Foster wasn't responsible, as a murderer, when one of the robberies "went bad"?

The felony-murder rule also incentivize criminals to police each other when they act in concert.

Finally, there are a lot of "accidental" deaths that result from robberies etc. Should a robber escape a murder charge if his victim dies of a heart attack? Should he escape a murder charge if an innocent bystander is killed by a police response?

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