CRIMINAL HOMICIDE

1. THE FELONY MURDER RULE

• Common law felony murder rule: a person who kills during the commission or attempted commission of a qualifying felony has
committed second degree murder.
o Can be elevated to first degree if killing occurred during perpetration or attempted perpetration of an enumerated felony
(arson, robbery, rape, etc.)
o Not limited to foreseeable deaths (Stamp)
• The felony murder rule artificially imposes malice as to one crime bc of a D’s commission of another and thereby satisfies the standard
of culpability necessary to raise a homicide to murder
o Imputation of malice that justifies the felony murder rule is dependent on the perpetrator’s life-threatening state of mind
accompanying the commission of the underlying felony (Ford v State)
• Often described as a strict liability crime, so person can be convicted of murder even if there was no intent and was not reckless or
negligent.
• Limiting rules to felony murder rule in MANY jurisdictions:
o (1) the inherently dangerous felony limitation, (2) the “res gestae” requirement, (3) the merger doctrine, and (4) the
agency rule.

A. The inherently dangerous felony limitation

• Under the 2nd degree felony murder rule, a homicide is 2nd degree murder if it is committed in the perpetration/attempted
perpetration of any felony that is inherently dangerous to human life
• Standard of review: Question of law and fact. What evidence- if any –may we look to?
o The particular crime at issue (People v. Patterson) or evidence of the danger of underlying felony garnered from expert
testimony (People v. Taylor)
o Basically, evidence of whether a felony is inherently dangerous using scientific, medical, or technological expertise,
rather than common knowledge
• TEST: “in determining whether a felony is inherently dangerous, courts use the ‘viewed in the abstract’ analysis, not to the D’s
specific conduct”
o The jury must determine whether the felony underlying a second-degree felony murder charge is inherently dangerous
based on the manner in which the felony was commited (Ramirez v State)
• Inherently dangerous felony:
o a felony which, by its very nature cannot be committed w/o creating a substantial risk that someone will be killed
(people v burroughs)
o An offense carrying a high probability that death will result (People v Patterson)
o A felony that is “dangerous per se” or “by its circumstances creates a foreseeable risk of death

i. People v. James
1. D was found guilty of second-degree murder of her children since manufacturing methamphetamine is an inherently
dangerous felony for purposes of the second-degree felony murder rule
ii. Hines v. State
1. D was found guilty of felony murder for accidentally shooting friend during a hunting trip. D was a convicted felon
and was therefore committing a felony by possessing a firearm. The ct affirmed, finding that D’s violation of the
prohibition against convicted felons possessing firearms was an inherently dangerous felony that could support a
felony murder conviction.

B. The Res Gestae Requirement (Scope)

 • (1) the felony and homicide must be close in time and distance (People v Bodley)

o “Place of temporary safety rule” states that felon is liable for felony murder until they reach a place of temporary safety

o “Escape rule” states that perpetration of robbery continues, for felony murder liability purposes, so long as the Ds are in
flight from the scene of the crime and have not yet reached a place of temporary safety

o TEST: the duration of felony murder liability is determined if the killing and the felony are parts of one continuous
transaction, including the escape (one continuous transaction analysis)

▪ not by considering whether the felony itself has been completed

• (2) AND the res gestae requirement demands a causal connection between the felony and the homicide (People v Stamp)

o Homicide must stem from the commission of the felony.

o The killing must have been done by the D or by an accomplice acting in furtherance of the felonious undertaking
(Redline pg 419)

o Cts either require a “but for” or “proximate” causal connection

i. People v. Bodley
1. ONE CONTINUOUS TRANSACTION TEST
2. D was found guilty of felony murder after, while burglarizing a supermarket, D ran over and killed an employee
who was chasing him
3. “A killing which occurs during the perpetrator’s fight from a burglary occurs ‘in the perpetration’ of the burglary
and therefore is felony murder”
ii. People v. Stamp
1. BUT FOR ANALYSIS AKA CAUSAL CONNECTION
2. D was found guilty of felony murder when a man died from a heart attack while Ds were robbing his store, even
though the victim had a high propensity for heart problems. This was concluded bc the court found that “but for the
robbery, there would have been no fatal seizure at that time.”
3. The doctrine of felony murder is not limited to those deaths that are foreseeable.
4. “So long as life is shortened as a result of the felonious act, it does not matter that the victim might have died
soon anyway.”
iii. King v. Commonwealth
1. Q OF LIABILITY FOR DEATH OF CO-FELON
2. D and co-felon were flying over 500 lbs of marijuana to VA. Co-felon was killed when the plane, flown by co-felon
himself, crashed into a mountain due to fog. D survived and was found to be not criminally liable for the death.
3. (1) Only acts causing death which are committed by those involved in the felony can be the basis for a conviction,
(2) the act causing death must result from some effort to further the felony before malice can be imputed to that act,
and (3) there must be some act attributable to the felons which causes death

C. The Merger Doctrine

• Felonies that are assaultive in nature “merge” w the homicide and cannot serve as the basis for a felony murder conviction

o Basically, if the underlying felony is deemed to be assaultive, the felony murder rule is inapplicable, and the government
must prove malice aforethought some other way than through the felony murder rule.

• Developed due the understanding that the underlying felony must be an independent crime and not merely the killing itself

o Sarun Chun, an underlying felony that is assaultive in nature necessarily merges w the homicide and cannot be the basis
for a second-degree felony murder instruction

▪ Assaultive felony: any felony that involves a threat of immediate violent injury

• Independent felonious purpose test: First, determine if the underlying felony is assaultive. If so, determine whether the D had an
independent felonious purpose (whether D, in committing the felony, had a purpose other than assaulting the v)

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 o If the court finds an independent felonious purpose, the felony will not merge with the homicide and the felony murder
rule may be applied if the other limitations are met.

i. Rose v. State
1. The D was found guilty of second-degree murder with the use of a deadly weapon fo r accidentally shooting his
girlfriend in the head. The underlying felony was felonious assault. D wanted to appeal since felony murder
doctrine does not require mens rea or intent. However, the court reversed the conviction and remanded it since D’s
underlying felony was an assault.
2. They agreed w CA’s supreme court that allowing assaultive type felonies to form the basis for a second -degree
murder conviction based on the felony murder rule would mean that virtually every homicide would occur in the
commission of a felony and therefore be murder

D. Third party killings: the agency rule

• If a third party, someone other than the felon or one of his agents, is responsible for the killing, the felony murder rule does not
apply, and the prosecutor must prove malice aforethought using another theory of malice aforethought.

o Doctrine does not extend to a killing, although growing out of the commission of the felony, if directly attributable to
the act of one other than the D or those associated w him in the unlawful enterprise (State v Canola)

• In order to convict for felony murder, the killing must have been done by the D or by an accomplice or confederate or by one
acting in furtherance of the felonious undertaking. (Commonwealth v Redline and People v. Harrison)

• Does not apply to “shield cases” where the Ds use innocent victim as a human shield and victim is killed by law enforcement or
other third party (Taylor v State and Keaton v State) pg. 429

o Also does not apply to the death of a co-felon (State v Canola dissent)

• A minority of jurisdictions permit felony murder liability even if the killing was by a third party relying on principles of
PROXIMATE CAUSATION

i. State v. Canola
1. LIABILITY FOR DEATH OF CO-FELON BY VICTIM
2. Ds were robbing a store when one of the victims of the robbery shot and killed one of the co -felons. The victim was
also killed. The Ds were found guilty of felony murder for both the victim and the deceased co-felon. The Ds
brought an appeal to determine if whether a broader concept than the foregoing- specifically liability of a felon for
the death of a co-felon effected by one resisting the felony- is required by the language of our statute applicable to
the general area of felony murder.
3. The court modified the judgement of the lower court to strike the conviction and sentencing of the D for the murder
of co-felon since the traditional view of the felony-murder rule is that it does not extend to the killing if directly
attributable to the act of one other than the D or co -felons. The death of a co-felon is an exception to the rule even
if killed by another felon as it is classified as a justifiable homicide.

2. THE MISDEMEANOR MANSLAUGHTER DOCTRINE

A. Misdemeanor Manslaughter Doctrine
• A homicide that occurs during the commission of (1) a misdemeanor, or (2) a felony that cannot serve as the underlying felony for
a felony murder conviction constitutes involuntary manslaughter
• Unintended homicide which occurs during the commission of an unlawful act not amounting to a felony constitutes the crime of
involuntary manslaughter (Todd v State)
o Misdemeanor: an unlawful act not amounting to a felony
o Manslaughter: the killing of a human by another human being w/o malice aforethought
• Limitations vary by jurisdiction:
o doctrine only applies to deaths that occur during the commission of a misdemeanor (malum in se or evil in and of itself)

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 o “Inherently dangerous” restriction, holding that the misdemeanor must be inherently dangerous to life or safety.
o not apply the doctrine if the underlying crime is a strict liability crime
o no limitations on the type of act
o require the misdemeanor to be the actual and proximate cause of death
o not require any causal relationship between the commission of the misdemeanor and the death

i. Todd v. State
1. D was charged w manslaughter when, after D stole money from collection tray at church, victim died of cardiac
arrest while driving car in pursuit of D. Court claimed that D caused the death of V by committing the misdemeanor
offense of petty theft which caused V to pursue him.
2. Charge was reversed when court found that the petty theft did not encompass the kind of direct, foreseeable risk of
physical harm that would support a conviction of manslaughter. They also found that the relationship between the
unlawful act committed (petty theft) and the result effected (death by heart attack during pursuit in a car) does not
meet the test of causation.

SEXUAL OFFENSES

3. INTRO
• CL recognizes three basic sexual offenses:
• (1) Forcible rape
o Original: “the carnal knowledge of a woman forcibly and against her will (no mens rea, general intent)
• (2) Statutory rape
o Original: Sexual intercourse w a female under the age of consent (no mens rea, strict liability)
• (3) Sodomy
o Original: crime against nature, not requiring force or consent

4. FORCIBLE RAPE
• Many of the old common law rules of forcible rape have been abandoned
• The central question that divides courts and legislatures is whether rape should be defined as involving force or absence of consent
o The oldest definition of rape from CL contained both force and non-consent elements
o Some courts today require clear-cut evidence of physical violence to satisfy the force element, while others deem sexual
contact to be force if victim clearly did not consent
• Mens rea of rape
o Courts whose codes use CL agree that rape is a GENERAL INTENT crime, and the D must have intended to have sex by
force, threat of force, w/o consent, knowledge of non-consent, recklessness, or negligence (varies by jurisdiction)
o Other courts treat the force requirement as STRICT LIABILITY, where, if the D intended to have intercourse w the victim,
he is guilty of forcible rape if intercourse was by force or threat of force (and w/o consent)
• Actus reus of rape
o Intercourse by force or threat of force
o Intercourse w/o consent

A. The element of force or threat of force

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 • In many forcible rape cases, the critical question is whether the D used either for or threat of force to accomplish sexual
intercourse

o Force definition varies from physical violence, physical resistance, etc.

▪ Today, proof of deadly force is no longer required to satisfy the force element of rape and evidence of
resistance has been weakened although it can still be used
• Most jurisdictions require evidence that the D did something to put V in a reasonable apprehension of serious physical harm
o General rule is that subjective fear of D is insufficient to prove threat of force but can be used in some
o Reasonable person test: reasonable person in the V’s shoes would have feared serious physical harm
• Hazel v State: force is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion that
either the victim resisted, and her resistance was overcome by force or that she was prevented from resisting by threats of her
safety (pg. 442)
• Winegan v State: If the V’s story could not be corroborated by wounds, bruises, or disordered clothing, the lack of consent could
be shown by fear based upon reasonable apprehension (pg. 442)

i. Rusk v. State
1. D was convicted of rape in the second degree and of assault when V accused him of raping her by threat of force.
He claims that the sex was consensual as he did not use physical force to have sex. She claims that he stole her
keys, told her he wouldn't hurt her if she had sex w him, and choked her to scare her into sex.
2. Court relied on lack evidence of resistance on the V’s part and lack of evidence of harm to reverse the D’s
conviction, stating that her not attempting to escape and subjective fear was not enough to constitute forcible
rape.They also said that “lightly choking” her was not sufficient to cause a reasonable fear which overcame her
ability to resist.
3. DISSENT: By taking her car keys and demanding she accompany him after repeatedly saying no, the D implied that
at the very least she may be stranded. If the D demanded V’s wallet instead of her body, there would be no question
of his guilt of robbery. Court has ignored that V offered verbal resistance that is prudent, common, and
recommended by law enforcement agencies and that the reasonableness of her apprehension is inherently a question
of fact for the jury to decide. V who resists is more likely to be hurt or killed.
a. Article
ii. State v. Alston
1. D and V were in a consensual sexual relationship for a few months until they broke things off. After a month of
their breakup, D found V and demanded she walk with him. He did so by force at first, but then let go. V said she
kept walking w him bc she was scared. D threatened to “fix” V’s face. D demanded that they have sex to which V
said nothing. V told D she did not want to have sex but did not push him away.
2. Court reversed and remanded D’s conviction of rape since second-degree rape requires the D to obtain sexual
intercourse by force and w/o consent. While V did not consent, they did not prove force or threat of force, so he is
not guilty of rape in the second degree.